In Memorian Andrew Katbi -- and the Power to Sense Injustice
Yesterday, at Duke Law School, some of us gathered in memory of Andrew Katbi, a law student who died in a car crash on March 31.  With the permission of his parents Tarek and Leslie Katbi and his sister Olivia, I read aloud the letter I had sent to them:

I send you my deepest sympathy and my prayer that this great loss will begin to heal.  Andrew was a student in my Evidence class and then in a seminar that he and five of his friends organized.  That seminar, by their choice, focused on movements for justice and social change, and on the responsibility of law and lawyers.  Each week Andrew and the others read and discussed the most important issues that a society must face.  They came down to the coastal town where I now live and spent a day sharing ideas.  

 For thousands of years, we have understood that in the complicated and difficult choices that we face in human society, there are two qualities that are essential:  the sense of reverence for the earth and its inhabitants, and the sense that they are entitled to justice.  Andrew possessed these qualities and prepared himself to show us, in his chosen profession, that law can be exciting, heroic and moral. 

 I have been a lawyer and law teacher for 47 years. Andrew is one of the young people who will always stand out in my mind.  He vindicates my own choice of profession.  His example of clear thinking, compassion, and concern for justice ensures that his influence on his peers will be felt, and this is only one way in which we may truthfully say that he is still present in our lives. 

Andrew had worked this past summer for the Ohio Public Defender office, devoting himself to saving the lives of those on death row.  His approach to life, learning and study was to focus on what he was able to do with his talents.  He had already begun plans to set up an organization devoted to the problems of over-incarceration and recidivism.  

Andrew's approach to the law reminds me of something Gore Vidal wrote to me a few years ago, "the negative injustice that arouses you to action is easier to deal with than the sometimes soaring 'justice' for which we good guys fight."  To say this is not at all to trivialize the fight for justice.  Rather, to focus on sensing injustice helps one to analyze what seems wrong and then to figure out how to correct it.  Abstract commitment to justice creates the risk that one remains -- well, abstract -- limited to hand-wringing regrets about the world's sorry state.  

Andrew's search, and his formulation of goals and plans, was informed by deep study and thought.  He read widely and searched outside the limits of his own culture for ideas and insight. Oliver Wendell Holmes, Jr., wrote in 1870 that,  "It is the merit of the common law that it decides the case first and determines the principle afterwards."  

I am not sure that a judicial disposition to decide first and seek reasons later is entirely a good thing, no matter how deeply I believe that this happens often.  Holmes's gift for aphorism sometimes led him to say things of less than universal validity.  

But Andrew's way of seeing injustice, and then seeking solutions, expresses the best part of Holmes's thought.  

What we call "law" is often seen by law students concerned with the final exam or bar passage, and even by lawyers and judges, as a "thing," a set of reified and crystallized ideas.  Statutes and judicial decisions do have this quality.  But when we see an injustice, our job is to see law as a process and not as a thing.  Our job is to understand the trajectory of what we might rather call jurisprudence, and to see if in its development a principle might be found to remedy that injustice.  

It is rare to encounter law students who are wise enough and brave enough to start on such a journey.  

 

 

 

A Free Video History Lesson -- Clarence Darrow
In 1912, Clarence Darrow was tried for attempting to bribe a prospective juror in the Los Angeles Times bombing case.  A jury acquitted him.  In the intervening years, some writers have claimed that we was really guilty.  None of these writers has much experience in trying complex cases, and none of them appears to have thoroughly read and understood the trial transcript.  In 2012, Santa Clara Law School did a re-enactment of the trial.  I was asked to portray Earl Rogers, Darrow's trial lawyer.  Steve Trott of the Ninth Circuit prosecuted.  Judge Alex Kozinksi presided.  U.S. district judge Charles Breyer was Darrow.  Santa Clara law student Luci Buda was my assistant, paralegal, and law clerk.  We had to do it all in a half day.  
I read the entire 90 volume trial transcript to get ready.  The presentation is available on-line and for free. 
http://digitalcommons.law.scu.edu/darrow/Trial/
There is a lot of historical lore in this DVD.  One instructive note is the way that Trott and I handled the key witness, Bert Franklin.  He was an alleged accomplice.  Judge Trott has written a great deal about the unreliability of such witnesses.  See United States v. Bowie, 243 F.3d 1109 (9th Cir. 2001) and his article at 47 Hastings Law Journal 1381.  One should watch the way he both embraced and distanced himself from his witness.  The cross-examination focused on what Franklin was getting for his cooperation, the social forces that were behind the Darrow trial, Franklin's inconsistent statements and the fact that all of his alleged conversations with Darrow were one-on-one so that Franklin's credibility really was the central concern.   Also, the experience was a lot of fun, despite the pressure of having to be Darrow's lawyer and "Darrow" being a federal judge. 
I am at work on a book about the trial. 

Boston Bombing and Texas Ammonium Nitrate
April 2013:  two explosions.  The Boston bombing drew thousands of law enforcement agents, the full force of the FBI, and intense media attention.  The fertilizer plant explosion in West, Texas, that killed dozens of people and destroyed homes has drawn media attention but a comparatively small law enforcement response.   A perceptive journalist has written about the contrast: http://www.truth-out.org/opinion/item/16101-death-in-boston-and-west-texas-intent-hidden-in-plain-sight.  
The Texas explosion warrants attention.  Ammonium nitrate can trigger an explosion.  It was the principal ingredient of the 1995 Oklahoma City bomb that killed 168 people.  The West plant shirked reporting and safe storage requirements.  
Under federal law, the corporation that owns and operates the plant is criminally liable if any of its employees committed an unlawful act within the scope of his or her employment and the intent to benefit the corporation.  As the United States Supreme Court said in 1908:

If, for example, the invisible, intangible essence of air, which we term a corporation, can level mountains, fill up valleys, lay down iron tracks, and run railroad cars on them, it can intend to do it, and can act therein as well viciously as virtuously.  

Under the Texas Penal Code, based on the Model Penal Code, the corporation is liable if

the commission of the offense was authorized, requested, commanded, performed or recklessly tolerated by the board of directors or by a high managerial agent acting within the scope of his office or employment. . . .

This provision has been applied to workplace safety issues, to charge a corporation with homicide. Of course, as I wrote many years ago in the American Journal of Criminal Law (volume 17, page 211) the corporation does the crime but not the time.  We can't put it in jail.  However, criminal prosecution that results in a finding of guilt operates to make the job of civil plaintiffs easier in suing for injury, death and damage.  The corporation and its insurers are foreclosed from relitigating the liability issue.  Thus, one important government role in these cases is to use the government's superior investigative and prosecutorial resources to ease citizens' burden.  
Because the fertilizer company was obviously and extenstively violating federal reporting and storage requirements, there are good grounds for investigating the individual officers, employees and directors as well.  If a federal or state grand jury has been working on this case, I have not seen the reports.  I have not seen any meaningful criminal law concern by any public official or agency. 
In this country, we incarcerate at a rate 5 to 7 times that of any comparable industrial nation.  Yet, only a small fraction -- about 1% of federal prison inmates are there for white collar crimes. Many of those are defendants who probably ought to have been placed on probation under various remedial conditions.  A fraction of this fraction are in jail for maiming and killing people by ignoring public safety in order to maximize corporate profit.  
As I posted on April 20, the Supreme Court has held that injury done by a corporation abroad cannot be remedied by a human rights civil suit in United States courts.  The West explosion shows the same policy of tolerance at work when the harm is done here at home. 

The Hard Work of Case Theory
With so much written work about the narrative, counter-narrative, story and case theory, it is easy to forget how much work it takes to try the lawsuit.  

Someone said to the poet Stephane Mallarmé, "I had a wonderful idea for a poem today."  The poet replied, "What a pity?" 
"Why?"

“You don't make a poem with ideas, but with words.”  

That is exactly the issue.  I have posted notes about the contingency of fact and law, that is, about how the rules of substantive law, evidence and procedure place limits on how the story may be told, and provide opportunities for telling it.  

Beyond what the law tells us, we are faced with basic problems of communication.  Jurors form impressions of the facts from words, documents, images and objects, skillfully presented by advocates.   As I noted in my post about the capital case of Orlando Hall,  the lawyer's power to present depends first upon having assembled all the ingredients of presentation.  That in turn requires having investigated.  I also noted in an earlier post that above average lawyer time spent on investigation and discovery yields above average results.  

What I have said so far may strike you as obvious.  But let us think a little more.  Here are two statements that describe the same factual situation:

• The two lovers checked in to a hotel.
• The two fornicators went to a motel. 

When the witness says "truck," we want the jurors to have in their minds the same truck of which the witness is speaking and the same truck that is an ingredient of our case.  We must always be thinking about the symbolic significance of words, as that significance will appear to the deciders.  This realization will dictate the rhythm of our questions to the witness, and the detail in which we will ask --  depending upon whether we care what truck the jurors imagine there to have been.  

A second problem is one that Louis Menand's book The Metaphysical Club exposes for us, in discussing 19th Century philosophy and science.  We cannot see causation.  That is, our analysis of cause must always await the happening of an event.  We then reason backwards to investigate how that event took place.  For lawyers, we must then fit our post-event investigation into categories such as "cause in fact" and "proximate cause."  We will understand that "proximate cause" has only to do with legal rules that make conduct more or less legally liable for results. 

We also cannot see intention, desire, or knowledge.  Jurors infer these states of mind from their understanding of conduct, as that understanding is mediated by their own social and cultural situation and by the judge's instructions about how to view the evidence.  (And this does not even get us to the artificiality of the mental element categories.  See my essay "Crime-Talk, Rights-Talk and Doubletalk," 65 Tex. L. Rev. 101 (1986) for more discussion of this issue.  

I will be talking in detail about case theory as one of a series of webcast talks to be broadcast in June and July.  Go to www.proedgroup.com for information.  Why, you might ask, should I think in such a detailed way about the daily business of seeing clients and preparing cases.  John Berger said it well: "The aim of systematic thought is economy of thought."  We work better and smarter when we work mindfully. 

 

The Kiobel Case: State-sponsored Terror and Alien Tort Claims

On April 17, 2013, five Supreme Court Justices held that victims of human rights violations committed by a subsidiary of Shell Oil had no right to sue in federal court in the United States. In the 1990s, in Nigeria’s Ogoniland, residents protested the environmental harm being done by a subsidiary of Royal Dutch Shell of the Netherlands and its English affiliate during exploration and production of oil. The Nigerian government reacted against these demonstrations by plundering villages, and raping and killing protesters. The Shell subsidiary encouraged these actions, and provided financial and logistical support. These were crimes against fundamental principles of human rights. The plaintiffs reside in the United States. A private person or entity who aids and abets a state actor in wrongful conduct shares the liability. Under U.S. law, this would be true of a Ku Klux member helping a sheriff’s deputy brutalize a civil rights worker, and the Supreme Court has so held.

The conduct described in the plaintiffs’ case amounts to state-sponsored terrorism, and one had thought that there arose a duty on the part of all branches of government to address and remedy it.

The Court’s majority opinion was for five Justices, although Justice Kennedy’s concurrence provides a possibly limiting caveat. And even Justice Roberts' opinion for the majority contains a double-edge caveat: some claims that arise in foreign countries camn perhaps be heard, but on the other hand some claims that "touch" the United States may not do so with sufficient force.  Four Justices concurred in the result, and on a different theory than the majority; their votes, plus that of Justice Kennedy, might signal that there is yet an opportunity to fashion a judicial remedy for the kinds of human rights violations at issue in this case.

That said, the majority opinion is a mess. It mixes up subject matter jurisdiction, forum selection and choice of law. This folly is all in the service of saying that a venerable federal statute, enacted in 1791 to protect human rights, is now made nearly useless to serve that intended and laudable purpose. The case is Kiobel v. Royal Dutch Petroleum.

The Majority’s Tortured Rationales

The Alien Tort Claims Act, or ATCA, has been a formidable weapon in the struggle to get redress for victims of human rights crimes. For a good brief overview, see http://en.wikipedia.org/wiki/Fil%C3%A1rtiga_v._Pe%C3%B1a-Irala. ATCA, which was part of the Judiciary Act of 1789, says that the “district courts shall have original jurisdiction of any civil action by an alien for a tort only committed in violation of the law of nations.” The Court held that this statute permit a court to hear any lawsuit involving a wrongful act committed outside the United States. The Court said that allowing a court to hear and decide such a case might interfere with the executive branch and Congressional control over foreign and military policy, and therefore the statute must be presumed not to have extraterritorial application. Besides, the Court said, “United States law governs domestically but does not rule the world.” This rationale is contrary to the statutory text and the evident intent of those who wrote it. It mixes up subject matter jurisdiction with forum selection and choice of law in ways that should horrify students of civil procedure. It is out of step with a basic tenet of international law about the responsibility of national courts. And finally, in light of United States military and paramilitary acts around the world, it is just plain silly. I address these issues in turn. (For a more detailed treatment of the basic issues, see my book Thinking About Terrorism (2007). Lord Justice Stephen Sedley’s book Ashes & Sparks (2011) also has a good essay on the general subject of human rights norms.)

Text and Meaning of the Alien Tort Statute

Those who drafted the ATCA knew and understood the issues that a new nation faced. They were conscious of the imperial power being exercised by Spain, Portugal, France, the Netherlands and England. They wrote a statute that gave United States courts power to interpret and apply “the law of nations.” These words were those that Blackstone had used in his Oxford lectures. They echoed the writings of Hugo Grotius and other 17th Century writers, who had a broad and historically-rooted understanding of the limits on permissible sovereign conduct.

The 1789 authors might have said instead “international law,” for that phrase had also come into use around 1776 in an essay by Jeremy Bentham, who credited a French legal writer for first using the word “international.” Bentham sharply rebuked the Blackstone formulation of “law of nations,” and argued that there could be no such law that stood any higher than the will of a particular sovereign. That is, if the Spanish wanted to sponsor piracy, or the Portuguese wanted to indulge in torture or the slave trade or any such iniquity, neither the world community nor any other sovereign state had any right to say anything about it.

Thus, by choosing the words “law of nations,” the Congress intended to give the courts power to do what the Kiobel court says they may not do: to consider whether the conduct of a foreign sovereign might be subject to suit in the United States courts.

Note that I say “might.” As we shall see, there are many and sometimes good reasons that such a power should not be exercised in a particular case. But to construe this statute as barring all such exercises is contrary to its text and history.

In addition to ignoring text and history, the Court’s stated also performs a peculiar sleight of hand. It speaks of deference to foreign policy in the treatment of foreign sovereigns. It is true that the Executive branch has great responsibility in that field, and its actions are entitled to deference crom the coordinate branches. But in the Kiobel case, the government of Nigeria was not a defendant. No foreign sovereign’s interest was involved, except perhaps the reputational harm that might be done when the evidence showed what had been done to the victims. United States policy towards Nigeria could not possibly be affected by the trial of this lawsuit.

No, the Court accorded the deference due sovereigns to a multinational oil company. Multinationals notoriously seek to avoid accountability by “outsourcing” jobs that can be exported, and making deals with complicit governments for activities such as agriculture, mining and oil production that must be done where the goods are grown or found. It is therefore essential that the courts in metropolitan countries where the multinationals have their headquarters to take a role in defining and policing illegal conduct. In past times, the Supreme Court has recognized the power of great corporations to do great harm, and has wisely interpreted statutes to make them accountable. See Tigar, It Does the Crime But Not the Time, 17 Am. J. Crim. L. 211 (1990), citing NY Central RR v. US, 212 US 481 (1909). And we have recently been taught that corporations are persons at least to the extent of having free speech rights. (The Court had asked for briefing on whether corporations are liable under the ATCA, but did not decide the question. While corporate criminal liability in US law is “only” 104 years old, civil liability has been recognized in Western legal systems for at almost two millenia.)

Jurisdiction, Immunity, Forum Selection and Choice of Law

The ATCA confers subject matter jurisdiction, that is the power to hear a case. It does not interfere with other provisions of law that permit a court to dismiss or transfer the case. In this sense, the Court’s Kiobel holding is grossly overbroad, for it uses a flawed interpretation of a jurisdictional statute to achieve goals that could be met with other, narrower, procedural devices.

Sovereigns are amply protected by a broad though not unlimited immunity from suit. Thus, all of the Court’s expressed concerns are met by the Foreign Sovereign Immunities Act, under which the Kiobel plaintiffs could not have added Nigeria as a defendant even if they wanted to. This point simply emphasizes that all the Kiobel majority has done is put the mantle of protection normally accorded to sovereigns around the shoulders of Shell Oil.

The doctrine of immunity is powerful. It can and sometimes should be interposed to prevent the courts of one sovereign from imposing their views on another sovereign or its officers. The doctrine has contours and limits that judicial tribunals are busy defining and refining. When Spain sought to extradite Augusto Pinochet for trial on charges of torture and genocide, his admitted claim to immunity as former President of Chile did not reach far enough to insulate him from liability for those crimes. http://en.wikipedia.org/wiki/Augusto_Pinochet. In the Yerodia case, the International Court of Justice spoke cautiously about the immunity doctrine and its reach. You can read about the case by following this link: http://en.wikipedia.org/wiki/Abdoulaye_Yerodia_Ndombasi. Be sure to read the Congolese judge’s opinion.

Second, a court with subject matter jurisdiction can hold that a lawsuit that arises in a foreign country, and as to which the evidence may be found there, should be tried in that country. That is the doctrine of forum non conveniens.

Third, United States courts can express deference to the legal regimes of other countries by applying foreign law when that is appropriate – the choice of law issue. I reiterate, however, that the Congressional purpose for using the phrase “law of nations” was to signal that conduct that might be tolerated in a foreign state might nonetheless be held to be a basis for liability in the courts of the United States. Again, I stress that the U.S. courts would not be confronting the sovereign state of Nigeria about its legal rules; they would be saying that when a multinational corporation does business there, it may be held to the standards expected by the metropolitan countries where it is headquartered.

The Duties of National Courts

Where are the Kiobel plaintiffs to do for redress? Surely not back to the place where the killings, rapes and plundering took place, to ask for a hearing from those responsible for the harm that was done. Are they then to wait for a decade or two or three until some transnational court is set up to address these issues. We know from recent examples that such courts might try the local offenders on criminal charges, but none of those courts has or exercises the power to hold the metropolitan country sponsors of terror accountable.

Under the law of nations as it has developed since Nuremburg, national courts have primary responsibility for addressing human rights violations. The obligations of temporary or permanent transnational courts are secondary. This principle has been elaborated in recent years, but it well antedates the ATCA and has been applied by the United States Supreme Court in the past.

The Unregulated Superpower

Kiobel is not the Court’s first decision that limits the power of US courts to address state-sponsored terrorism. Other notions, such as “non-self-executing treaties,” “political question,” and “state secrets” have also been used as building blocks for a system of rights without remedies.

However, its expressed concerns leave one wondering where the Justices have been living for the past 60 years. Deference to foreign sovereigns? Letting other countries devise and enforce their own legal rules? The CIA participated in overthrowing the governments of Guatemala, Iran, Chile and the Dominican Republic. American military power invaded Grenada, Afghanistan, Iraq. American aircraft bombed the former Yugoslavia and Libya. The United States has military bases in 63 countries. It has at least 700 military bases and installations worldwide. United States military personnel are working in more than 150 countries. Our drones are in the sky in many places. The United States supplies arms and military assistance to dozens of countries worldwide.

Assume, for purposes of argument, that this governmental presence and consequent influence is entitled to some deference from judicial examination. Even such deference does not create a zone of impunity for corporations who decide to surf the wave of US influence for their shareholders’ profit.

To repeat, Shell Oil is not a government. I have been to Shell’s headquarters. They can’t be a government. They don’t have a duty-free shop.

Boston Marathon Bombing -- Dangers and Solutions
The young man at the lunch counter in my small North Carolina town looked at the television set in the corner and said, "I hope they don't just grab somebody because they might be Taliban or something."  "Yes," I said, remembering the bombing cases I have seen in my career, "I hope so too."  

Jumping to Conclusions -- Wrong Person
Within hours after the April 19, 1995 bombing of the Murrah Building, a Jordanian was being held.  The assumption had been that the bombing must have been the work of an Arab.  When Timothy McVeigh and Terry Nichols were arrested, the FBI's focus shifted.  The agents were not jumping to conclusions.  They put on blinders, and announced that the case was solved.  They therefore failed to follow up all the leads to Timothy McVeigh's known associates and potential accomplices.  

The messages are that stereotypes are dangerous, and so is the illusion that we have solved a case.  Good scientists know that a solution that bears out a hypothesis is always tentative, subject to being reconsidered when new evidence comes to light.  This is also a teaching borne out by the number of death row innocence findings in recent years.

Jumping to Conclusions -- Unconstitutional Tactics
 Gruesome killings lead to quick law enforcement action.  Unlawful detention, unconstitutional interrogation and search are often followed by suppression of exculpatory evidence.  

Jumping to Conclusions -- Forensic Foolery
About 20 years ago, FBI scientist Dr. Frederic Whitehurst blew the whistle on the FBI forensic laboratory.  Lab work in bombing cases was being (mis)managed by people with no proper qualifications.  The FBI fired Whitehurst and when he sued they wound up paying him substantial damages.  An Inspector General report documented findings of incompetence and mendacity.  There were changes.  

You may also remember In the Name of the Father, the motion picture about fakery in the IRA bombing cases.

The Proper Solution
 Good forensic science provides clues to "whodunit," and reliable trial evidence.  Media reports say that at least one of these bombs was built in a pressure cooker, with ball bearings to give the explosion additional people-killing force.  That is, this was not a bomb made from such "ordinary" items as diesel fuel and ammonium nitrate.  Bomb residue analysis is "good" science.  If crime scene samples are properly taken and stored, bomb residue will tell us what substances were used.  That will greatly narrow the scope of investigation, because access to such material is fairly limited.  Even commercial explosives that might be found at, for example, a quarry site, have trace elements that identify particular products.  The detonation device will probably also have left residue that will yield information. Even a relatively common explosive substance such as gunpowder will have characteristics that may allow tracing to a manufacturer. And the detonation device has its own "signature."

The second vector is the pressure cooker and the ball bearings or other shrapnel.  The young man at the lunch counter looked up at the TV and asked, "what's a pressure cooker?"  I said, "Your mother probably knows." These days, pressure cooker sales are probably not what they were.   The metal used in this particular cooker may identify a brand.  Internet research makes it easier than once it was to trace groups of products.  This is a daunting task that requires personnel, but the agencies involved are well-staffed.  In the Oklahoma City investigation, the FBI accumulated nearly 100,000 witness statements and catalogued 100,000 items of physical evidence. 

These two forensic leads will be supplemented by fingerprint evidence, closed-circuit TV camera recordings, and the recollections of passersby.  

Why Talk About This
When Miranda v. Arizona was under consideration by the Supreme Court, prosecutors and police protested that their work would be hampered by limits on potentially coercive interrogation.  Their cry echoed that of the police official during India's colonial period, saying "it is far pleasanter to sit comforably in the shade, rubbing red pepper in a poor devil's eyes than to go about in the sun hunting up evidence."  

The Miranda majority opinion met and answered many law enforcement criticisms.  And these days, jurors are ready to evaluate reliable forensic evidence.  Indeed, under the influence of television programs such as CSI, they have some to expect it.  Defense counsel also have access to reliable scientific evidence, to rebut the prosecution's case and to build their own.

So here is a hope that fears expressed by the young man who staffs the lunch counter in our town will not come to pass. 

Story-tellling: Diego Garcia, the Chagossian people, and David Vine

Diego Garcia is an Indian Ocean island in the Chagos Archipelago that houses a U.S. military base. The Chagos Archipelago is a group of 64 islands located about 1200 miles from Mauritius and 1000 miles from India. It was a part of the British colony of Mauritius, but remained a British colony when Mauritius became independent in 1971.

These islands were the home of thousands of families descended from former slaves. The slaves had been imported from Africa to work the coconut plantations. They formed a cohesive social group – an indigenous people. But in the 1960s, the United States and Great Britain decided that the U.S. could and should have a military base on Diego Garcia – if only the people living there could be expelled.

That forcible expulsion was carried out, first by cutting off food and medicine and then by loading people on a ship and taking them to Mauritius and the Seychelles. The US and UK diplomats told the world community that the islands were essentially uninhabited, that the only people there were transient migrant laborers with no real ties to the territory. This story is told by social anthropologist David Vine in Island of Shame.

The Chagossian people’s rights have been litigated in the United States, the United Kingdom and the European Court of Human Rights. The message of today’s post is that David Vine’s book tells us a great deal about how to present the claims for justice of those whose lives and culture are different from our own and from those of the “deciders” – judges and jurors.

In the literature of imperial powers, the cultural richness of conquered peoples hardly figures, except as varieties of curious customs. I develop this argument in Narratives of Oppression, 17 Human Rights Brief 34 (2009), http://www.wcl.american.edu/hrbrief/17/171.cfm.

When we set out to litigate the Chagossian’s rights, we wanted first to understand their story, then to fit it into the classic mold of a demand for justice.

We introduce our client

We show the wrong that our client has suffered

We show how much better off our client would be if that wrong had not been done

We calculate a remedy: what amount of money damages would make up for the difference between what was done and what ought to have been done, or in some cases, what actions must the defendant take to remedy the wrong

In an antitrust case, we would do that with comparative economic models – here is what the market looked like when the defendant’s rigged it by price-fixing, here is what the market would have looked like if that had not happened. Then, what should the defendant pay to make up the difference in potential gain? In an injury case, we can calculate lost wages, medical care and ongoing rehabilitation costs.

In all these cases, the techniques and psychology of persuasion are simply irrelevant until and unless we have done the hard work of finding out what happened and studying hard enough to know what is important. Otherwise, our persuasiveness is simply noise made by banging on an empty vessel.

In the Chagos litigation, we were dealing with a very much larger canvas on which to project the story. We had to help deciders to escape the toils of their own limited consciousness, and to see the Chagossians’ world as the Chagossians saw and lived in it. Too often, we in a dominant culture claim that we see the world when all we are doing is looking in the mirror.

Our solution is a guide to every lawyer, client and judge. First, we cast about for those who understood cultures similar to that of the Chagossians – social anthropologists. Among those with whom we spoke was Professor Shirley Lindenbaum. With her help, we had an idea. Suppose a social anthropologist could work with the Chagossian people and build a model of their lives as they now live, and contrast that with the lives they would have had if they had not been forcibly displaced.

Suppose that this modeling could be done with sufficient factual basis and academic rigor that the anthropologist’s conclusions were admissible in evidence as expert testimony. (Think Daubert.) This inquiry led us to two other scholars, Wojciech Sokolowski and Philip Harvey. Sokolowski is a sociologist at Johns Hopkins who has done impressive social comparison studies. Phil Harvey is a lawyer and law professor who also has a Ph.D. in economics from the New School.

So we had our image of a study, and of a scholar. Professor Lindenbaum suggested that a graduate student at CUNY, David Vine, might be interested in this project. He was. David did his Ph.D. thesis on the Chagossian people. Island of Shame is the resulting book. I recommend the book not only because David tells a compelling story, but because it helps those of us in the law to reflect on what we ought to be doing. As I said a couple of years ago:

Our task — and the reason why the Chagossian litigation is so important — is to construct the narrative of what was taken from indigenous people. It is a reflection of basic truths about advocacy that our task as lawyers is not only to have ways of seeing , but also ways of saying . In our culture and our tradition, the story always precedes the lesson, and we must make the story effective. Here, I confess, I have a disagreement about advocacy with some of my wonderful colleagues, here. We do not need to read books about the psychology of persuasion; we need to read books about the course of human history. The great lawyers of this or any other time have been students of human history, not skilled carnival barkers. That must be our study, so that we can make these connections. The story, therefore, is told from human experience. It is mediated by us — who are in that sense translators but its foundation is authentic human experience.

Is the Chagos litigation still relevant? Yes, it tells us a great deal about the current state of American and British military and foreign policy, as well as about the colonial legacy. More on that in the next post.

Understanding the Self and the Other -- Part Two

This is a post about telling the story of someone very different from the jurors, the judge, and the lawyers.

Orlando Hall was convicted in 1995 of the drug-related kidnapping and murder of Lisa Rene. There is no doubt that he participated in the crime. The nature and degree of his participation is open to serious dispute. The principal evidence against him was provided by co-participants acting under plea arrangements with the prosecutors, and by a jailhouse informant who claimed to have heard Mr. Hall make inculpatory statements.

A federal jury sentenced Mr. Hall to death. He is on federal death row in Terre Haute, Indiana. His petition for review by the Inter-American Commission on Human Rights is pending. Citations to the case include 152 F.3d 381 (5th Cir. 1998)(direct appeal); 455 F.3d 508 (5th Cir. 2006).

The Supreme Court has held that no matter how horrific the crime – and this crime merited that description – a defendant cannot be sentenced to death unless he or she has a full opportunity to present mitigating evidence. The sentencers must make a “reasoned moral response” to evidence about the offense and the offender.

The ABA Guidelines on capital representation tell counsel to do a prompt and thorough mitigation investigation, going back at least three generations.

Mr. Hall’s counsel did not begin their mitigation investigation until two and one-half weeks before trial. They were still doing that work during jury voir dire and opening statements, thus forfeiting the opportunity to make their questions to the jury and their initial discussion of the evidence pointedly relevant to Mr. Hall’s circumstances.

I have been an expert witness in the federal courts and before the IACHR on the ineffective assistance of counsel issue, and want to share some thoughts about counsel’s role in a case like this. Here are some excerpts from my testimony before the IACHR:

Prosecution and Defense Narratives – the “Other”

The prosecutor in a capital case says to the jury: take this life. This person is the other, unworthy of being in human society. Now a juror will not vote for that unless they truly believe that this is the other, unfit to live. And, when a defendant is already separated from the deciders, the all white jury, in this case, by the fact of his being African-American and their being white, he is at a systematic disadvantage. And, these lawyers come to the case and they too are members of the dominant culture. This separates them from their client who grew up in a turbulent household, born into poverty in a racially striated community. His opportunities for self-transformation constrained by a culture marked by generations of loss and hopelessness and yet these lawyers did virtually nothing to overcome the barrier between themselves and him. They had a duty, but especially because they were going to present their material to this all white jury who was going to be as different from Mr. Hall as counsel themselves. After all, Mr. Hall’s involvement in the events that lead to the death here were not in dispute. He had surrendered and confessed without counsel. He had already begun to show remorse. Defense counsel were appointed more than six months before the trial began and didn’t even begin to investigate mitigation until two and a half weeks before the trial. They didn’t begin to speak to friends and family and acquaintances who would actually feel a sense of reluctance to reveal all that they knew. They spent so little time visiting Mr. Hall’s community; they could not possibly have gained the knowledge that they needed. Despite the fact that the ABA guidelines tell us that there is this pivotal importance of using the investigation to develop the case. And they did nothing in the trial phase also, to lay out the basis for their later mitigation case.

Five Defense Counsel Failures

First, the jury heard that Mr. Hall as a youngster was simply a witness to family violence, and yet the fact was that his father beat and raped his mother with the children waiting in the adjacent room to hear it. His father beat the children and told them that he’d brought them into the world and could take them out. The jury never heard this. A trauma specialist, Jill Miller showed that a full and proper investigation would have shown the jury that Mr. Hall was a victim of serious physical and mental abuse and yet trial counsel never saw the importance of getting an expert like Ms. Miller.

Second, trial counsel ignored the indications that Mr. Hall had neuro-psychological deficits. They asked for appointment of an expert and then when the expert wasn’t available they abandoned the plan. Post-trial counsel showed that Mr. Hall suffers from neuro-psychological deficits, that they affect his judgment and problem solving ability. This could have helped jurors to understand how he could have come to commit this crime.

Third, counsel failed to investigate aspects of his upbringing and culture. They had a reverend that knew him, a preacher, come to the trial, but didn’t even put him on the stand. This preacher would have explained how an African-American without economic opportunities could drift into the drug trade. How Mr. Hall perceived the need to support his siblings. The preacher could have talked about Mr. Hall’s remorse.

Fourth, counsel did nothing to take steps to find positive character evidence. Now defects three and four provide jurors, who in a federal death penalty case need only one mitigator to vote to spare the life of a defendant, could have provided any given juror with a narrative to vote to spare Mr. Hall’s life.

And finally counsel did nothing to deal with available evidence of Mr. Hall’s good conduct during previous incarcerations.

What This All Teaches Us – Two Final Thoughts

Our task as counsel is to help jurors see the basis for compassion, to respect differences among people but not to make those the basis of invidious comparison. We must do this with words, witnesses and exhibits. To assemble those takes time and thought.

Thought One: 
Decades ago, Professor David Trubek and others studied thousands of civil cases, and found that above average lawyer time spent on investigation, discovery and legal research increased the chance of success. Above average time spent seeking settlement decreased the chance of success. Of course, your case will probably be settled, but a successful settlement requires understanding and shaping the narrative in accord with a set of discoverable legal principles.

Thought Two:

· Exodus 22:21: Thou shalt neither vex a stranger, nor oppress him: for ye were strangers in the land of Egypt.

· Exodus 23:9: Also thou shalt not oppress a stranger: for ye know the heart of a stranger, seeing ye were strangers in the land of Egypt.

· Leviticus 19:34: But the stranger that dwelleth with you shall be unto you as one born among you, and thou shalt love him as thyself; for ye were strangers in the land of Egypt.

· Deuteronomy 10:19: Love ye therefore the stranger: for ye were strangers in the land of Egypt.

The client’s story, the client’s claim for justice, is based upon a set of transcendent and shared values. If you represent the “other,” you must make the “other” into “us.”

Lawyer, Client, Jurors – Understanding the Self and Other -- Part One

This will be a three-part post. Today, I signal some work about understanding ourselves. Looking at how our views and attitudes were shaped is a necessary first step towards understanding our clients and presenting their narratives to jurors. Of course we are shaped by our social, cultural, historical and economic circumstances. But I have just finished – in a single night of reading – Richard Russo’s Elsewhere, ostensibly a memoir built around his mother. Russo is a brilliant novelist, wry and insightful. This book helped me see more clearly issues about my own growing up.

I put Elsewhere on the shelf alongside Samuel Butler’s The Way of All Flesh, Butler’s only novel. It was not published until 1903, a year after his death. He had probably written it much earlier. He traces a father-son relationship of the 19th Century, and is sure to evoke memories – funny, painful and wise – about one’s own life. Along the way, Butler manages to skewer many Victorian pretensions, which makes the journey even more agreeable. (The book is no longer in copyright, and can be downloaded for free at http://www.gutenberg.org. Used copies abound on the internet.)

I have also been reading Louis Menand’s The Metaphysical Club: A Story of Ideas in America. Menand probably intends us to read his book for its portrayal of Justice Holmes, William James and others of their generation. For me, however, the influence of the elder Holmes and James upon their sons yields the greater insight. Taken together, the three books tell us that while we love, respect, honor, despise and resent our parents, there is a way in which most of us manage to extract value from having known them. In a metaphorical sense, our growing awareness of all these feelings lets us climb on to their shoulders to see a little farther and better than they were able to do.

Finally in this library tour, Terence Real has given us I Don’t Want to Talk About It: Overcoming the Secret Legacy of Male Depression. Real is a distinguished psychotherapist, and his book is filled with fascinating case studies. The most affecting part of it, however, is his blunt discussion of his father and their relationship.

Why talk about these books? I was drafting a blog post about how we understand our clients and tell their stories. Inevitably, I thought about the law school classes I have taught, and how most of my students are of different – socially, ethnically, economically – from the clients most in need of their services. And, in this post-Batson age when juries are more and more representative of the community as a whole, how different they are from the jurors to whom they will speak. Finally, I reflected on how even the most diverse jury may feel quite alienated from clients who seem “different.”

So, before I could write something intelligible about what I as a lawyer can and should do, it would be well to practice a little self-understanding. Not easy. As Jack Kornfield says, “Self-discovery is never good news.” As my selection of books may suggest, the road to that understanding leads us through our upbringing. As the saying goes, if your parents did not have any children, you probably won’t have any either. 

Will self-examination help you do better in this fast-changing, competitive world of law and litigation?  I think so. Darwin did not speak of survival of the fittest.  His message was survival of the adaptable. 

In the next two posts, I will talk about this problem of helping deciders (judges and juries) understand clients whose journey is quite different from their own, or whose conduct seems to them beyond understanding and therefore beyond justification.

Drones, the Death of Children and the 20th Century

The New York Times reports, http://www.nytimes.com/2013/04/07/world/asia/origins-of-cias-not-so-secret-drone-war-in-pakistan.html?pagewanted=3&hp&pagewanted=all&_r=2&, that in 2004 the CIA got permission to launch killer drones from Pakistan.  The quid pro quo was that the first drone strike had to kill an opponent of the Pakistani government.  The CIA obliged, and killed Nek Muhammad and several others who were near him, including two boy, a 10-year old and a 16-year old. 

          This deal has been secret until now.  It underscores the issue in my earlier post: the alleged executive accountability of which Chief Justice Marshall spoke in Marbury is rendered fictitious when the executive acts secretly with concealed motivations.  The judicial branch abdicates its own responsibility when it refuses to insist that deference to a coordinate branch requires that there be an explanation of what is being deferred to. 

            Lately I have been reading John Berger’s collected work in Selected Essays of John Berger.  Berger began his life-work as a critic and historian of art, and has used that perspective to share a vision of society and social change.  He reminds us that at the dawn of the 20^th century, artists, scientists, workers philosophers and agitators could all see that the convergence of technology and social awareness might produce great social change.  There is in this vision an echo of Shelley’s introduction to Prometheus Unbound:

“We owe the great writers of the golden age of our literature to that fervid awakening of the public mind which shook to dust the oldest and most oppressive form of the Christian religion. We owe Milton to the progress and development of the same spirit: the sacred Milton was, let it ever be remembered, a republican, and a bold inquirer into morals and religion. The great writers of our own age are, we have reason to suppose, the companions and forerunners of some unimagined change in our social condition or the opinions which cement it. The cloud of mind is discharging its collected lightning, and the equilibrium between institutions and opinions is now restoring, or is about to be restored."

           And this weekend, at the suggestion of my friend Per Erichsen I have begun Louis Menand’s delightful book The Metaphysical Club, which brings together the thought, lives and work of Holmes, Dewey, William James and Charles Peirce.  Here too one finds evidence of this early 20^th century sense of human power to make change.

            These early ideals were shaken by the carnage of World War I, and also by the way that the war was used by government as an excuse for repression.  Zechariah Chaffee was among the first to describe the assault on free expression in the United States.  In France, as opposition to the war grew, President Clemenceau established military commissions and had a few opposition journalists, tried, convicted and shot. 

            Inter arma enim silent leges, wrote Cicero – in time of war the laws are silent.  Or maybe you can’t hear them.  The noise of armaments, perhaps.  Or simply the silence of governmental secrecy. 

            And here we are again. From 1946 onwards, as we learned the lessons of the holocaust, and were taught by the colonial liberation movement that social change was not only right but possible and necessary.  We learned how to see and predict the consequences of abusing the planet’s resources. 

            The reaction has been to take from us the right to see what it being done, and the power to change it.  Sad irony that the New York Times, struggling to survive in a marketplace full of invective masquerading as journalism, should prove once again the utility of a more-of-less free press.  (Two cheers for the Times, then; I hold back at least one cheer for the earlier sycophancy about Iraq.)