The President and the Privilege

Independent Counsel Kenneth Starr’s claim that Hillary Rodham Clinton should not be able to use White House lawyers to protect her personal interests and then hide behind the attorney-client privilege has some force. But the case that the White House was planning to take to the Supreme Court as of last Friday isn’t mainly about that.

The broader principle at stake is whether the president himself-any president-or any other government official can ever confide in or seek advice from a government lawyer without fear of compelled disclosure of their communications.

The answer is no, says Starr. If his broad claim prevails, it would mean that any conversations today between the president and his current White House counsel, Charles Ruff, about Whitewater-related issues could be subpoenaed by Starr’s grand jury tomorrow.

Starr won an unprecedented 2-1 decision by the U.S. Court of Appeals for the 8th Circuit that the White House and other government agencies are not protected at all, in the face of a federal grand jury subpoena, by the attorney-client privilege or the related attorney work product doctrine.

The logic of Judge Pasco Bowman’s majority opinion (filed April 9 and unsealed May 2) also casts doubt, as do Starr’s briefs, on whether a governmental attorney-client privilege exists at all, even to ward off subpoenas by private litigants, congressional committees, or (it would apparently follow) criminal defendants who seek prosecutors’ notes of interviews with FBI agents.

If the 8th Circuit decision stands, any future president who is accused (as every recent president has been accused) of possible complicity in criminal conduct will be forced either to abandon any claim to the absolute confidentiality traditionally assured by the attorney-client privilege, or to confide exclusively in private counsel at huge personal expense.

Free Speech vs. Kids’ Lives

"Virginia Slims-It’s a woman thing."

A momentary glance outward-from a taxicab, while reading a legal brief defending tobacco companies’ First Amendment right to advertise-sufficed to send the billboard’s message skipping through my synapses, sped by splashes of color.

Similar messages are everywhere-magazines, buses, drugstores, ballparks, T-shirts-pressing in on my two preteen daughters and their peers, as they careen with undue haste toward "woman things."

Can the government restrict such ads in the interest of protecting kids from getting hooked on deadly tobacco products? Or would such restrictions (if upheld) "destroy the commercial speech doctrine," as a tobacco lawyer argued earlier this year before U.S. District Judge William Osteen of Greensboro, N.C.?

This is the most important clash of constitutional principle-perhaps the most important issue of all-in the whole, vast, spreading tobacco war. It should be resolved by allowing the government reasonable latitude to restrict (though not to abolish) tobacco ads.

The First Amendment front is relatively quiescent for now. The Supreme Court declined on April 28 to review a federal appellate decision upholding Baltimore’s broad curbs on billboard advertising of tobacco and alcoholic beverages. Judge Osteen also avoided the First Amendment issue in his much-publicized April 25 decision on the Food and Drug Administration’s proposed regulations. While upholding the FDA’s jurisdiction to regulate the manufacture and sale of tobacco products, the judge blocked the agency’s proposed curbs on advertising and promotion on the ground that Congress had not specifically authorized such regulations.

Selecting Juries: Dumb and Dumber

In a rare instance of truth emerging via an election campaign, Philadelphia District Attorney Lynne Abraham has touched off an uproar by disclosing a 1986 training video in which a senior prosecutor-now her Republican challenger-baldly urged colleagues to exclude whole categories of black people (among others) from juries.

Here are some of the choicer quotes uttered in the video by Jack McMahon, who has been a defense lawyer since 1990:

"The blacks from the low income areas are less likely to convict. There’s a resentment for law enforcement There’s a resentment for authority. And as a result, you don’t want these people on your jury."

"In selecting blacks, you don’t want tie real educated ones."

"Young black women are very bad."

McMahon also described having ducked a jury he did not want by feigning illness and lying to die judge.

He dispensed his racially tinged advice to his fellow law enforcers just months after the Supreme Court’s landmark 1986 decision, in Batson v. Kentucky, that the Constitution bars prosecutors from using peremptory challenges to exclude blacks from juries because of their race.

McMahon can, however, claim to have teen an equal opportunity stereotypes because he also said that prosecutors should bounce rich, white jurors and that "I don’t think you can ever lose with blacks from South Carolina. They are dynamite. They are law and order. They are on the cops’ side."

Is the McMahon video an egregious example of prosecutorial lawlessness? Or is it (as he has suggested) a rare insight into what is routinely done-although never acknowledged-by prosecutors across the nation?

Prosecute Him for Perjury?

For those of you who have not yet had your fill of wallowing in O.J. Simpson cases, at least one big question remains: Should Simpson now be hit with a perjury prosecution for lying under oath at his civil trial?

"Oh, no." I sense you groaning, "enough is enough!"

Well, perhaps. But let’s think it through. A Feb. 6 Wall street Journal editorial urged California’s attorney general to explore a perjury prosecution even if Los Angeles County District Attorney Gil Garcetti won’t. And in the words of Eugene Volokh, an associate processor at UCLA Law School, "The fact that you’re acquitted for murder doesn’t give you a license to lie in court in future cases."

There is ample evidence that Simpson lied rampantly and shamelessly under oath in his civil trial and deposition. Indeed, the evidence is so strong and so widely known that a decision not to prosecute might teach the deplorable lesson that lying- even under oath-is both expected and condoned.

There would be no apparent legal impediment to a perjury prosecution. It would not be double jeopardy: The alleged crimes-lying under oath in 1996 and 1997 about facts material to the civil case-took place after the criminal jury’s 1995 acquittals of Simpson for the 1994 murders.

To be sure, the criminal jury’s acquittals would bar a perjury prosecution of Simpson for denying that he committed the murders. This conclusion flows from the principles of Ashe v. Swenson (1970) , in which the Supreme Court held that the double jeopardy clause gives rise to a collateral estoppel rule that a defendant cannot be prosecuted for perjury (or any other crime) based on allegations that are necessarily inconsistent with a previous jury verdict acquitting that defendant.

A Constitutional Suicide Pact?

"Defendants concede, for purposes of this [summary judgment] motion, and for no other purposes, that … in publishing, marketing, advertising and distributing Hit Man and Silencers, defendants intended and had knowledge that their publications would be used, upon receipt, by criminals and would-be criminals to plan and execute the crime of murder for hire, in the manner set forth in the publications."

So stipulated Paladin Enterprises Inc., publisher of a book (Hit Man) that was used by a real hired killer, James Perry, to plan and execute three murders in Silver Spring, Md. Subtitled A Technical Manual for Independent Contractors, the book describes itself as "an instruction book on murder."

None of this has stopped media groups and free speech advocates-including the National Association of Broadcasters, the Association of American Publishers, the Reporters Committee for Freedom of the Press, and the Society of Professional Journalists-from rushing to the defense of Paladin’s First Amendment right to publish its murder manual with impunity.

While Perry sits on death row, these groups have joined in an amicus brief seeking summary judgment for Paladin and its owner, Peder Lund, in damage suits brought by survivors of the three victims. In March 1993, Perry shot Mildred Horn and her son’s nurse, Janice Saunders, three times each in the eyes (as advised by Hit Man); he smothered Horn’s quadriplegic eight-year-old son, Trevor, and pulled his breathing tube. The killer, who followed some 20 tips from Hit Man, was hired by the boy’s father, Lawrence Horn, who had hoped to inherit $1.7 million that his son had received in a malpractice settlement.

A Car Is Not a Pirate Ship

It’s hard to know whether to laugh or cry at the Supreme Court’s 5-4 decision on March 4 upholding the state of Michigan’s forfeiture of Tina Bennis’ half-interest in a family car.

Her offense was… well, nothing. Her husband was the offender. He had been caught in their car receiving oral sex from a prostitute, while parked on a Detroit street after ending his shift at a steel mill. Mrs. Bennis had been at home, wondering where he was, calling the missing persons bureau.

The Court did not hold that Mrs. Bennis had reason to know of her husband’s sordid little tryst. Nor did it rely on Solicitor General Drew Days III’s incredibly lame assertion (in an amicus brief) that Mrs. Bennis had not done enough to prevent her husband from using their car to betray her. Nor did it question her claim that she had recently paid for most of the $600 car with her own hard-earned money from baby-sitting and other chores.

Rather, the Court held in Bennis v. Michigan that none of this mattered. The state not only could confiscate and sell the car (as Mrs. Bennis conceded), but could use the proceeds of her $300 share to pay its costs and keep any money that might be left over. All this, done under the authority of a state nuisance statute aimed at purging neighborhoods of prostitution, was consistent with due process of law.

This result was dictated, Chief Justice William Rehnquist held for the majority, by some precedents dating back to the era of pirate ships and privateers. Widely regarded (at least until Bennis) as having been undermined by more recent decisions, those anachronistic precedents allow governments to forfeit the interests of innocent owners of properties used for illegal purposes, based on the outmoded legal Fiction that the property is somehow the guilty party.

The Right Way to Curb Fees

Stung by growing interest in an intriguing proposal for curbing contingent fees on early offers of settlement, the personal injury bar and other lawyers have mounted a ferocious counterattack with the approach of California’s March 26 primary election (when the proposal will be on the ballot).

A lot of their arguments have been so crude as to evidence both "the transparent self-interestedness" and "the ineptitude" of some members of the plaintiffs bar, in the words of Professor Stephen Gillers of New York University Law School.

But the debate has also featured some serious and substantive critiques of the proposal-not least by the same Professor Gillers. The hard question is whether these arguments make out a plausible case that it would do more harm than good.

Proposition 202, as it is called-and for which I have tentatively expressed enthusiasm in this column ("Tort Lawyers vs. Consumers," Jan. 29, 1996, Page 23)-would cap contingent fees at 15 percent of any settlement offer made by the defendant within 60 days of a claimant’s demand for compensation; if the claimant rejected the offer, the lawyer would remain free to charge whatever otherwise lawful percentage the claimant agreed to pay of that portion (but only that portion) of any eventual recovery that exceeded the original offer. The proposal would apply in all tort cases except class actions.

Free the Rodney King Judge

Could something good finally come from the brutal, racially charged, videotaped beating of Rodney King that shocked the nation five years ago?

That depends on whether the Supreme Court seizes the opportunity, in two cases that the King beating spawned, to restore some humanity and balance to the federal criminal sentencing process.

The Court could do this by making it clear that in cases like these, which involve extraordinary mitigating circumstances, federal district judges have enough leeway to show convicted defendants some mercy, and to treat them as individuals-rather than as numbers to be crunched through the arcane formulas of the Federal Sentencing Guidelines.

The irony is that the defendants appealing for mercy in the cases at hand are Stacey Koon and Laurence Powell, the two former Los Angeles cops who were convicted by a federal jury of violating King’s civil rights. The Court heard arguments in the cases, Koon v. United States and Powell v. United States, on Feb. 20.

Koon and Powell were released from federal confinement last December after serving the 30-month terms (minus time off for good behavior) ordered by U.S. District Judge John Davies. But the U.S. Court of Appeals for the 9th Circuit held that Judge Davies had let the two off far too easily when he granted them "downward departures" that spared them more than half of the 70 to 87 months of imprisonment suggested by the sentencing guidelines. Unless they win their Supreme Court appeals, the ex-cops will apparently have to go back to prison for three more years.

Tort Lawyers Vs. Consumers

Dear Fellow Attorney,

On March 26, 1996, your future as a lawyer will be at stake! There will be two initiatives on the [California] ballot that will end the tort system as you know it. If passed, they will affect all tort cases and eliminate virtually all cases involving motor vehicles. They are the pure NO FAULT AUTO INSURANCE ACT and the LAWYER CONTINGENT FEE UMYTATION ACT.

… No one will be handling automobile cases if this passes! Even if neither you nor your firm handles such cases, the impact on all attorneys and consumers should be obvious.

[By] drastically reducing the number of filings…[the contingent fee proposal] will effect [sic] everyone in the tort system!

We believe most attorneys in California view those measures as bad for consumers and all others involved in the Civil Justice system.

"All others": Those are the key words in the last sentence of the above excerpts, which come from a mass mailing by the state’s main association of plaintiffs lawyers, the Consumer Attorneys of California (CAOC), formerly the California Trial Lawyers Association.

This mailing has been used to solicit secret PAC contributions from large numbers of business lawyers who represent tort defendants. It is a blatant appeal to the mutual self-interest of lawyers in perpetuating the profits they reap by litigating against one another at their clients’ expense.

The most unusual and salient fact about the tort system in this country is that more than 60 cents of every dollar expended by defendants and insurers goes not to compensate injured plaintiffs, but to pay for transaction costs-led by both sides’ legal fees.

The Sentencing Tail Wagging the Guilt Dog

For the jury, it was a close call whether to find Rene Rodriguez guilty of selling any marijuana at all.

On the third day of deliberations, the jurors told the judge that they were unable to reach a unanimous verdict. But finally, after being given an Allen charge, they brought in a conspiracy conviction. It was apparently based on prosecution evidence implicating Rodriguez in a 10-ounce marijuana sale, together with the judge’s instruction that all the jury had to find to convict was that Rodriguez had conspired to sell a "measurable" amount.

The sentence: life without parole.

How’s that? Rodriguez would have faced only 18 months in prison, increased to 4 1/2 years by his two prior drug convictions, if his sentence had been based on the 10-ounce sale that was proven beyond a reasonable doubt at trial.

What jacked his sentence up to life without parole, under as-early "three strikes and-you’re out" statute enacted by Congress, was a finding by the judge, at the post-verdict sentencing hearing, that Rodriguez had probably conspired to sell more than 1,000 kilograms of marijuana, not just 10 ounces.

He probably had. But the judge, Thomas Curran of the U.S. District Court in Milwaukee, did not suggest that this had been proven beyond a reasonable doubt, or even by clear and convincing evidence. Nor did the prosecution claim to have that kind of proof.

Rather, under the current federal sentencing regime, the prosecution had to prove only that it was more probable than not that Rodriguez had sold 1,000 kilograms, in order to condemn him to die in prison.