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.”

Fire in a crowded theater: Is it really a free country?

Joe, a veteran and avowed atheist (turns out there ARE some atheists in foxholes), goes for his yearly physical at the local Veterans Administration-run medical clinic. He’s escorted to one of the exam rooms, where medical technician and devout Catholic Tammy takes his blood pressure and medical history prior to the doctor’s arrival.

While Joe is not surprised to see that Tammy wears a crucifix necklace, he IS surprised to note that Tammy keeps an open Bible on the counter in the room.

Joe casually mentions to Tammy that he played golf yesterday with another doctor in town. Tammy says, “He’s a nice man, but I can’t condone his lifestyle. He prescribes birth control, which is clearly a sin.”

After Joe leaves the clinic, he grows more annoyed at Tammy’s unsolicited dig at his friend. He didn’t ask for her opinion and thinks it’s inappropriate that she foisted her Catholic-inspired opinion on him in a professional setting. Further, while he’s not crazy about the crucifix, he feels that the open Bible crosses a line.

That evening, he tells his wife that he plans to complain to the V.A. His wife responds: “It’s a free country! Tammy’s got freedom of speech and freedom of religion. The First Amendment says so!”

Is Joe’s wife right? Does the First Amendment guarantee Tammy’s right to say and do what she wants at work?

First things first: We try to find the answer in the plain language of the statute:

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

Well, when you put it that way…

Note the first words: “Congress shall make no law….” So… the First Amendment applies only to acts of Congress. This means that, if we’re not talking about a government action, the First Amendment is not triggered at all.

It’s important to understand that “Congress” has been interpreted to include not only laws passed by the federal government, but to the actions of state and local governments as well. (The 14^th Amendment applies the federal Constitution to the states.) Also, subsequent Supreme Court cases have held that—in some very narrow instances--some non-government entities are considered to be “the government” for Constitutional purposes. In other words, a private company or citizen CAN violate a person’s First Amendment rights only if the private company or citizen is:

1) Serving a public function typically performed only by the government (a company town won’t allow residents to peaceably assemble) OR

2) Working with the government where the state is so heavily involved in the private activities that the state and the private actor essentially become one (state public housing project contracts with a property management company that refuses to rent to Hispanics)

Fun side note: Because I work for the government, I’m a state actor during the day and a private actor at night. Sometimes for fun, I jump in and out the door of my office and yell: “State actor inside! Private actor outside!” (Not really.)

So where does this leave Joe and Tammy?

Can Tammy’s employer forbid her to wear a crucifix to work? Can her employer forbid her to keep an open Bible on the counter? Can Tammy’s employer forbid her to offer her opinion of Joe’s friend’s lifestyle? Is Tammy, as an agent of the federal government, violating the First Amendment’s Establishment Clause? In other words, do her open Bible and religious comments mean that her government employer is promoting Catholicism?

Tammy is an employee of the federal government. She works for the V.A., so there’s no need to wonder if we have a government actor here. Still, even if we agree that the V.A. is a government actor here, it doesn’t seem possible that an employer (even a government employer) can’t tell its employees what to do.

Tammy’s freedom of speech

A government employer can restrict an employee’s speech unless the employee is commenting on a public concern UNLESS the speech would disrupt the employer’s business so much that it would outweigh the employee’s right to freedom of speech. (See Pickering v. Board of Education, 391 U.S. 563 (1968) Stated another way, we’re balancing the harm of the statement with the public’s need to hear the statement. Tammy’s statement that Joe’s doctor friend is sinning when he prescribes birth control seems to be of little public interest, and the public’s need to hear this statement is not outweighed by the harm (alienating a patient, for one thing). Tammy’s employer can restrict her speech.

Tammy’s freedom of religion

A government employee has the right to express his or her faith so long as it does not interfere with her work setting. (Draper v.Logan Cnty. Pub. Library, 403 F. Supp.2d 608) Tammy can wear her crucifix, but the open Bible might be seen as too disruptive to her work. Certainly, her comments regarding Joe’s doctor friend would be seen as disruptive. Also, it’s unlikely that Tammy’s comments regarding sin and birth control would be construed as a protected exercise of her religion. (Her religious rituals do not include offering Bible interpretations at work.)

Tammy’s establishment of a religion

A government employer can prohibit religious expression when a reasonable person would view the expression as the government’s endorsement of religion (Logan, again). Certainly, no reasonable person would interpret Tammy’s personal jewelry as the V.A.’s encouragement of Catholicism. On the other hand, I think a reasonable person could see the open Bible in the exam room or an employee’s statements as V.A.-sponsored religious expression—particularly the open Bible.

            I think Joe has some pretty strong grounds for complaints here. What do you think?

Shaky Grounds: The outrageous case of the McDonald's coffee lady

How do you know what you know?

--Elizabeth Lewis, and countless other Criminal Justice professors

Oftentimes, when someone is arguing that Americans are weak, whiny losers who seek to blame someone else for their own shortcomings, they use the McDonald’s hot coffee lawsuit to support the argument.

This case is more than 20 years old now, but we still hear about it nearly every day. Twice this week, I heard someone use it as an example of: 1) How Americans are unwilling to take responsibility for their own well-being AND 2) How this often translates into frivolous lawsuits with outrageous payouts, which harms honest, hardworking Americans and the corporations who love them.

Whether we agree with the above conclusions or not, this case fascinates me because, well, pretty much everything we “know” about the lawsuit is wrong, and yet that doesn’t stop us from trotting it out as a perfect example of why we need tort reform, why class warfare is harming America, etc.

When you examine the facts of this case, it’ll make you wonder: What else am I wrong about? Am I basing other beliefs on bad timber? How do I know what I know?

On February 27, 1992, a 79-year-old Albuquerque grandmother, Stella Liebeck, ordered coffee at a McDonald’s drive-through. After they got their food, her grandson, who was driving, parked the car so that Mrs. Liebeck could safely remove the lid to add cream and sugar. When she removed the lid, Mrs. Liebeck spilled the coffee on her lap, and she was burned.

Now, so far, this sounds like an unfortunate mishap. After all, most of us have spilled drive-through food on ourselves, but we don’t go and file a lawsuit over it, do we? More to the point, is it really McDonald’s fault? Everyone knows that coffee is hot. Isn’t it ridiculous to hold the restaurant owners responsible for our clumsiness when they’re simply giving us what we asked for—a hot beverage to go? I don’t care if you are somebody’s grandma: You don’t deserve millions of dollars because you spilled your coffee on your lap, right?

But wait, there’s more:

During the previous 10 years, more than 700 customers showed McDonald’s that they had been burned—sometimes severely—by McDonald’s coffee. Nevertheless, McDonald’s continued to require franchisees to serve the coffee at temperatures of at least 180 degrees, which causes 3^rd degree burns like those Mrs. Liebeck suffered.

In fact, Mrs. Liebeck suffered 3^rd degree burns on her thighs, buttocks, and private parts. She required painful skin grafts, hospitalization, and follow-up treatment for more than two years. Still, she didn’t sue at first. She simply asked McDonald’s—not for millions of dollars—but for $20,000. She offered proof that this was the actual amount of her medical bills and lost wages, and she asked for no more than this. McDonald’s refused to pay, and offered $800 instead.

At this point, she sued. A McDonald’s quality control executive took the stand and conceded that, while McDonald’s was aware of the 700+ prior scaldings, the company decided not change their practices and had more pressing dangers about which to worry. The jury awarded Mrs. Liebeck $200,000 in compensatory damages (medical bills, lost wages, decreased function), which was later reduced to $160,000. They also awarded her $2.5 million in punitive damages (“punitive” is “to punish”—in other words, to make McDonald’s hurt enough so that they would change their practices). The jury arrived at this figure by calculating two days’ of McDonald’s coffee sales. This award was later reduced to less than $480,000. After more legal wrangling, the parties settled out of court for a lesser amount, bringing the total paid to Mrs. Liebeck to less than $600,000.

Is less-than-$600,000 a fair price for scalded genitals, hospitalization, disability, medical and legal bills, and the stress of months or years of court appearances, depositions, etc.? Maybe or maybe not, but I think this at least shows that Mrs. Liebeck is not an irresponsible, clumsy chiseler who conned an innocent corporation into giving her a lotto-style payout.

How do you know what you know?