Category Archives: Legal Times

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

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The Rule of Nonsense at Harvard Law

by Stuart Taylor, Jr.

The whiff of censorship is in the air at the Harvard Law School. Look for a push by the faculty’s left wing this fall to adopt a campus speech/"harassment" code-one of those affirmative-action models aimed at punishing insensitivity toward women and minorities while smiling on the stigmatization of white males.

And look for more demands for appointment of a faculty-student committee-selected by racial and sexual quota-to investigate the "atmosphere" for signs of a "hostile environment."

The stage has been set by the widely publicized outcry this spring over the unfortunate scribblings of two student members of the Harvard Law Review. A sampling of the reaction;

• An open letter by "15 faculty members including liberal luminary Laurence Tribe declared the article a symptom of a law-school environment "seriously hostile to women" and pervaded by "institutional sexism and misogyny," especially in its hiring practices.

• Professor Elizabeth Bartholet added that the "incident and the charges of related matters involving treatment of women … involve conduct that is arguably illegal under federal and state civil rights law governing sex discrimination and sexual harassment," and "possibly tortious."

• Professor David Kennedy pressed the law school’s administrative board to bring formal discipline against the offending students because their actions-"lie … at the point where sexual harassment verges into assault," and involve "a terrorization of women general and feminist women in particular"-even "a direct threat of personal violence."

This outpouring of learned nonsense was provoked by students engaging in what used to be called pure speech: the publication of a parody.

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Enough of the Grand-Jury Sham

by Stuart Taylor, Jr.

"The grand jury . . . historically has been regarded as a primary security to the innocent against hasty, malicious and oppressive prosecution; it serves the invaluable function in our society of standing between the accuser and the accused."

Hogwash.

There was not much left of the grand jury’s role as a check on prosecutors when Chief Justice Earl Warren wrote these words 30 years ago, in Wood v. Georgia. There is almost nothing left of that role now, as Justice Antonin Scalia made clear in his little-noticed opinion on May 4, in United Stales v. Williams. The 5-4 Supreme Court decision strongly suggested that courts may never dismiss an indictment on the ground that the prosecutor refused to share exculpatory evidence-no matter how compelling-with the grand jury.

Scalia’s categorical assertion of "the grand jury’s functional independence from the judicial branch" also bespeaks a broader agenda of locking the grand jury into its modern role as the docile tool of executive-branch prosecutors by foreclosing any possibility of meaningful judicial supervision.

The Williams decision makes it clearer than ever that Congress should act to make the grand jury a real check on prosecutors-or, if it won’t, that all of us should put an end to the grand-jury charade.

By this I mean the habit of lawyers, judges, journalists, and others of routinely using the "grand jury" prefix to lend a false patina of solemn, communitarian legitimacy to investigations, subpoenas, and indictments that are, in fact, essentially unilateral decisions by prosecutors.

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Special Journalist Indicts Special Counsel

by Stuart Taylor, Jr.

Judge Malcolm Wilkey, Retired "Special Counsel" c/o Attorney General William Barr Department of Justice Washington, D.C. 20530

Dear Judge Wilkey:

By open letter of April 20, 1992, the Office of Special Journalist notified you of our self-appointment to investigate your investigation of the so-called House Bank.

You are hereby notified that our grand jury (a rubber stamp, like yours) has returned an indictment charging you with four counts of prosecutorial misconduct:

(1) knowingly presenting the House of Representatives with a grotesquely overbroad subpoena for financial records of all 435 members;

(2) smearing the Congress with a false aura of criminality, for the purpose and with the effect of coercing members to abandon their constitutional rights to challenge said subpoena;

(3) betrayal of your own first principles;

(4) false pretense of impartiality, while acting like a ventriloquist’s dummy for your very partisan former law clerk. Attorney General William Barr.

Our investigation continues into whether you may have committed more serious offenses. These may include conspiracy to abuse the Justice Department’s authority to help President Bush and other Republican candidates under the guise of non-partisan criminal investigation.

We have been so impressed (though hardly pleased) by the boldness of your drift-net fishing expedition into House members’ financial affairs that we are using your subpoena as a model. Accordingly, we hereby demand that you supply the Office of Special Journalist, by Thursday, May 7, with:

A. All extant banking, credit-card, investment, gambling, speech-honoraria, and other financial records; all tax returns; and all professional and personal correspondence, telephone records, and medical records, for you since birth, and for your wife since you were married.

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From the Files of a ‘Special Journalist’

by Stuart Taylor, Jr.

Judge Malcolm Wilkey, Retired

Special Counsel
c/o Attorney General William Barr
Department of Justice
Washington. D.C. 20530

Dear Judge Wilkey:

 

I have appointed myself "Special Journalist" to investigate your investigation into whether any crimes were committed by members of the House of Representatives in connection with the so-called House Bank.

This is your formal notice of investigation and first set of interrogatories.

The issue under investigation by the Office of Special Journalist is whether any crimes, abuses of prosecutorial power, or sleazy political stunts have been, are being, or may in the future be committed in connection with your inquiry.

I. Factual Predicate

The factual predicate of the investigation includes allegations that your inquiry is being exploited for partisan political advantage by the Attorney General and/or other members of the Bush Administration.

Anonymous informants no less reliable than the Justice Department witnesses in the Manuel Noriega case have reported to this Office that such a political conspiracy may exist; that its members may include the Attorney General, U.S. Attorney Jay Stephens, and others; and that you may have been its witting or unwitting tool.

Among the allegations are the following:

(1) That public disclosures to date contain not a shred of evidence that any serious prosecutor would consider a reasonable basis for suspecting criminal activity by any House member.

(2) That while a handful could conceivably owe back taxes for any overdrafts large enough to be considered interest-free loans, that’s no crime, as you well know.

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On Appeal, KO the Tyson Verdict

by

Stuart Taylor, Jr.

A prediction: Mike Tyson’s rape conviction will be reversed on appeal.

It certainly should be. The trial judge denied Tyson a fair trial by unjustifiably excluding important defense evidence, including testimony that would (if true) have shown Tyson’s accuser lied when she denied necking in his limousine.

Judge Patricia Gifford may also have violated due process in using Indiana’s rape shield law to bar evidence of a possible motive for Tyson’s accuser to fabricate the rape charge.

And the judge erred egregiously in refusing to tell the jury that the prosecution must prove that Tyson did not reasonably believe that Desiree Washington had consented to sex.

These flaws in Tyson’s trial in Marion County Superior Court, in Indianapolis, were so palpable that on the merits, at least, this date-rape appeal should be like shooting fish in a barrel.

So please, when the Feb. 10 conviction is reversed, spare us another self-promoting movie a la "Reversal of Fortune" about Harvard law Professor Alan Dershowitz (Tyson’s new lawyer) brilliantly riding to the rescue.’

And conversely, if the Indiana courts prove unwilling to correct this clear injustice, let’s not blame Dershowitz. This appeal will turn on the quality of the judging, not of the lawyering.

That’s not to say Tyson is innocent, or Washington is lying. He has a long, ugly history of brutal conduct towards women, and the excluded evidence doesn’t prove he did not rape the 18-year-old beauty contestant. It just casts grave doubt on the credibility of the only witness who says he did.

Tyson is entitled to a new trial at which the jury gets to hear all the relevant evidence and gets a proper instruction on the prosecution’s burden of proving criminal intent.

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Those Checks Didn’t Really Bounce

by Stuart Taylor, Jr.

We live in a country where the President has proposed a budget with a $400 billion deficit.

A country with a corrupt campaign-financing system, rotting cities, rampant violence, third-rate schools, a dying industrial base, lagging productivity, crumbling health care, grotesquely overpaid business executives and lawyers, bankrupt savings-and-loans, soul-crushing poverty, disappearing forests, profligate overconsumption of oil, richly padded employees’ expense accounts, and undisciplined voters who yelp whenever they are taxed to pay for the benefits they so insistently demand. A country that stares at the sky through a thinning ozone layer.

So what is everybody scandalized by these days? What is it that has whipped the radio talk shows into a frenzy, the public into an apopolexy, and the press into a feeding frenzy?

And what is Attorney General William Barr having investigated by a special counsel-who is the former GOP judge Barr clerked for, no less?

Why, the great congressional "check-kiting scandal," of course.

This is a scandal in which not one dime of public money was stolen or misappropriated. Nor were more than a handful of "rubber" checks on the House Bank "bounced" or "kited."

The rampant misuse of these words by virtually every mass publication in the country involves more than just loose semantics and flaccid oversimplications reverberating through the echo chamber of pack journalism.

It reflects a reckless lust to pander to public ignorance by hyping humdrum transactions that would sound far less scandalous if they were described as the interest-free overdraft privileges that they in fact were.

A couple of definitions, from Webster’s Third New International Dictionary: "Bounce. . . of a check: to be returned by a bank as no good (as because of lack of funds).”

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Thomas’ Tortuous History Lessons

by Stuart Taylor, Jr.

Justice Clarence Thomas’s eye-catching February 25 dissent in a prison-beating case left one thing a bit unclear. Suppose that instead of just loosening a few of the handcuffed prisoner’s teeth and mussing up his face while their supervisor was admonishing them "not to have too much fun," the two Louisiana penitentiary guards had gotten a little bit rough.

Suppose that they had broken both his legs, or stretched him out on a medieval rack, or torn out his fingernails, or cut off his hand, Saudi-style, or locked him naked in a freezing room.

Would that be "cruel and unusual punishment"?

No way, Thomas and his ideological mentor Antonin Scalia seem at first to suggest in Hudson v. McMillian: The Eighth Amendment was conceived two centuries ago only as a protection against punishments meted out by judges and legislatures-not against anything done to a convict once arrived at prison.

As history, that may be plausible. As constitutional law for 1992, it’s hard to stomach.

Which is why Thomas and Scalia don’t really press the point. Instead, they premise most of thei dissent on narrower grounds, indicating that they might uphold Keith Hudson’s $800 damage aware if he had suffered "serious injury."

In doing so, they expose the flaw at the heart of the "originalist" jurisprudence of which Scalia and Robert Bork are the guru’s, Thomas is an awkward apprentice, Chief Justice William Rehnquist a dabbler, and Ed Meese was once mass-marketer:

Taken to its logical conclusions, originalism leads to results intolerable even to its most ardent expositors.

These results would include constitutional indifference not only to the torture of convicts, but also to most forms of racial discrimination, ranging from state-enforced segregation of black children (the norm when the 14th Amendment was adopted) to quotas that discriminate against white males.

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Lies, Damn Lies, and Sex Lies

by Stuart Taylor, Jr.

Bill Clinton, Clarence Thomas, and Charles Robb have more in common than ill-starred acquaintanceships with women.

Their problems raise a question gnawing at our body politic: Is it ever justifiable, or at least forgivable, for one who holds or seeks high office to lie to the public to protect himself?

My gut tells me no. In a political culture increasingly polluted by mendacity of all kinds, it’s tempting to call for a zero-tolerance attitude toward political lying.

But recent experience suggests an exception: We should not judge too harshly those who lie (or whom we suspect of lying) to deflect the ever more shameless intrusions by news media into deeply private matters.

The issues are framed by the Clinton and Thomas cases. We should, of course, be reluctant to judge either of them guilty of deception without very strong proof. But suppose we had conclusive evidence that they lied. Would that alone demonstrate unfitness for high office?

The answer, I submit, should be yes in Thomas’ case and no in Clinton’s.

If I am right, then the judgment of the nation on Thomas and the conventional wisdom on Clinton are both wrong.

Thomas was confirmed even though. I am convinced, a majority of both the Senate and the public did not really believe he had told the truth, the whole truth, and nothing but the truth in his blanket denials of Anita Hill’s charges.

While many who sided with him may have believed every word of his testimony, many others-enough, probably, to account for his margin of victory-did not. They (and I) found it difficult to believe that Hill had made up her story out of whole cloth. And therefore they found it difficult to credit Thomas’ assertions that he had never once asked Hill for a date, or mentioned pornography to her, or said any of the things she alleged.

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A Quiet Crisis in the Courts

by Stuart Taylor, Jr.

There is a cancer in the federal criminal-justice system. It gets little attention from Congress, the executive branch, the media, or the public. And it is spreading fast.

Its importance to people caught up in the system, and to the judges who administer it, dwarfs that of the federal death penalty, the exclusionary rule, Miranda, date rape, gun control, and the other issues that generate headlines and heat.

The problem is federal criminal sentencing: its roots are the destruction of judicial discretion by the Sentencing Reform Act of 1984 and the mandatory minimum sentences passed by Congress since then in response to public pressure to get tough on drug abuse and crime.

The system of "guideline" sentencing ushered in by the 1984 act is "a dismal failure," as Judge Jose Cabranes of the U.S. District Court in New Haven, Conn., asserted in a speech at the University of Chicago Law School last week.

He cited "a near consensus among those who know most about the complex and difficult business of sentencing-trial judges, probation officers, defense attorneys, and many front-line prosecutors-that there is something profoundly wrong with this guidelines system and that substantial reform or abolition is the answer."

The 1984 act grew out of complaints that trial judges had such unbridled discretion that similar defendants got widely disparate sentences based on the predilections of the judge.

Congress created the seven-member U.S. Sentencing Commission to set binding guidelines based on a calibrated scale of defendants "offense levels" and criminal histories, and abolished parole.

With narrowly defined exceptions, judges were obliged to sentence every defendant within a range set by the guidelines, by choosing one of the 258 boxes in the Sentencing Commission’s grid.

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Thirty Lasches If You Win This Contest

by Stuart Taylor, Jr.

The craft of lawyering often calls for peering into the future-foretelling how new laws will be construed, how constitutional doctrine will evolve, what practice areas will be hot or cold. And a new year beckons, pristine as new fallen snow.

So step right up and take the 1992 legal prognostication quiz. Test your skills. Compete for coveted awards. (First prize: a 30-minute videotape of Moira Lasch cross-examining "sex machine" William Kennedy Smith. Second prize: a 60-minute tape.) Bill the time to continuing legal education.

(1) American lawyers who open offices in Moscow and other cities in the former Soviet Union will end the year looking: (a) smart; (b) dumb; (c) for something to eat.

(2) The most insufferable lawyer in the United States will be: (a) Alan Dershowitz; (b) John Doggett; (c) Alan Simpson; (d) Edward Kennedy;(e) Richard Nixon; (f) someone new.

(3) Robert Strauss, the Washington superlawyer who became ambassador to the Soviet Union in 1991 only to see it disappear, will close out 1992 as: (a) ambassador to the Commonwealth of Independent States; (b) ambassador to Russia; (c) ambassador to Uzbekistan; (d) ambassador to Japan; (e) a Washington superlawyer.

(4) The most sensational televised trial of 1992 will involve: (a) a man and a woman; (b) Long Dong Silver; (c) a murder; (d) a financial fraud;(e) police brutality; (f) an incompetent prosecutor; (g) Michael and Kathy, last seen at Au Bar.

(5) Justice Clarence Thomas will: (a) finally (and for the first time) decide what he thinks about Roe v. Wade; (b) finally read it; (c) vote to uphold damage awards in federal sexual-harassment suits; (d) in his first written opinion, refer to his grandfather; (e) pose for Cosmopolitan.

(6) Justice David Souter will: (a) vote to upholdRoe v. Wade; (b) vote to reaffirm and extend theban on state-sponsored school prayer; (c) getmarried; (d) pose for People magazine.