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Stuart Taylor, Jr.

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A Step Toward a Jury of One’s Fears

by Stuart Taylor, Jr.

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

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

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

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

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

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

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

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The Shame of the Southern Democrat

by Stuart Taylor, Jr.

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

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

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

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

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

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

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The Bank Dick

by Stuart Taylor, Jr

The New Republic

Over fifteen years ago a young legislative aide at the CIA got the agency director to recommend him for a clerkship with a distinguished federal judge. He got the job. About eight years ago the judge had enough of judging and went to the former CIA director for help landing an ambassadorship in Latin America. He got Uruguay.

The CIA director is now president of the United States. The legislative aide, William Barr, is now George Bush’s attorney general. And the former judge, Malcolm Wilkey, his ambassadorship behind him, is now working for his former law clerk, as "special counsel" conducting the politically sensitive investigation into the House Bank.

When Barr announced Wilkey’s appointment on March 20, the media took at face value Barr’s suggestion that his purpose was to ensure impartiality and independence from political pressure. They should have been more skeptical. And when the House bowed to Wilkey’s reckless rhetoric and his sweeping subpoena for the bank’s records, including 505 current and former members’ checks, the media figured the subpoena must be OK. It wasn’t.

To the contrary, it was an act of gross prosecutorial overreaching, an affront to the constitutional status of the House and the privacy of hundreds of individuals – no less so for the fact that the courts upheld it in light of the House’s craven capitulation. Wilkey’s subpoena was only the latest episode in the Justice Department’s aggressive pursuit of the case, which looks not only like a waste of law enforcement resources, but like opportunistic exploitation of the affair for political gain as well.

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The Rule of Nonsense at Harvard Law

by Stuart Taylor, Jr.

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

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

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

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

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

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

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

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Enough of the Grand-Jury Sham

by Stuart Taylor, Jr.

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

Hogwash.

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

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

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

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

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Special Journalist Indicts Special Counsel

by Stuart Taylor, Jr.

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

Dear Judge Wilkey:

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

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

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

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

(3) betrayal of your own first principles;

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

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

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

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

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Fight For The Future – Part 2

by Stuart Taylor, Jr

The American Lawyer

Capitol Hill is swarming with lobbyists in a war over the future of information services-pitting the Baby Bells and their allies against the nation’s newspapers, AT&T, and their broad coalition.

IT WAS A NICE FIT

Thomas Hale Boggs, Jr., premier Washington lobbyist, was co-hosting a duck-hunting party at his farm on Maryland’s Eastern Shore for House Democratic leaders and moneymen. Some of his old buddies would be there, among them Congressmen John Dingell and Jack Brooks, the two committee chairmen whose help would be most critical to Boggs’s new client, the American Newspaper Publishers Association.

So Boggs brought along a new friend: James Cox Kennedy, chairman and CEO of his family’s Cox Enterprises, Inc., the $2 billion-a-year media empire based in Atlanta.

The 44-year-old newspaper-cable-broadcasting baron and the 51-year-old, $1.5 million-a-year senior partner atPatton, Boggs & Blow had met a few weeks before at an ANPA board meeting in New York. Kennedy is a key player in the ANPA’s desperate push for legislation this year to shield newspapers from competition by the seven "Baby Bell" telephone monopolies in the burgeoning field of electronic publishing-the provision of information ser¨vices through telephone technology.

Kennedy was also to the duck blind born, so to speak: A scion of one of America’s ten richest families, he has a hunting lodge of his own and is a crack shot-"one of the best I’ve ever seen," Boggs says.

FOR THOSE WHO TUNED IN LATE

This is the second article in a two-part series on a multimillion-dollar litigation-lobbying extravaganza in which opponents of the seven Baby Bell telephone monopolies are bidding to kick the Bells out of electronic publishing and keep them out of the long distance and telephone manufacturing markets-or at least restrict their access.

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From the Files of a ‘Special Journalist’

by Stuart Taylor, Jr.

Judge Malcolm Wilkey, Retired

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

Dear Judge Wilkey:

 

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

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

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

I. Factual Predicate

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

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

Among the allegations are the following:

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

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

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On Appeal, KO the Tyson Verdict

by

Stuart Taylor, Jr.

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

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

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

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

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

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

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

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

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

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Fight For The Future – Part 1

by Stuart Taylor, Jr

The American Lawyer

THE BIG HEARING ROOM IN THE RAYBURN HOUSE OFfice Building was overflowing with top executives and lobbyists for some of America’s biggest companies and most influential industries. Nine made their pitches to the Judiciary Committee from the witness table. Another 150 or so were gauging members’ leanings, schmoozing, billing time- keeping abreast of an epic lobbying battle that will shape the future of telecommunications and electronic publishing in America.

The newspaper industry, American Telephone & Telegraph Company, and its rival MCI Communications Corporation were there in force, spearheading a broad but fractious coalition of groups ranging burglar alarm companies and telephone ratepayers to West Publishing Company and the cable ‘1W industry. They were united-for at least-in a desperate push to get Congress to protect them from seven regional Bell telephone companies.

These "Baby Bells" were barred, by the landmark 1982 consent decree that spun them off from AT&T, from markets in which they could use their local telephone monopolies to strangle competitors-electronic publishing, long distance services, and phone manufacturing.

Now that decree is unraveling in the courts. The Bells broke down the door to electronic publishing last October, despite a warning from Judge Harold Greene of the U.S. district court in Washington, D.C., that this would lead to disastrous monopolization. A Bell lawyer predicts that the courts may wipe out all the restrictions by 1995. So the newspapers and their allies bear the heavy burden of moving a bill through Congress-always a much harder task than blocking someone else’s bill-to get back some of the protection they are losing in court.