What the hell is standing? I thought this was a gay marriage case!

The Supreme Court heard the first day of oral arguments in the case of Hollingsworth v. Perry today. It’s a landmark case, of course, and most Americans have strong opinions on the underlying issues. I read the entire transcript of today’s oral arguments, and I was disappointed that most of what was said was hopelessly confusing. That’s a shame, because these decisions affect all of us. We should at least be able to understand what happened and why it matters.

I'd like to identify the parties, trace the history of the case, and explain the key issues.

A case is born

The California Family Code defined marriage as “a personal relation arising out of a civil contract between a man and a woman.” Cal. Fam. Code § 300(a). The City of San Francisco had begun to issue marriage licenses to same-sex couples anyway (including Rosie O’Donnell and her partner). California ordered the City to enforce the law as written, and some same-sex couples were denied marriage licenses as a result.

The couples sued, and the California Supreme Court held that the state law as written—and the ban against same-sex marriage—violated the couples’ Constitutional rights. In re Marriage Cases, 76 Cal.Rptr.3d 683, 183 P.3d 384 (2008).

Enter Proposition 8

Traditionally, of course, state laws are conceived and born in the statehouse. Your state legislature proposes a bill and votes on it. If the bill passes, it becomes state law. (Are you singing that song from “Schoolhouse Rock” yet?)

Citizens are sometimes frustrated their hoped-for laws take forever to become law—if they ever make it that far—and that the law as passed bears little resemblance to the original proposal. In some states—and in many countries—voters can petition to have a proposed law placed directly onto the ballot. If enough voters say “yes” to the initiative, it becomes law.

Proposition 8, which limited marriage to one man, one woman, was on the ballot in California in November 2008. Voters passed it by a margin of 52-48 percent, in effect overturning In re Marriage Cases and making same-sex marriage illegal in California again.

Who are Hollingsworth and Perry?

Kristin Perry and her partner Sandra Stier applied for a marriage license in California. Pursuant to state law, including Proposition 8, the Alameda County Clerk-Registrar denied them. They and another same-sex couple sued their respective county clerks, along with then-Governor Arnold Schwarzenegger, Attorney General Jerry Brown, and other state officials.

The “Hollingsworth” part is a little unusual. Normally, the case would be “Perry v. Brown” (the attorney general) or “Perry v. Schwarzenegger.” Oddly, both Gov. Schwarzenegger and Atty. Gen. Brown declined to stand as defendants in the case. Instead, Dennis Hollingsworth of the group ProtectMarriage.com asked the court to let him represent the state’s interest in protecting traditional marriage. The court allowed Hollingsworth to intervene, and so the case went to federal court, where Hollingsworth lost. The 9th Circuit Court of Appeals affirmed—holding that Proposition 8 was unconstitutional—and so Hollingsworth appealed to the U.S. Supreme Court, where Perry v. Hollingsworth is before us today.

What is standing?

Article III, §2 of the U.S. Constitution sets forth the requirements necessary for a case to be heard by a federal court. Among these requirements is standing.

Before the U.S. Supreme Court can hear a case at all, the parties must show that they have a personal interest in the outcome in the case—that they’ve got a dog in the fight, some skin in the game. Often, standing is not at issue. If a convicted murderer is suing the State of Alabama for failing to give him a fair trial, for example, the interests are obvious. The accused wants a new trial so that he can try to win his personal freedom, while the State wants their trial result to be upheld so they can exact justice on behalf of their citizens.

In Perry v. Hollingsworth, however, whether Hollingsworth has standing is disputed. Kristin Perry was herself denied a marriage license, so it’s easy to see how she has standing: She was personally affected by the marriage license denial, and so she has a stake in the outcome of this case.

Does Hollingsworth have the same personal interest here? In other words, does he personally have the right to defend California’s Proposition 8—even when the state itself declined to do so? He argues that he does—his group was instrumental in passing Proposition 8 in the first place, and so he is occupying his rightful place in speaking for the state. Perry is arguing that this is not enough: He has not suffered a personal, immediate injury from the state’s action, and therefore does not have standing—the right to a redress of his grievances. See Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).

If the parties don’t have standing, the Court will decide that the case is not properly before it. The case won’t make it past this procedural hurdle, and the Court will not decide on the merits of the case. Standing, here, is half the battle.

So what are the merits of the case?

Based on the signs of the protestors outside the Supreme Court building and the comments on Facebook, you’d think that the Court is answering the question of whether all Americans can marry a member of the same sex. They’re not, although that will be the effect of their decision.

Again, based on Article III, a federal court cannot answer “political questions”—it must answer the specific federal question before it. In addition to the standing question discussed above, the Court will decide:

“Whether the Equal Protection Clause of the Fourteenth Amendment prohibits the state of California from defining marriage as the union of a man and a woman.”

In a way, this is a narrow question: Can the voters of a state decide that it’s illegal for same-sex couples to marry, or does this violate the Constitutional rights of same-sex couples?

Here’s the text of the 14th Amendment. Does it extend to same-sex marriage? What do you think?

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

U.S. Const. Amend. XIV, § 1

You got Zuckerberged! Did Facebook violate your freedom of speech rights?

My Facebook friend “Nancy” noticed that a status update she posted last month has since disappeared. Nancy is a reasonable person, but she is also a passionate and sometimes outspoken advocate for children. Her post criticized the Catholic church’s protection of child-molester priests. While she can’t be sure, she speculates that someone was offended by the post and reported it to Facebook’s community standards team, who removed it.

Nancy’s post, while certainly not flattering to Catholic church leadership, did not contain foul language or offensive slurs against Catholics, and yet Facebook removed it anyway.

Can they do this? What about freedom of speech?

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

U.S. Const. amend. I

You’ll note right away that it begins: “Congress shall make no law….” Well, Facebook isn’t “Congress,” so… end of story, right? Facebook is a private (albeit publicly traded) company. If Congress isn’t directly telling you to shut up, the First Amendment doesn’t apply, does it?

It sounds like a simple question, but it requires this long answer:

Not just Congress

When we complain that Congress has passed a law that is “unconstitutional,” what we’re specifically saying is that Congress has passed a law that, if enforced, would violate our constitutional rights—including our first amendment right to speak freely, even if that speech is offensive.

For example, Congress passed the Stolen Valor Act in 2005, making it a federal crime for any person to falsely claim that he or she had been awarded a military honor. 18 U.S.C. § 704 (repealed 2012), The Supreme Court struck down the Act in June 2012, holding that the Act violated first amendment free speech protections. U.S. v. Alvarez, 56 U.S. _____ (2012).

(Note to non-lawyers: I can't include the page number here because the volume isn't bound yet, not because I'm too lazy to find the case. Note to lawyers: I always include the date the case was decided as my cite date because I read the original source material, not because I'm unaware that the cite date should be the publication date. For me, the publication date and the decision date are the same. My cites are correct. No need to keep emailing me about this, unless of course you find an incorrect cite. Please email me about that.)

The Fourteenth Amendment applies the Bill of Rights (the first 10 constitutional amendments) to actions of state and local governments, too. This still has nothing to do with Facebook, which is of course not the federal government or a state or local government, unless....

Is Facebook “the government”?

Believe it or not, the actions of some private companies have been held to be unconstitutional government actions.

In 1943, Grace Marsh was arrested and convicted of trespassing for handing out religious leaflets in Chickasaw, Alabama, which was a company town owned entirely by the private Gulf Shipbuilding Corporation. Her case reached the Supreme Court, which held that Marsh’s first (and 14^th) amendment rights had been violated—even though the homes, streets, and sidewalks were owned entirely by the private corporation and not by the government. Marsh v. Alabama, 326 U.S. 501 (1946).

The Court reasoned that the State of Alabama had allowed a private company to own and operate an entire town and to perform all of the functions and activities of a local government. Gulf Shipbuilding, therefore, had the same duties as any other town to respect the constitutional rights of its citizens.

(Fun side note: Chickasaw, Alabama, is no longer a company town but is still going strong as a traditional government-incorporated town in Mobile County. As a history buff, I want to visit their historic shipbuilding district on Mobile Bay. We can all go see the spot where Marsh began! No? Fine, I’ll go by myself.)

The Court appeared to expand its Marsh ruling in the 1960s when it held that the Logan Valley Plaza shopping center violated the first amendment free speech rights when it banned union employees who were picketing a Weis supermarket in the shopping center. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968, rev’d 1976). The court reasoned that a shopping center is similar to the business district of a company town, so Marsh protections should apply. The court reversed itself in 1976, however, when it held that the management of a private shopping mall did not violate the first amendment rights of union protestors when it banned them from picketing inside the North Dekalb Mall. Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976).

The current state of the law seems to be that of Marsh: For a private company to be held to the same “Congress shall make no law” standard as the government, the private company must perform all of the functions and activities of the government OR it must be so “entangled” with state action that it is essentially the same as the government. See Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001).

(Alas, while we can easily visit Brentwood Academy or the North Dekalb Mall, we can’t road-trip it to Logan, Utah, to visit the Weis supermarket in Amalgamated. Apparently, it moved across the highway when the new shopping center was built in the 1970s.)

Your best judgment

Facebook is a private company that does not appear to perform the functions and activities of the government, and it’s not entangled with government function in any way, so it looks like Zuckerberg and company can delete your posts at will (particularly if they violate Facebook’s Terms of Service to which every user agrees upon joining Facebook).

Don't forget that we're discussing the very narrow question of whether Facebook can (constitutionally) delete its users’ posts. It can, but that’s not the worst thing that can happen to you. You can’t post malicious, false things about your ex-wife and claim freedom of speech when she sues you for libel, for example—nor can you post embarrassing, drunken pictures of yourself and then expect first amendment protections when your employer fires you from your kindergarten teacher job.

Veiled Threat: Should we worry about Sharia law?

Someone recently asked me to sign a petition asking Congress to pass H.R. 973, which would “prevent the misuse of foreign law in Federal courts, and for other purposes.”

I refused, because I felt certain that this was another ill-informed and unnecessary attempt to make sure we’re not all living under Sharia (Islamic) law in a year. I decided to research the matter fully, however, because ask me about Sharia law surprisingly frequently, and it’s important to me to have well-reasoned answers beyond: “That’s ridiculous. Not gonna happen.”

The bill was introduced on March 9, 2011, by Rep. Sandy Adams of Florida. It seems as if it has pretty much died in committee, but several groups are petitioning in an attempt to revive it.

What you do want?

The bill seeks to amend Title 28 of the U.S. Code, which governs the organization and procedure of the federal courts. The bill would add this extra chapter to Title 28, Part VI (“Particular Proceedings”):

In any court created by or under article III of the Constitution of the United States [federal courts, in other words], no justice, judge, or other judicial official shall decide any issue in a case before that court in whole or in part on the authority of foreign law, except to the extent the Constitution or an Act of Congress requires the consideration of that foreign law.

At first glance, this seems redundant. The federal courts already use U.S. law except where the Constitution or an Act of Congress dictates otherwise. Why wouldn’t they? It seems comical to imagine any judge in the United States telling the parties: “Let’s mix things up today and use the laws of Swaziland to decide your case!”

To be fair, though, this isn’t entirely ridiculous. There are some instances where a federal court may need to interpret or even apply the law of another nation. For example, one type of case that lies within the jurisdiction of the federal courts is a case in which the opposing parties are “citizens of a State, and citizens and subjects of a foreign state” 28 U.S.C. § 1332 (a)(1) (2006 & Supp. 2010). If a citizen of Libya, say, sued a U.S. citizen in federal court for breach of contract, and the contract was formed in Libya under Libyan law, the U.S. federal court may find itself deciding the case based on Libyan law and not U.S. law.

In contract law, the contract is supposed to reflect the will of the parties. If the parties agree in the contract that Libyan law would govern the terms (as parties often do), then this bill would force the court to use U.S. law—in clear violation of the contract. This absurd result gets even more troubling when you consider foreign marriages or foreign adoptions. If two U.S. citizens have a beach wedding in Mexico, would a U.S. federal court still be able to decide whether the marriage is valid under Mexican law?

                                  

Why do you want it?

I doubt the supporters of H.R. 973 and similar measures, such as Oklahoma’s Save our State law, are deeply concerned with these finer points of international conflict of laws analysis. If a giant U.S. oil company deals with a giant Saudi oil company, and the two companies sign a contract under the laws of Saudi Arabia because both parties prefer it that way, who cares? They’ve done it for years, and we haven’t really noticed.

Instead, the concern seems to center on the story of Dearborn, Michigan.

During the 2010 election, unsuccessful Nevada-based U.S. Senate candidate Sharron Angle said this in a campaign speech:

We're talking about a militant terrorist situation, which I believe it isn't a widespread thing, but it is enough that we need to address, and we have been addressing it…. Dearborn, Michigan, and Frankford, Texas, are on American soil, and under constitutional law. Not Sharia law. And I don't know how that happened in the United States…. It seems to me there is something fundamentally wrong with allowing a foreign system of law to even take hold in any municipality or government situation in our United States.

http://www.huffingtonpost.com/2010/10/08/sharron-angle-muslim-law-_n_755346.html, retrieved 3/20/13.

Dearborn Mayor Jack O’Reilly was quick to confirm that the city was still operating peacefully and unremarkably under U.S. and Michigan law. He said that he believed the rumor started when a Christian who was passing out Bible tracts at an Arab cultural festival in the city complained of harassment. Before you dismiss Angle as a lone wingnut, however, note that Newt Gingrich, Michele Bachmann, and Herman Cain issued similar warnings in their campaign speeches. These politicians are addressing a key concern of their voters. According to a 2011 survey, 30 percent of Americans believe that Muslims wish to impose Sharia law in the United States. See http://publicreligion.org/site/wp-content/uploads/2011/09/PRRI-Brookings-What-it-Means-to-be-American-Report.pdf, retrieved 3/20/13.

Unfortunately, a single bad decision by a New Jersey state court judge has served as evidence that Sharia law is applied widely and must be stopped. In S.D. v. M.J.R., the judge failed to grant a wife a restraining order against her husband, who had sexually assaulted her, because the husband did not have the necessary criminal intent. In other words, the husband did not commit abuse, because in his mind, he was exercising his right as a husband, and what he was doing was not abuse. The husband’s lawyer called an imam to testify that the husband’s religious beliefs allowed him to beat his wife and have sex with her when he wished. 2010 N.J. Super. Lexis 143. While this outcome was overturned by the appellate court—and was denounced by Muslim legal scholars—the damage was done. While the lower court’s verdict was shameful and incorrect, I don’t think it’s accurate to say that this was an application of Sharia law.

It is conceivable; however, that Sharia law itself can be applied in divorce cases for those married according to Islamic law in the United States. A New Jersey judge ordered a husband to pay his wife $10,000 as a dowry when they divorced, because their Islam-based marriage contract called for this traditional payment. The judge allowed the contract to stand after analyzing whether it was contrary to public policy. Odatalla v. Odatalla, 810 A. 2d 93 (2002)

How can I protect myself?

These rather isolated cases don’t concern me. It seems clear that if you do not want to be governed by Islamic law, the solution is simple: Do not become a Muslim. Do not visit a country that is ruled by Islamic law. Do not enter into a contract (marriage or otherwise) in which you agree that any disputes will be adjudicated based on Islamic law. Other than that, as a U.S. citizen living in the U.S., you won’t wake up to find yourself governed by Sharia. No public laws or Constitutional amendments are necessary.

Promises, Promises: Is this a contract—or just a lousy meal?

Recently I posted this question as a status update on my Facebook wall:

A friend of mine posed this hypothetical question today. What do you think (lawyers, law students, and non-lawyers alike)?

Three brothers (Adam, Bob, and Charlie) were talking. Bob said: "Hey, guys. Why don't we take mom out to dinner for her birthday next week? We'll split the tab evenly among the three brothers." Adam and Charlie agree. Mom picks Applebee's, and the tab comes to $100 even--including tip. Adam puts the entire bill on his credit card, and when they get to the parking lot, Charlie gives Adam him his share--$34 in cash. Bob said: "Hey, buddy, I don't have cash right now. I'll pay you later." Adam agrees. One month later, Adam asks Bob for the money. Bob is offended, and says he'll pay Adam when he can. After all, no time limit was specified.

Is there a contract here? If so, what are the terms and is Bob in breach? Did Adam really give Bob a no-interest loan that could be repaid in 100 years if Bob so chooses?

Several of my friends offered their opinions and made some really good points.

Here’s how I’d answer the question:

NOTE: For simplicity’s sake (and because it’s the only way I can answer a Contracts question), I’ll use the method of analysis for contracts problems taught to me by Professor Richard Hagedorn.

The “picket fence,” as we called it, seeks to answer such questions as: Is there a contract? If so, what are the terms? Is anyone in breach? If so, what is the remedy?

First things first

What we’re really asking here is this: Legally, does Bob owe Adam the money? If so, when?

We can all agree that Bob would be a real jerk if he doesn’t pay up, but that’s not enough to make it make a legally-binding contract out of a promise. People make and break promises all the time, but it’s absurd to imagine all of those people in court.

A contract, then, is “a promise or set of promises for the breach of which the law gives a remedy, or the performance of which the law recognizes as a duty.”

Worth the paper it’s written on?

Most people think a contract must be in writing, but this is not true. With some exceptions (such as the transfer of real property), an oral contract is perfectly valid.

Says who?

In general, we’re likely going to be governed by either the common law of contracts or the state’s version of the Uniform Commercial Code (UCC). The UCC governs things such as the sale of goods (“all things tangible, moveable at the time of identification at the time of a contract for sale”) and commercial paper (such as promissory notes).

While a meal was shared, I would argue that the primary purpose of the agreement had nothing to do with goods, so… the common law of contracts it is!

Idle promise or binding contract?

What makes a contract a contract is this: the bargained-for-exchange

In other words, you’ve got to have an offer, acceptance of the offer, AND consideration. Consideration is the thing that is bargained-for. Consideration must have legally-recognized value: It’s “a promise to do something one is not legally required to do or to forebear from doing something one is legally capable of doing.”

If I promise to go to the movies with you on Saturday and you accept, it’s still not a contract. We have my offer and your acceptance, but a trip to the movies with me has NO economic or legal value… so this is merely a promise and not a contract.

If you offer me $50 to paint your house this weekend, and I accept the offer and the $50, I had better show up and paint the house—or give your $50 back.

In our case, Adam paid Bob’s share of the meal—something he wasn’t legally required to do—based on Bob’s promise to pay him later. It sounds like we’ve got offer, accept, and consideration here—a bargained-for exchange and therefore a contract.

Even if we’ve got a contract, it’s possible that Bob hasn’t breached the contract—yet. We can’t know if Bob has breached the terms of the contract if we don’t know what the terms are.

What are the terms?

This is one place where a written contract comes in very handy.

If I sign a one-year lease that clearly states that I’ll owe $500 if I move out early, it’s hard for me to argue that I don’t know what the terms of the contract are—or what the penalty is if I breach it.

We know that Bob owes Adam $34, but we don’t know when. Not only did the parties fail to put this in writing, they never specified a time frame at all.

When the parties don’t spell out a key term in their agreement, the court is forced to do it for them. Because the court can’t look to a written contract to see when Adam can expect Bob to pay him, the court will likely rely on the “reasonable, prudent person” standard. In other words, what would a reasonable, prudent person in this society think Adam can expect from Bob? How long is reasonable here?

Charlie paid Adam back right away, and we’re only talking $34 dollars here. I think a reasonable, prudent person would expect Bob to have coughed up the $34 before now (a month later). The judge will likely rule that Bob has had plenty of time, and that he’s therefore in breach.

Remedy

Adam wants his $34 back, of course, but can he get anything else?

It’s important to remember that the goal of contract law is to put the aggrieved party in the position that he would have been in had the breach not occurred. This means that punitive damages are very rare in contract law—and there’s not a lot of room for “pain and suffering” in a business transaction. (Contrast this with the goal of tort law, of which the goal is to make the aggrieved party whole.)

Adam can reasonably ask Bob to pay his court costs such as the filing fee, for example—because Adam would not have had to take Bob to court if not for the breach. He can’t ask the court to tack on $10,000 to compensate him for the many sleepless nights he’s endured for having a deadbeat brother.

Note to bar exam takers: This is an extremely incomplete answer for exam purposes. For example, I didn’t address conditions, defenses, and excuses to performance—let alone the finer points of offer and acceptance. Plan to do much better than this!

It was all worth it! How to get a job after law school

A close friend of mine, who is finishing law school, asked me the other day if she could use me as a reference as she searches for her first paying attorney job. She is understandably anxious. It’s not easy for anyone to get a job nowadays, and times have been especially tough for law students—although it’s a little better now than when I graduated.

It’s especially worrisome when you’re nearing the end of law school with no firm job offers in hand. The stakes are higher for you as a law school graduate than they are for undergrads: You’ve just poured your heart and soul into three years of arduous study, and you’ve likely amassed six figures in debt.

While M.D.s take even longer to graduate and spend even more money, their job market is a lot kinder. Doctors are more in-demand, and their accrediting authority, the American Medical Association (AMA), limits the number of medical school students (and therefore job-hunting doctors), which keeps the demand healthy and salaries steady.

Meanwhile, the American Bar Association (ABA) continues to accredit new law schools and does nothing to decrease the demand. It also supported the outsourcing of attorney jobs overseas. The ABA is happy, however, to publish nightmare-inducing “you’ll never get a job” stories—without suggesting solutions—in the American Bar Journal.

I found all of this talk negative and NOT at all helpful when I graduated, so I thought I would offer some positive advice and tips that actually work. While this post is aimed at graduating law students, I think it applies broadly.

1. Stop listening to negative talk

            You will get a job. You will pay off your student loans. You will find a way to make it work. I promise. All of us did, and you will, too.

            Maybe there are some people in your life who seem to find joy in mentioning the bleak job market or your student loan debt. Maybe these people are in your circle of friends or even your family. That’s too bad. Stop listening. If someone is not offering you helpful advice, encouragement, or even constructive criticism, tune them out for now. If you can finish law school and pass the bar, you can certainly do this.

2. Some things matter. Some things don’t.

            In law school, you’re constantly told that if you don’t get perfect grades, work at the right externship, have well-placed contacts, or land a prestigious summer clerkship, all is lost! This is not true at all.

            I went to a small, regional (but awesome!) law school in the Pacific Northwest, where I had decent grades but was by no means first in my class. I worked at a local, one-person law firm for my externship, and I took care of my ailing mother during the summer months. (I volunteered at the local probate court at the same time.) I moved back to the South after law school, where I settled in Nashville—knowing no one and having no job prospects whatsoever. I did just fine!

            Maybe some employers care which clubs you joined in law school or how well-connected your parents are. I have never been asked about such things in a job interview. What does matter is your attitude, experience, and hard work. This is very good news, because these factors are completely within your control.

3. How to get experience

            No matter where (or whether) you worked in law school or whether you had a clerkship or externship, you can build your resume at any time. You will likely have to work for free for a while, but you can support yourself during off-hours by working temp jobs and odd jobs, as I did. Yes, it can be demoralizing to have a doctoral degree and wait tables just like when you were a teenager, but sometimes it’s the only way.

            Some great places to get great experience:

            a. Volunteer at Legal Aid or similar agencies

                        Even small towns have at least one agency that provides legal services to the poor—or wishes that it could if only it had a lawyer who was willing to help. Be that lawyer! If you live in a larger city, you may have to be persistent to get your foot in the door at Legal Aid. Even though they were desperate for help, I couldn’t get the head attorney at the local Legal Aid to call me back. She was too swamped! Instead, I showed up at the office and offered to help answer phones, file, whatever, and the Development Director (who is still a good friend and has been a supportive contact) said: “I’ve got some envelopes you can stuff!” So… I stuffed envelopes, made copies, organized the self-help pamphlets, made phone calls. Once I had my foot in the door, it wasn’t long before they started giving me cases.

            b. Create your own judicial clerkship

                        My sister was friends with a staffer at the local probate court in the small town where she lives, so she called him and asked if I could work there for free one summer. Due to the budget restrictions that hamstring every government office, they were happy to have an extra set of hands to do research, help customers, file, organize the docket, etc. It was fun and very educational.

                        I read an article about how hard it can be to get a judicial clerkship because they are prestigious and there are only so many federal judges. The author wondered why no one ever clerks for a state court. What a great plan! It’s the same idea as my probate court experience, and even small towns have to hold court. There are many, many state court judges. One of them will let you work there—especially because most of them are elected officials who want to foster goodwill in the community. State court would be a wonderful experience. You could be in real, live court all day while you research law on everything from property line disputes to traffic court to criminal cases—maybe even capital cases! Think of the many, many amazing contacts you’d make.

            c. Work for a local lawyer for free

                        If all else fails, you may be able to find a smaller law firm that has landed a big case. You could offer to help do research or draft motions for free. When I was graduating from undergrad in journalism, I went to the local newspaper and said I’d work for free. I worked so hard that they started paying me on the second day I was there. You never know.

The key, of course, is hard work. When you’re out in the legal community, working for free, impress everyone with your work ethic, quality work product, and good attitude. If you don’t have those things, figure out how to cultivate them. Make everyone you encounter wonder how they can help you get a job, because you deserve it so much.

            d. Make the rounds of the contract agencies

                        One of them may have just landed a huge document review project and need all the help they can get—even new folks who don’t have much experience. Try to get a personal interview, and let them give you feedback. Keep in touch with them.

4. Network, of course

            While I love people, I’m frankly not the schmoozing type, but I bit the bullet and did it. I joined the local and state bar association, and I went to just about every function they had to offer. I mean, I went to barbecues and cocktail hours—I even painted an elementary school.

            I also joined my local hiking group, and I would strike up conversations with every lawyer I met. I told everyone I was looking for a job. I was pretty shameless, as I recall. It worked, though, because one of those lawyers I chatted up remembered me when someone told him of a job opening, and the rest is history.

           

Dead Man Balking: Do death row inmates get too many appeals?

Yesterday (3/15/13), the Maryland legislature voted to end the death penalty in that state. Governor Martin O’Malley, who has pledged to sign the bill, summed up the many reasons why death penalty opponents like me are against the death penalty: “We also have a moral responsibility to stop doing the things that are wasteful, and that are expensive, and do not work, and do not save lives, and that I would argue run contrary to the deeper principles that unite us as Marylanders, as Americans, and as human beings."

Thursday (3/14/13), the 9th circuit court of appeals overturned the conviction of Debra Milke, who has been on Arizona’s death row for 22 years. The lead detective, whose testimony was a major part of the prosecution’s case, had fabricated evidence in a number of other cases that have since been overturned. This, of course, throws serious doubt on his testimony in Milke’s case. The State plans to appeal to the Supreme Court.

While Gov. O’Malley cites moral and philosophical reasons for banning the death penalty, Milke’s case strikes a chilling, more personal note. We have executed nearly 1,300 people since 1976 in this country. How many of those did we get wrong?

We soothe our collective conscience by telling ourselves that a death row inmate has years of appeals during which his or her case is closely examined by wise factfinders. On the other hand, we point to this tortuous, lengthy process as evidence that the death penalty is too expensive and doesn’t serve justice at all.

When I tried to describe the appeals process yesterday to a fellow attorney, I stumbled. I was caught short when I couldn’t remember all of the steps—let alone accurately describe them. I decided to outline the process here for my own satisfaction. Anyone else is welcome to listen.

Note: This description assumes a state and not a federal case. Also, some states vary slightly. This process is typical.

I. Trial and sentencing

We’re most familiar with this step. It’s the “sexiest” one, dramatically illustrated in thousands of movies, from “Twelve Angry Men” to “My Cousin Vinny.” The State must prove the Defendant’s guilt beyond a reasonable doubt. The Prosecutor may have decided to seek the death penalty if “aggravating factors” are present—perhaps a murder was particularly grisly, part of another felony such as armed robbery, or the Defendant shows no remorse. While many movies show the judge handing down the death sentence during the sentencing phase, the Supreme Court has ruled that only the jury may decide whether these aggravating factors are present, and therefore whether the Defendant can be sentenced to death. Ring v. Arizona, 536 U.S. 584 (2002).

II. Capital appeal

            A. Direct appeal

                        1. State court of appeals

In most states, this appeal is mandatory in death penalty cases. This is not a new trial. The Defendant is now the Appellant, while the State is the Respondent—and is represented by the state’s department of justice and not a local prosecutor. These appeals are based only on the trial court record. In other words, if the attorneys did not raise an issue or present evidence at the trial, it won’t be considered here. No new witnesses are heard. Instead, the attorney for each side writes a brief and presents it during oral arguments. The panel of judges rules based on the briefs and oral arguments alone.

While the panel of judges can review the trial transcript and evidence, they are not deciding guilt or innocence but are reviewing the case to see whether the lower court made “reversible error,” an error which would have made the trial turn out differently. If so, they will reverse the lower court’s decision and remand the case to the lower court for further proceedings to “fix” the error. This may result in a new trial. Also, the court of appeals can reverse the death sentence itself. If the appeals court finds no reversible error, the trial court’s decision is affirmed.

                        2. State supreme court

The losing side may then appeal the decision of the appeals court to the state supreme court. This is similar to the court of appeals process.

3. U.S. Supreme Court

The losing side can then appeal to the U.S. Supreme Court, asking it to review the federal constitutional issues of the case, such as whether the Sixth Amendment right to a fair trial was violated. While the state supreme court is required to hear death penalty appeals, the U.S. Supreme Court is not. 43 Stat. 936 (1925).

            B. State post-conviction appeal

                        1. Trial court

                        2. Court of appeals

                        3. State supreme court

                        4. U.S. Supreme Court

It’s not necessary to detail all of these steps, except to say that the Appellant can file a petition with each of these four courts, raising issues that were and perhaps were not part of the original trial. Common issues at this stage include ineffective assistance of counsel or Brady violations, where the Appellant accuses the State of withholding evidence crucial to the Appellant’s case. At this stage, as in the Direct Appeal, the U.S. Supreme Court can refuse to grant certiorari (can refuse to hear the case). After this phase, the Appellant has exhausted state remedies and can attempt the federal courts.

             C. Federal habeas corpus review

Latin for “you have the body,” this is the stage during which the Appellant tries to show that his body is imprisoned without legally sufficient reason. Practically speaking, when you hear politicians complain about death row inmates cheating death for years with numerous redundant appeals, they’re usually talking about habeas corpus.

Habeas corpus review ain’t what it used to be. In 1996, Congress passed the Antiterrorism and Death Penalty Affectiveness Act (AEDPA). 110 Stat. 1214 (1996) Among other things, the AEDPA limits the inmate to one petition only and imposes strict time limits on the filing of the petition. Also, under AEDPA, federal judges may grant the petition only if they find that the state courts clearly and unreasonably applied federal law or made an unreasonable judgment based on the evidence. Critics of AEDPA have argued that these limits make the habeas process an ineffective rubber stamp of the lower court’s decisions.

Keeping in mind the above limitations imposed by AEDPA, the habeas process works as follows:

                        1. U.S. District Court

                                    The State and the Defendant file briefs in which they argue federal issues only. The judge can deny the petition or overturn it and can also overturn the death sentence. The judge can hear new evidence, too.

                        2. U.S. Court of Appeals

                                    If and only if the District Court judge or the Appeals Court judge allows the petition to move forward, the Court of Appeals reviews the case, limited to issues brought before the District Court. The conviction or the death sentence can be upheld or overturned here, but if it is overturned, the state court can retry the case.

                        3. U.S. Supreme Court

                                    This is the Defendant’s last resort. The Court hears only a few of these cases a year, and only for compelling reasons. A recent notable example happened 1/10/12, when the Court overturned the conviction of Juan Smith, who was convicted of killing five people in New Orleans in 1995. The court ordered a new trial for Smith, largely based on the prosecutorial misconduct of New Orleans District Attorney Harry Connick, Sr., whose office withheld key evidence from Smith’s attorneys that could have resulted in a “Not Guilty” verdict for Smith.

III. Clemency

            Once the accused has exhausted his final appeal rights, the Prosecutor applies for a death warrant. Once this is granted, the only hope is clemency.

The governor of the state in which the Defendant was convicted can review the case and can commute the death sentence to a lesser sentence. This is not as rare as you’d think, but mostly because governors have commuted all current death sentences immediately before the governor signed a bill repealing the death penalty in that state, as Gov. Pat Quinn did in Illinois in 2011. It is fairly rare for a governor to grant clemency to an individual inmate, but it happens. In 1977, Gov. George Busbee of Georgia granted clemency to Charles Harris Hill, who got the death penalty for his participation in a robbery during which the victim was stabbed to death by his co-defendant, Gary Watts. Gov. Busbee granted clemency to Hill, finding that it was unfair for Hill to get the death penalty when Watts did not.

            In the movies, this step adds extra drama to the plot. As the hours tick away in the march toward the death chamber, the condemned is said to be waiting for a phone call from the governor.

I’ve learned a lot here. While I had a general idea of the process, I find myself surprised by the number and complexity of the individual steps. It’s important to note, however, that Defendants do not typically get the benefit of most of these levels of review. When they do, they usually lose. Even if they win, the result is generally not freedom, but is more likely to be life in prison or maybe a new trial or a review of the evidence.

If anything, I’m even less comfortable with the death penalty than I was before. I’m left wondering how many mistakes we’ve made. Worse—with more than 3,200 people on death row today, how many mistakes are we going to make?

Crazy like a fox: Can insanity set you free?

James Holmes, who allegedly shot and killed 12 people and wounded 58 in an Aurora, Colorado, movie theater last summer, is in the news again. According to the New York Times, Judge William B. Sylvester had expected the defense to enter a plea of not guilty by reason of insanity and discussed the steps that such a defense would require, such as psychiatric examinations. (When the defense was unready to enter a plea, the judge entered a not guilty plea.) While it’s unclear exactly what the defense is planning, it’s certain that Holmes’ sanity will be a major part of the trial.

When a criminal defendant’s sanity is in question, we are often puzzled or even outraged. Certainly, no mentally sound person would shoot dozens of innocent people—to say nothing of the Jeffrey Dahmers of the world. Plus, it is understandably upsetting to imagine such people walking the streets because we as a society are unable to hold them responsible for their actions.

It’s important to define what we mean by “insane” and how that affects criminal proceedings. This complex issue is easily confused because the defendant’s mental state is important at several points in the proceedings.

Who are you calling “crazy”?

Most of us would agree that it’s “crazy” to commit mass murder, but the legal definition of insanity sets the bar higher than that. While the meaning of “insanity” varies from state to state, the trend is toward much less leniency since John Hinckley successfully used the insanity defense when he shot President Reagan. In Colorado, for example, an insane person is “a person who is so diseased or defective in mind at the time of the commission of the act as to be incapable of distinguishing right from wrong with respect to that act is not accountable.” (Colorado Bar Association)

Competent to stand trial?

Before we decide whether the defendant is guilty, we’ve got to get him into the courtroom.

A criminal defendant has the constitutional right to be present for his trial and to participate meaningfully in his defense—and this includes being able to understand the charges and the proceedings. See Dusky v. U.S., 362 U.S. 402 (1960).

Because Aurora shooter James Holmes has reportedly attempted suicide more than once while in jail awaiting trial and may have been a psychiatric patient in the years before the shooting, it is questionable whether he is currently competent. If he isn’t competent now, it doesn’t mean that he won’t have a trial or that he will go free. It means that—if he is found not competent to stand trial—the trial will wait until he is made competent. In extreme cases, antipsychotic medications can be forcibly administered. See Sell v. U.S., 539 U.S. 166 (2003).

Excused or justified?

Once we’ve cleared the competency hurdle, we get into what most people mean when they talk about criminal insanity. Insanity can either be a “negating defense” or an “affirmative defense.” A negating defense is: “There is no crime, because while I may have committed the act, it was not a crime because I was not mentally able to form the necessary intent.” An affirmative defense is: “There is a crime, and I committed it, but I can’t be held responsible because I could not understand what I was doing.”

To better understand these defenses, it’s helpful to define “crime.”

Mea culpa: What is a crime?

Very generally speaking, for an action to be a crime, two elements must be present: Mens rea and actus rea. The actor must have the necessary intent/mental state (mens rea) to commit the criminal act (actus rea). If the actor had the mental state but didn’t act, it’s not a crime. Likewise, if the actor didn’t have the necessary intent but still completed the action, it’s not a crime—or at least it’s not THAT crime.

Example: Say a jurisdiction has a statute that says that the crime of breaking and entering an auto is “intentionally or knowingly entering the automobile of another with the intent to commit a felony therein….” If your car is identical to mine and you’re parked next to me in the Kroger parking lot, I may absentmindedly get into your car before I realize my mistake (probably due to the lack of an eager rat terrier sorting through my grocery bag). I shake my head, laugh, get out of the car, and apologize to you as you approach. While I committed the act (I got into the car), I didn’t commit the crime, because I didn’t “intentionally or knowingly” get into the wrong car—and I certainly didn’t do it with “the intent to commit a felony therein.”

A hard sell

James Holmes is charged with—among other things—two counts of first degree murder for each person he killed. He is charged with, for example: “Intentional murder where the person after deliberation and with intent to cause the death of a person, does cause the death of that person or of another person.” Colo. Rev. Stat. § 18-3-102(1)(a).

The mens rea here is “after deliberation and with intent to cause the death of a person.” If Holmes were attempting a negating defense, he could argue, for example, that he was so delusional that he thought the theater-goers were video game characters and not people; therefore, he didn’t have the necessary mens rea, the “intent to cause the death of a person.” This is a reach, of course, and Holmes would be unlikely to prevail.

If Holmes were attempting an affirmative defense, he could argue that while he intended to shoot to kill, he can’t be held responsible because he was too mentally ill to understand that this was wrong. Again, no judge or jury is likely to accept this.

The insanity defense is hard to sell, particularly because the crimes in question are often heinous and the defendant is rarely a sympathetic character. Also, even if the defendant successfully mounts this defense, he’s still not set free.

Not so fast

A defendant who manages to convince the court that he is not guilty by reason of insanity is not set free to harm again. Rather, he is typically confined to a secured psychiatric hospital—at least until he can show that he is no longer sick. Then, he may be released into a halfway house or into the community with a long list of conditions. Surprisingly, this “sentence” often lasts longer than the prison sentence would have. While the conditions in the mental hospital may or may not be more pleasant than those in a maximum security prison, there’s little motivation to cry “insanity.”