Category Archives: Legal Times

Stuart Taylor, Jr.’s Legal Times media appearances.

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Lawrence Walsh’s Self-Inflicted Wound

by Stuart Taylor, Jr.

Republican partisans have been spewing vitriol for so long at Lawrence Walsh, the independent counsel investigating the Iran-Contra affair, that it’s tempting to brush off the current claims that Walsh played a dirty election-eve trick on President George Bush as more right-wing ranting.

But this time Walsh’s critics have a point, though a more modest one than they claim: It was only natural (if ultimately mistaken) for them to suspect a political motivation when Walsh chose the last Friday before the election, Oct. 30, to drop into the public record a nugget of evidence dramatically contradicting President Bush’s claim that he was "out of the loop" on Iran-Contra.

Walsh’s critics also have a point when they complain that the mainstream media have shown a remarkable lack of interest in exploring Walsh’s October surprise, compared with, for example, the saturation coverage of the State Department search of Bill Clinton’s passport files.

It’s not that there was anything wrong per se with Walsh disclosing the evidence that so discomfited Bush-a Jan. 7, 1986, note summarizing an Oval Office meeting that day, in which then Defense Secretary Caspar Weinberger wrote that the "VP favored" an "Iranian offer to release our 5 hostages in return for sale of 4000 TOWs to Iran by Israel." Indeed, one of the reasons Congress passed the independent-counsel law was to expose executive-branch lies and quasi-lies, like Bush’s efforts to distance himself from the arms-for-hostages dealings.

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Mandatory Sentence, Minimum Sense

by Stuart Taylor, Jr.

Dear President-elect Clinton: Your wife Hillary has spoken eloquently about how painful it was for you to put your own brother behind bars, when you gave the authorities the green light to bust Roger Clinton Jr. for selling cocaine in 1984. And your brother, now drug-free and doing well, has said that you, and 15 months in federal prison, saved his life by breaking his cocaine habit.

Think about this: Your brother might well have served a mandatory prison term of at least five years, without parole, if the current federal drug sentencing laws had been in effect when he was arrested. And with a little bad luck-if, for example, his drug of choice had been crack cocaine-he could still be behind bars, serving a 10-year mandatory term.

What chance would a sentence like that have left Roger of salvaging a decent life? What purpose would it have served in the war against crime? Would it have been just?

This example should burn in your conscience until you do something about the most outrageous single source of injustice, waste, cruelty, and stupidity in the federal criminal-justice system today: the sentencing of non-violent, small-time drug offenders like Roger, by the thousands, to prison terms of five, 10, and even 20 years without parole, under the system of mandatory minimum sentencing laws that the Reagan and Bush administrations have whooped through Congress since 1986.

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When Quick Justice Is No Justice at All

by Stuart Taylor, Jr.

Is there a constitutional right not to be executed for a crime of which you’ve been convicted but can now prove your innocence?

The question answers itself: Of course there is. But Assistant Attorney General Margaret Griffey of Texas gamely maintained the contrary in an Oct. 7 argument before the Supreme Court in Herrera v. Collins.

"Suppose you have a videotape which conclusively shows the person is innocent, and you have a state which, as a matter of policy or law or both, simply does not hear new evidence claims," Justice Anthony Kennedy asked. "Is there a federal constitutional violation?"

"No, Your Honor, there is not," Griffey responded, asserting that such an execution "would not be violative of the Constitution."

Wow. It is a measure of the death penalty’s current vogue that such a position could be maintained before the nation’s most august tribunal without provoking gasps of disbelief.

But the issue in Herrera is not quite as simple, and the state’s position not quite as absurd, as this exchange might make it seem. Rather, as Solicitor General Kenneth Starr contends in the Bush administration’s amicus brief, the central question is whether the settled constitutional rule against executing an innocent defendant "requires a state to establish a judicial, post-conviction mechanism for entertaining a prisoner’s challenge to his conviction on the basis of newly discovered evidence."

Starr’s answer is no: The states are not required by the Constitution-and federal judges are not permitted by the habeas corpus statute-to afford any prisoner even the most cursory hearing into newly discovered evidence, no matter how much doubt it may cast on his guilt.

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Iraqgate: A Goof or a Felony?

by Stuart Taylor, Jr.

Before Attorney General William Barr-spoiled the symmetry on Friday, we had a near-perfect Washington triangle: FBI Director William Sessions was investigating the Central Intelligence Agency and the Justice Department. The CIA was investigating itself. And the Justice Department was investigating Sessions, his assistant, and his wife.

And now comes Frederick Lacey, a retired federal district judge from New Jersey whom Barr-named as "independent counsel"-but not the normal, court-appointed kind-to investigate Justice’s "Iraqgate" investigation.

It was a wise move by Barr, although it’s unclear whether Lacey’s probe will carry the same credibility as would one by a court-appointed independent counsel. (Lacey’s assignment includes advising Barr on whether to seek a court-appointed independent counsel later.) Barr-said that his subordinates "deserve to be exonerated," but that "in the current political climate, I have regrettably concluded that if I determine that they have done nothing wrong, they will not receive that exoneration.”

That’s one of the reasons why Iraqgate is a textbook illustration of the need for some kind of mechanism-not necessarily the one we have now, which will expire on Dec. 15-for referring such politically charged matters to prosecutors genuinely independent of the incumbent administration. Barr’s solution of making the appointment himself may get him past this crisis, but for the long term it’s not good enough.

What gave this scandal legs was the flap over the submission by Justice and the CIA of a misleading-or, at best, incomplete-Sept. 17 CIA letter to U.S. District Judge Marvin Shoob, who was presiding over a case involving billions of dollars in allegedly illegal loans to Iraq that were funneled through the Banca Nazionale del Lavoro in Atlanta.

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Beyond No-Fault: A Modest Proposal

by Stuart Taylor, Jr.

Largely unnoticed amid the Bush-Quayle campaign’s puerile lawyer-bashing, a few ideas are kicking around that could save billions of dollars in legal waste.

This column is about one such idea, a modest proposal for federal legislation to save up to $30 billion a year in car-insurance premiums. The Bush campaign is said to be flirting with the proposal. It would give conniptions to lawyers who feed at the personal-injury trough; and for that reason, it might be a good test of Bill Clinton’s willingness to embrace sensible tort reforms.

The proposal, conceived by Professor Jeffrey O’Connell of the University of Virginia Law School and Michael Horowitz of the Manhattan Institute, would, in essence, permit individual consumers to choose whether to cut their auto-insurance premiums dramatically by giving up their rights to seek, and their duties to pay, compensation for any negligently caused "pain and suffering." It would also assure people prompt payment for their own economic losses without regard to fault.

Most people (especially poor people) would jump at the chance, especially with premiums exceeding $1,000 a year in many areas. Rational consumers insure against out-of-pocket losses such as medical costs, not against intangible harms like pain, for which dollars are not real compensation.

That’s why you wouldn’t even think about, say, paying a higher health-insurance premium to get compensation for any pain and suffering that you might endure as a result of an accident at home.

If enacted, the O’Connell-Horowitz proposal could lead to cuts of as much as 60 percent in the average car-insurance premium’s personal-injury component, according to a Rand Institute study. That would amount to a 30-percent reduction in the overall premium, since about half of it is for property damage.

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Prosecutors Playing a Broken Record

by Stuart Taylor, Jr.

What do former CIA official Clair George, the four Los Angeles cops who beat up Rodney King, Clark Clifford, his co-defendant Robert Altman, and E. Robert Wallach have in common?

Each is threatened with multiple criminal trials on essentially the same charges. That may be legal, under various judge-made loopholes in the double-jeopardy clause. But it’s not fair. And it illustrates pervasive prosecutorial disregard for the spirit of the constitutional guarantee.

Prosecutors, armed with the awesome machinery of the criminal law, should be satisfied with one clean shot at a defendant, even if they miss. But more and more we see them forcing their quarry to spend years of their lives and millions of dollars to defend themselves even after winning acquittals, or near-acquittals.

Many in the press seem to see double-jeopardy rules as mere technicalities to be circumvented when they get in the way of a good show. And even the American Civil Liberties Union, understandably loath to let police brutality go unpunished, is waffling on its opposition to successive state and federal prosecutions.

But as the Supreme Court said in 1957, in Green v. United States, successive prosecutions undermine liberty by subjecting the defendant to "a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty."

The potential for oppression by multiple prosecution is all the more apparent in white-collar and other complex cases. With trials grinding on for weeks or months, the million-dollar defense has become a routine necessity, leaving even acquitted defendants in financial ruin after a single trial, let alone two.

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Go Back, Huddled Masses?

by Stuart Taylor, Jr.

How desperate must people be to leave their homes and families, crowd into rickety boats, and brave death at sea in the forlorn hope of drifting hundreds of miles to foreign shores, where prison camps await them? Are they driven by poverty? Or by persecution?

President Bush doesn’t want to know. He just wants to send Haitian boat people back to whatever fate awaits them, no questions asked. And so, it seems, do most of the rest of us.

The Bush policy, aptly termed a "floating Berlin Wall" by critics, is to intercept all Haitian boat people on the high seas and return them promptly to their island prison-perhaps to be murdered by their persecutors-without pausing for even a perfunctory hearing of their claims to political asylum.

Announced on May 23, this policy was found illegal by the U.S. Court of Appeals for the 2nd Circuit on July 29 but remains in force by virtue of a 7-2 Supreme Court vote to issue a stay while weighing the administration’s appeal.

Illegal or not, the naked inhumanity of the Bush policy goes largely undenounced, even by Democrats. It rates only perfunctory press attention and far less public outcry than, say, the plot to move the Washington Redskins to Virginia. Most voters in South Florida want to keep the Haitians out. The rest of us would rather not think about them.

Why are we so callous?

A confession: When I force myself to focus on the boat people, my first impulse is to let them in-all of them. But then irresolution creeps in.

The first impulse is that the entire distinction between political refugees and economic migrants, which has been used for years to fence out most Haitian boat people, seems obscenely legalistic in the face of their desperate flight. The Bush administration’s relentless tightening of the screws, and the fact that these unwelcome refugees all happen to be black, only makes an ugly situation worse.

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A Primer on the Washington

by Stuart Taylor, Jr.

Item: The pending Iran-Contra trial of Clair George, the former third-ranking official at the Li Central Intelligence Agency, will soon revisit a curious scene, through the words of a key prosecution witness:

George’s subordinate Alan Fiers (the witness) is summoned to an October 1984 meeting in the office of the late CIA Director William Casey. George and Oliver North are there. "Ollie," says Casey, "Alan tells me you’re operating in Central America. Is that true?" "No, sir," responds North. "Good," says Casey. "I want you to understand that you’re not to operate in Central America." Later, George tells an incredulous Fiers, "What you saw going on in there was a charade." The implication: North would continue operating in Central America, with Casey’s blessing.

Item: A Nov. 24, 1986, White House meeting is described as follows in Independent Counsel Lawrence Walsh’s indictment of former Defense Secretary Caspar Weinberger:

President Reagan and his top seven aides are discussing how to respond to the rapidly breaking Iran-Contra scandal. Attorney General Edwin Meese III tells the group that his investigation has concluded that the president had not been told of a possibly illegal 1985 arms shipment. Some or all of those present know this to be false. But nobody corrects Meese, who tells the nation a similar story the next day, at a nationally televised news conference.

Item: Toward the end of an April 15, 1973, meeting with President Nixon, White House Counsel John Dean was surprised when Nixon "got up out of his chair, went behind his chair to the corner of the Executive Office Building office, and in a barely audible tone said to me he was probably foolish to have discussed [E. Howard] Hunt’s clemency with [Charles] Colson." This led Dean to suspect that the office was bugged. (It was.)

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A Step Toward a Jury of One’s Fears

by Stuart Taylor, Jr.

"We have exalted the right of citizens to sit on juries over the rights of the criminal defendant, even though it is the defendant, not the jurors, who faces imprisonment or even death."

Justice Clarence Thomas, who has often condoned unfairness to defendants, has it right this time. His was the most telling point in the fiveopinions generated by the Supreme Court’s unfortunate June 18 decision to bar criminal defendants and their lawyers from talcing account of race in jury selection.

The majority’s bizarre holding in Georgia v. McCollum was that defense lawyers violate prospective jurors’ equal-protection rights-and do so on behalf of the state-when they use their peremptory challenges to strike people they suspect might be less sympathetic to the defendant because of their race.

This does violence both to the fairness of the criminal-justice process and to the integrity of the state-action doctrine. It also, paradoxically, vindicates the symbolic appearance of racial inclusion at the expense of the concrete interest of black defendants in choosing black jurors.

McCollum has been welcomed by some as a logical and benign corollary of the Court’s 1986 decision in Batson v. Kentucky to bar prosecutors from using peremptories to remove blacks from juries.

But the reality is that Justice Harry Blackmun’s majority opinion is a classic example of good intentions gone wrong and step-by-step extensions of legal doctrine gone too far.

The notion of curbing race-based peremptories by defendants may seem momentarily attractive to liberals in the wake of the acquittal of four white Los Angeles cops, who beat black motorist Rodney King, by a Simi Valley jury that included no blacks.

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The Shame of the Southern Democrat

by Stuart Taylor, Jr.

Imagine a big, big case in which prosecutors in the proudest U.S. attorney’s office in the land are presented in midtrial with strong evidence of perjury by their star witness.

Imagine the witness then privately admitting to the prosecutors that he has just told a false cover story and offering them a revised story so preposterous that a child could see through it.

Imagine the prosecutors putting the witness back on the stand to tell this story while omitting the details most devastating to its plausibility. Imagine them persuading the rabidly pro-prosecution judge to bar the defense from putting before the jury records that conclusively proved the witness’s perjury. Imagine them vouching for the witness’s truthfulness in their summations.

That is essentially what Assistant U.S. Attorneys Baruch Weiss and Elliott Jacobson of the Southern District of New York did three years ago-with what Weiss claims was high-level approval-to convict E. Robert Wallach (former Attorney General Edwin Meese III’s close friend) on charges involving the Wedtech Corp.

And that is what prompted the U.S. Court of Appeals for the 2nd Circuit last year to overturn Wallach’s conviction as tainted, holding that "the prosecutors may have consciously avoided recognizing the obvious"-that former Wedtech official Anthony Guariglia was lying about his gambling activities.

But it didn’t end there. Now Weiss and Jacobson are pressing with self-righteous zeal to try Wallach again. And despite-or perhaps because of-the questions this case raises about the institutional integrity of his office, U.S. Attorney Otto Obermaier defends the handling of Guariglia as "fully consistent with the high ethical standards I expect" and the reprosecution of Wallach as "the right thing to do."