Category Archives: Legal Times

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

Posted on

When Judicial Flips Aren’t Flops

by Stuart Taylor, Jr.

"In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity."

Those were Justice Byron White’s words in 1966, in a forceful dissent from the Supreme Court’s 5-4 ruling in Miranda v. Arizona that police must tell arrested suspects of their rights to remain silent and consult counsel, and must cease interrogation once a suspect has requested a lawyer.

Earlier this month, however, White joined a 6-2 decision that both reaffirmed Miranda and extended it. Justice Anthony Kennedy’s majority opinion in Minnick v. Mississippi reversed a murder conviction and suppressed a confession on the ground that, after a suspect has consulted an attorney, the police may not initiate or resume questioning without the attorney present.

So Justice White’s gotten more liberal, right?

Not exactly. Take a look at his evolution on affirmative action.

In 1979, White lined up with the liberals, joining Justice William Brennan Jr.’s opinion in Steelworkers v. Weber, the first clear endorsement of racially preferential affirmative-action plans by private employers.

But by 1987, White had completed a seeming migration to the conservative, anti-affirmative-action side. Dissenting in Johnson v. Transportation Agency, he wrote, "I would overrule Weber." He complained that the Court was stretching Weber to bless reverse discrimination by any employer with a statistical imbalance in its work force, in a ”perversion” of the 1964 Civil Rights Act.

Posted on

Two Cheers for Civil-Rights Bill

by Stuart Taylor, Jr.

There is much of value in the omnibus bill unveiled last week by a bipartisan congressional coalition and leading civil-rights groups to reverse several major Supreme Court decisions last year. But the bill needs some amending.

The remedies available to victims of intentional job discrimination under current law are plainly inadequate. That was made clear by the Court’s decision last June in Patterson v. McLean Credit Union, which denied any legal redress to victims of even the most outrageous racial harassment in the workplace.

The proposed Civil Rights Act of 1990, co-sponsored by 34 senators and 123 House members, would rectify this by giving the full range of compensatory and punitive damages to victims of intentional job discrimination.

It’s sad that the Bush administration’s more limited proposal-to improve monetary redress only in cases of intentional racial discrimination-comes so late, in an apparent effort to pre-empt the congressional bill.

But methinks the champions of that bill protest too much when they insist, in the words of the Leadership Conference on Civil Rights, that it "has nothing to do with quotas or any other affirmative-action remedy."

If enacted and enforced as written, the bill’s disparate-impact provisions would create a powerful presumption that any employer with a workforce in which minorities were significantly underrepresented was guilty of racial discrimination.

The bill would also make the burden of overcoming this presumption so heavy that it could pressure employers surreptitiously to use quotas to improve their statistics-hiring and promoting racial minority-group members or women, as the case may be, on a preferential basis over equally or better qualified white males.

Posted on

Greetings From ‘Love Land’

by Stuart Taylor, Jr.

It’s hard to quarrel with the federal government’s goal of stamping out child pornography, the creation of which often involves unspeakable crimes against small children. But some of the government’s tactics make you wonder.

Take the case of Keith Jacobson, a 57-year-old farmer who spent 20 years in the military, served in Korea and Vietnam, won the Bronze Star, then returned to his native Newman Grove, Neb., to support his aging parents. He spent 10 years there as a school-bus driver.

His record was unblemished except for a 1958 drunk-driving conviction. His weakness was an interest-perhaps latent, perhaps active-in pictures of nude boys.

In 1984. Jacobson purchased by mail two nudist magazines entitled Bare Boys I and Bare Boys II. The magazines depicted no sex acts and therefore were not illegal under the federal child pornography law. But federal agents who later busted the distributor on obscenity charges found Jacob-son’s name on the distributor’s mailing list.

Suspecting that Jacobson might hunger for hard-core kid-porn, the agents targeted him-though he had done nothing illegal-in five undercover sting operations over the next 29 months. Postal inspectors posing as the "American Hedonist Society and as individual porn buffs mailed him two membership applications with sexual-attitude surveys, seven letters, and two sex catalogs. The charade was part of a sting called "Project Looking Glass," run by the U.S. Postal Inspection Service.

Jacobson’s responses showed an interest in adolescent sexuality. But he took the bait only after he had been contacted 11 times. In 1987, he ordered a magazine, which was advertised as depicting "oral, anal sex and heavy masturbation" involving boys as young as 11, from the government-front "Far Eastern Trading Co., Ltd." of Hong Kong.

Posted on

CNNs First Amendment Hubris

by Stuart Taylor, Jr.

The 1971 Pentagon Papers case tested the right of the press to expose government duplicity about important public business without submitting to prior censorship.

Now comes the Noriega tapes case, which tests (among other things) the right of a news organization to thumb its nose at the judiciary-to flout a temporary restraining order by rushing onto the air a leaked tape almost devoid of serious news value.

The Cable News Network appealed the restraining order to the Supreme Court on Nov. 15. And leaders of the media establishment took to the barricades in full First Amendment regalia to champion CNN’s right to broadcast wiretaps of Gen. Manuel Antonio Noriega consulting with his legal team.

Well they should. The lower courts’ prior restraint on CNN set a worrisome precedent. But CNN’s conduct raises troublesome questions too:

Was it wise to escalate this fight by violating the order without waiting a few days for a decision on appeal? Did the public have such an urgent need to hear this unremarkable tape without delay? If so, why did you promote the tape for a full day before putting it on the air?

Were you driven by the need to expose government misconduct? Or by the urge to flaunt your scoop for purposes of self-promotion? Was it really necessary so boldly to risk provoking the first Supreme Court ruling in history to uphold a prior restraint on news reporting?

By the way, have you noticed that this is not the same Court that decided the Pentagon Papers case-that all but two of the justices who laid down that robust precedent against prior restraint are gone?

And have you noticed that the newspapers complied with temporary injunctions in the Pentagon Papers case until the Supreme Court overturned them?

News organizations ought to have a better journalistic reason than CNN had before inviting the creation of bad law by throwing down the gauntlet to the courts as CNN did.

Posted on

Wallachs Appeal From Rampant ‘Rudyism’

by Stuart Taylor, Jr.

"There are some things that happened at the trial that I find very bothersome," Judge Thomas Meskill observed during the Oct. 23 oral arguments in the appeals of E. Robert Wallach and two co-defendants.

"Bothersome” is putting it mildly.

The closer the three-judge panel of the U.S. Court of Appeals for the 2nd Circuit-looks, the more likely it is to throw the case out as a travesty-conceived in unchecked prosecutorial zeal, compounded by a patently unfair trial, and dedicated to the proposition that criminal statutes mean whatever a prosecutor says they mean.

Some former prosecutors have a word-"Rudyism"-to describe the brand of overweening prosecutorial hardball that flowered under former U.S. Attorney Rudolph Giuliani of Manhattan. This was a case of Rudyism run amok.

Wallach, the bumptious personal-injury lawyer from San Francisco who made a new career in the 1980s out of his friendship with Edwin Meese III, was convicted on fraud, racketeering, and conspiracy charges in August 1989. His 16-week trial, together with Rusty London and Wayne Chinn, centered on their work for the Wedtech Corp., the scandal-ridden, now-defunct Bronx defense contractor.

Wallach was clearly guilty of sleaziness in the first degree for shamelessly trading on his relationship with the former White House counselor and attorney general. That’s why Giuliani’s prosecutors bent so many laws and made so many deals to get him, after trying in vain to get him to turn on Meese.

But sleaziness is not a crime. Lots of people parlay it into wealth, power, and status. Wallach’s brand was strangely mixed with a kind of egomaniacal idealism and an ardent belief (at least at first) that Wedtech, like his pro bono work in San Francisco and his efforts to free Soviet Jews, was a noble cause. Indeed, in 1981 and 1982, the Bronx native represented the minority-owned (or so he thought) company for free.

Posted on

Don’t Throw Away That Key

by Stuart Taylor, Jr.

Ronald Harmelin had no criminal record until two police officers stopped him early one morning in 1986 in Oak Park, Mich., for failure to make a complete stop at a red light.

Now he is in prison for life, without parole-the maximum penalty in Michigan for first-degree murder.

Harmelin did not kill anyone. His sentence was based solely on the officers’ discovery of 24 ounces of cocaine in the trunk of his 1977 Ford Torino.

An unemployed, drug-addicted, pool-hustling, 45-year-old Air Force veteran who had been an honor guard at President John Kennedy’s funeral, Harmelin claims he was just a "mule" transporting the cocaine to Detroit for his supplier.

The prosecution claims, but did not prove, that he must have been a major supplier himself, given the street value of the cocaine-more than $60,000-and his possession of some marijuana cigarettes, drug paraphernalia, $3,500 in cash, a beeper, and a coded address book.

Under Michigan law, such distinctions are irrelevant. Once the cocaine weighed in at more than 650 grams (23 ounces), the life sentence followed automatically. The judge had no discretion to consider whether Harmelin was a dangerous character, a good candidate for rehabilitation, or anything else about him-even whether he had ever sold drugs to anyone.

The Supreme Court will hear arguments Nov. 5 on Whether Harmelin’s sentence violated the Eighth Amendment ban on cruel and unusual punishment.

The sentence surely was both cruel and unusual as those words are commonly understood. But that’s not necessarily to say the justices will strike it down.

Posted on

Busing Forever? Resegregation Now?

by Stuart Taylor, Jr.

Hearing its most important school-desegregation case in more than a decade, the Supreme Court was presented last week with two unappealing prospects: court-ordered busing in perpetuity or (de facto) resegregation.

The Court can and should avoid both alternatives.

The immediate issue in Board of Education of Oklahoma City v. Dowell is whether the school board acted lawfully in 1985 when it ended, for students from the first grade through the fourth grade, the cross-town busing that a federal judge had ordered in 1972 as a remedy for decades of official school segregation.

The larger issue is whether the court ordered desegregation measures that bind hundreds of cities all over the country can ever be discontinued if the result would be neighborhood schools that reflect racial imbalances.

While the oral arguments at the Court on Oct. 2 focused on legalisms like the definition of a "unitary" school system and such mysteries of causation as whether today’s segregated housing patterns are a vestige of official segregation, the larger questions at stake remained in the background.

Does the educational and social value of integration to blacks and whites alike outweigh the strain on small children who are bused to schools in alien surroundings far from their homes? Does it outweigh the problems caused by white flight, which has left many big cities with racially isolated majorities of black and Hispanic students, while sapping public support for the schools?

How much of the white flight was in fact caused by forced busing? Are whites who flee busing racist or irrational, or do some have reason to worry that their children’s education will suffer?

Posted on

Who Leads on Foreign Policy?

by Stuart Taylor, Jr.

The battle over allocation of foreign-policy powers between the president and Congress, joined so publicly during the Reagan administration, has moved underground amid signs that neither branch learned much from the traumas of the late 1980s.

The Bush administration, bolstered by bold misreadings of the Constitution and its history, has issued sweeping claims of executive power that virtually exclude Congress from the conduct of foreign affairs.

Two administration lawyers recently asserted in a letter to The New York Review of Books that the Framers had intended a system "whereby the president executes the law and conducts foreign affairs, subject only to specific congressional checks"-and armed with ”a residual power that encompasses all authority not expressly delegated to the other branches of government.”

And in a pretrial brief in the Oliver North case, Dick Thornburgh’s Justice Department contended in 1988 that "the president has plenary power which Congress cannot invade" to circumvent congressional spending bans by soliciting money from foreign leaders for covert military operations. When Congress voted last year to bar such solicitations, the administration said it was unconstitutional and the president vetoed the bill.

Meanwhile, after episodic resistance to the Reagan policies in Central America, Congress has resumed its decades-old habit of acquiescence in unilateral presidential actions, including those that skirt its own laws.

When the president invades Panama, hardly bothering to notify (let alone consult) anyone in Congress, the public approves, so Congress applauds. So much for the War Powers Resolution of 1973, which was supposed to prevent unilateral presidential use of military force.

Posted on

Mangled Sentence: Read It and Weep

by Stuart Taylor, Jr.

Robert Freeman did some insider trading. John Poindexter deceived Congress. Fred Hagler helped another guy sell 2.3 ounces of crack.

They have two things in common: None deserves to go to prison. Yet all probably should-for a few months-to deter others from doing what they did.

But that’s not quite the way it’s going to turn out. And the differing prospects of these three men shed an unflattering light on our system of justice and our society’s moral sense of proportion.

Freeman, former head of arbitrage at Goldman, Sachs & Co., was sentenced April 17 to four months (plus a $1 million fine) for seeking inside information about a pending takeover and using it to unload $500,000 in options.

Poindexter, convicted April 7 on five felony counts of false statements to Congress and obstruction of its investigations into the Iran-Contra affair, faces a theoretical maximum of 25 years.

But he will probably get two years or less-and maybe no prison time at all, like his co-conspirators Robert McFarlane and Oliver North.

Fred Hagler acted as middleman between a small-time drug dealer and buyers (who turned out to be undercover operatives), and attended the sale. He was sentenced in April to 20 years, without parole.

A 37-year-old father of three, he will be locked up until at least 2007, and that’s if he earns all possible good-time credits. But for an unusual break he received from the prosecution, Hagler would have faced a congressionally mandated minimum prison term of life without parole.

Courtroom of the Absurd

This for a doer of odd jobs who eked out a meager existence with his common-law wife and children in a Los Angeles ghetto, a man who was wiretapped asking a customer for a $60 loan so he could go "down to Toys-R-Us" to buy his little boy a birthday present.

Posted on

Poor Taste Makes Bad Law

by Stuart Taylor, Jr.

When an art Institute in Philadelphia displayed Robert Mapplethorpe’s homoerotic photographs, it was subsidized by the National Endowment for the Arts.

When an art museum in Cincinnati displayed the photos, it was raided by police and hit with an obscenity indictment by a local grand jury. Its director could face a year in jail.

This is the reductio ad absurdum of the brouhaha that erupted last year, fanned by the Republican right in Congress, over the arts endowment’s grant of $30,000 to the Institute of Contemporary Art in Philadelphia for a retrospective of Mapplethorpe’s work.

The indictment provides fresh evidence of the foolishness of all obscenity laws (except narrowly drawn laws against child pornography) that criminalize the sale or display of sexually explicit materials to consenting adults.

But silly as it is legally, the Cincinnati case lends weight to the view that some of the Mapplethorpe photographs are so deeply offensive to so many citizens that tax dollars should not be used to subsidize their exhibition.

The finding by a randomly chosen grand jury that seven of the 125 photographs were obscene suggests that, however admired by art connoisseurs, these works are anathema to average folks whose taxes paid for the Philadelphia exhibit.

The suggestion is not conclusive. These grand jurors, like the congressmen caterwauling about dirty art, may be more easily offended than the public at large-which, one hopes, can tolerate a trickle of federal money to finance some art that may be challenging or even shocking.

The dispensers of federal art money should reflect, nonetheless, on how Mapplethorpe’s shots of a forearm shoved into an anus and a man urinating into another’s mouth played in Cincinnati the next time someone comes looking for a federal grant to display similar works.

Neither Censor Nor Fund