Good lawyering, bad PR

“MGM resorts sues victims of Las Vegas massacre”: the headlines sound downright dystopian, and the social media reaction is pretty much what you would expect.

But in context, the company’s move makes sense.

MGM, owners of the Mandalay Bay hotel and casino, are being sued for their alleged negligence in inadvertently providing a shooter’s nest for Stephen Paddock, who massacred dozens of people at a country music festival last October.   The company’s response is to seek a declaration in federal court that anti-terrorism legislation shields them from liability:

The company cites a 2002 federal act that extends liability protection to any company that uses “anti-terrorism” technology or services that can “help prevent and respond to mass violence.”

In this case, the company argues, the security vendor MGM hired for Route 91, Contemporary Services Corp., was protected from liability because its services had been certified by the Department of Homeland Security for “protecting against and responding to acts of mass injury and destruction.”

The lawsuits argue that this protection also extends to MGM, since MGM hired the security company.

They do not seek money from the victims but do ask that a judge decide if the 2002 act is applicable, and if so, determine that future civil lawsuits against the company are not viable.

Debra DeShong, a spokeswoman for MGM Resorts, released a statement about the litigation Monday.

According to the statement, “The Federal Court is an appropriate venue for these cases and provides those affected with the opportunity for a timely resolution. Years of drawn out litigation and hearings are not in the best interest of victims, the community and those still healing.”

Is the company correct?  Beats me.  That’s for a U.S. Federal Court to decide.   But just because a company – even a company involved in the morally dubious business of gambling – is facing lawsuits from sympathetic defendants doesn’t meant they’re legally in the wrong.

It’s understandable if many Americans, who can’t seem to make any headway in fighting the gun lobby and curtailing their country’s firearms culture, want someone to be punished.  And maybe MGM does indeed bear some liability.  But they are entitled to press their case to the greatest extent allowed by law.

An alt-lawyer for the alt-right

The Washington Post profiles the eccentric Elmer Woodard, a Virginia lawyer who  represents the most deplorable of deplorables:

Woodard, 57, lives about two hours south of Charlottesville, in the tiny town of Blairs, Va., where he has his own law practice, according to public records. His email address, a nod to his past when he filed lawsuits against used-car dealerships, begins with “isuecrooks.”

When he has a case in Charlottesville, he is easy to spot. A driver drops him off in front of the courthouse. Dressed some days in a beige or light-blue seersucker suit, Woodard always dons his signature straw boater hat, encircled with a navy and red ribbon. Most of the time, as he walks past the gantlet of local reporters, he’ll tip his hat and wave a courtly hello. But the press-averse attorney rarely stops for interviews, usually shuffling straight into the courthouse with his cane and black Velcro-strap shoes.

But on his way out of a hearing in May, Woodard agreed to field a few questions from a Washington Post reporter. Asked numerous times whether he regarded himself as a white supremacist, ­Woodard repeatedly said: “I consider myself an attorney.”

Pressed to elaborate, Woodard said: “Just because I represent a pervert doesn’t mean I support perversion. I represent murderers, drug dealers and perverts. Miraculously, I’m not one of them. If you know any, send them my way — only the rich ones.”

Even neo-Nazi scumbags are entitled to legal representation, and as a sole practitioner myself, I can’t really blame Woodard for finding his niche and exploiting it.  Gotta keep the lights on (and straw boater hats on the rack), after all.

But if it makes you feel better, he kind of sucks at his job:

Although prosecutors didn’t raise during the trial Goodwin’s public denial of the Holocaust or his alliance with an Arkansas white nationalist group, ­Woodard made race an issue during his closing arguments. “They want you to convict this man because he’s white, and DeAndre is a black man,” Woodard declared to the jury, which included two African Americans.

After Kennedy

Because of the two defining features of modern American politics – Republican ruthlessness and Democratic strategic blunders – President Trump will almost certainly get to choose a more conservative replacement for retiring Supreme Court Justice Anthony Kennedy.

There is one way the Democrats’ minority in the Senate would prevent a new Justice from being confirmed before the midterm elections, by taking the risky and unprecedented step of simply refusing to show up for work:

Currently, Democrats control 49 Senate seats — two short of the simple majority they would need to filibuster a Trump nominee. So how could they “technically” block the president’s pick? And even with all the outrage on the left, why are they still unlikely to do it?

Earlier this month, University of Miami political scientist Gregory Koger, a specialist in filibustering and legislative obstructionism, explained on Vox.com that, according to Article 1, Section 5 of the U.S. Constitution, “a majority … shall constitute a quorum to do business” in the Senate — meaning that Democrats can basically shut the place down by refusing to vote on anything.

With only the barest 51-vote majority — and one of their own, Arizona Sen. John McCain, on extended leave in Arizona as he grapples with what is likely to be terminal brain cancer — Republicans would have difficultly mustering a quorum without at least some Democratic help. “In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes,” Koger wrote, “so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.” If McCain doesn’t return, and all 49 Democrats refuse to participate, the 50 Republican senators left in Washington would fall one short of a quorum. (The Senate precedents on quorums do not mention whether Vice President Mike Pence could contribute a 51st vote.)

In that case, “the Senate can do nothing,” Koger concluded. “No bill can pass, no amendment can be decided on, no nominations can get approved.” The Senate would screech to a halt for lack of a quorum — and Democrats could conceivably delay a confirmation vote until a new Senate, perhaps with a narrow Democratic majority, is seated next January.

[…]

The fact that Democrats can shut down the Senate, however, doesn’t mean they will. “This would be a confrontational tactic,” Koger explained. “Confrontational” is probably too gentle a word for it. Obstructing a president’s Supreme Court pick by completely shutting down the Senate would require political winds that were blowing strongly in Senate Democrats’ favor. It’s not clear they are.

For one thing, 10 Democratic senators are running for reelection in states that Trump won in 2016, and Heidi Heitkamp of North Dakota, Joe Manchin of West Virginia, and Joe Donnelly of Indiana all voted to confirm Gorsuch. Would every one of these at-risk senators be willing to imperil their reelection chances by striking over Trump’s next nominee? Democrats can’t afford a single defection.

Politico has a short list from whom Kennedy’s likely replacement will be appointed – most of whom certainly appear qualified, though we all know this has much more to do with partisan politics than it does with legal qualifications.

One further point for despairing liberals, from conservative Marc Thiessen: it is by no means guaranteed that a Republican appointee will be as doctrinaire as they think.

…Trump will have to break the mold of his Republican predecessors. Over the past three decades, presidents from his party have picked seven justices, and several have turned out to be disappointments to conservatives. President Ronald Reagan picked three justices (Sandra Day O’Connor, Scalia and Kennedy), but only one, Scalia, was a consistent conservative. President George H.W. Bush picked one solid conservative (Clarence Thomas) and one (David Souter) who was not. George W. Bush did better, appointing two conservatives, Samuel A. Alito Jr. and John G. Roberts Jr. But even Roberts disappointed conservatives when he cast the deciding vote to uphold the Affordable Care Act in a stroke of judicial activism. If Trump picks not one, but two reliable conservative justices, he will secure the best record of Supreme Court appointments by any modern Republican president.

The new guy, like Gorsuch, likely will not be a Souter.  But I wouldn’t be surprised if Roberts provides Republicans with some unpleasant surprises in the coming years.

Why Kim K. went to the White House

Never change, New York Post:

Capture

It’s the kind of story that could only exist in the crazy year of 2018, but Kardashian’s visit was actually in the service of a noble cause:

The mother-of-three requested the White House meeting after hearing about the plight of Alice Marie Johnson on social media late last year.

“This is so unfair,” Kardashian tweeted in October 2017, along with a link to an interview Johnson, 63, did on Mic.com.

Sources told The Post that Kardashian argued that Johnson — a Memphis great-grandmother convicted of a drug conspiracy — had paid her debt to society after 21 years behind bars and deserves clemency.

The meeting went “well,” sources said, and now the decision is in Trump’s hands.

After the meeting, Kardashian headed to Ivanka and Jared’s DC home for a private dinner.

It was to be a continuation of the White House meeting, since Kushner is a passionate advocate for criminal justice reform after living through his father’s imprisonment.

Usually, liberals say they’re concerned about the United States having the highest incarceration rate in the world, but on Twitter their top priority is laughing at and mocking a much-maligned, vapid celebrity.  And also Kim Kardashian.

Actually, not just on Twitter.  Also CNN:

…one particular CNN reporter didn’t take this prison reform summit seriously.

During a panel discussion on both Trump and the White House’s reaction to the Roseanne Barr controversy, Acosta slammed the “lack of seriousness” coming from the president.

“Forget about the fact that Kim Kardashian is here at the White House today and what planet that is anything resembling normal because it’s not. She shouldn’t be here talking about prison reform. It’s very nice that she is here but that’s not a serious thing to have happen here at the White House.”

[…]

Besides the fact that Acosta never took issue with the countless celebrities that had visited the White House under President Obamaincluding Beyoncé and Jay ZGeorge ClooneyOprah WinfreyLin-Manuel MirandaBradley CooperRihanna, and Zach Galifianakis, Acosta seems to have forgotten about his own 2015 interview with singer John Legend.

Acosta sat down with the Grammy-winning artist and discussed his music, Black Lives Matter, and yes, prison reform, something Legend at the time was planning on meeting with Obama about. And Acosta was genuinely engaged with Legend during the interview and took him seriously not only as an entertainer but as a political thinker.

The same can’t be said about his treatment of Kim Kardashian.

So why the drastic attitude change?

If your argument is that Legend is some intellect singer-songwriter and Kardashian is some air-headed reality star, that misses the point. Look at what they have in common; they’re A-list celebrities with huge followings who have sincere passions that involve politics and in this case, both are using their celebrity status on prison reform. And despite her husband’s recent outspoken support for Trump, Kardashian and Legend backed Hillary Clinton during the 2016 election. Which begs the question why Acosta would take one seriously and not the other.

You know my feelings about Trump.  But if he can be President, why can’t Kim Kardashian help nudge the United States toward criminal justice reform?  It wouldn’t be crazier than everything else that’s happened these past few years.

Who decides for Alfie?

A truly heartbreaking medical-legal drama is playing out in Britain, where the parents of 23 month-old Alfie Evans refuse to let him die:

Alfie, admitted to Alder Hey Hospital in December 2016, was diagnosed with a neurodegenerative disease associated with severe epilepsy and has been in a semivegetative state for more than a year. During that time, he has been kept alive by artificial ventilation in the critical care unit.

“Alfie has received the full support of Alder Hey’s medical and nursing teams since being admitted,” the specialist children’s hospital said in a statement. “Sadly he has remained unresponsive to treatment and his condition has rapidly declined.”

Based on “extensive damage” in the child’s brain, the hospital recommended to the child’s parents that active treatment be stopped.

Disagreement between the hospital and his parents resulted in a referral of Alfie’s case to the Family Division of the UK High Court for a judge to rule on whether active treatment is in Alfie’s best interests.

[…]

…it was suggested that Alfie could be transported to Rome’s Bambino Gesu Pediatric Hospital, a Vatican hospital and the main pediatric hospital serving southern Italy, for treatment.

However, a subsequent visit to Alfie and consultation with his doctors led the Roman doctors to conclude that the child’s condition is irreversible and untreatable, according to a statement from Alder Hey.

Based in part on evidence supplied by the hospital, the supreme court dismissed Alfie’s case. High Court Justice Anthony Hayden rejected the plan to take Alfie to Rome and said the order to end Alfie’s life support should commence at 9 p.m. Monday.

As of this writing, Thursday evening, the little boy is still alive.

Unsurprisingly for such an emotional case, many members of “Alfie’s Army” have made threats against the hospital and its doctors, while some American conservatives are using the case to score points against “socialized medicine.” Would that they were so concerned about American children with pre-existing conditions, who were uninsurable until the Affordable Care Act (“Obamacare”) came along.

That said, the many problems with American health care don’t make this case any less disturbing. I could better understand the hospital’s position if they were being asked to use scarce resources to keep Alfie Evans alive indefinitely, but the Italians and the Vatican are willing to step in and take the case off their hands.

The parents’ right to decide their children’s medical treatment, even if based on deeply held religious convictions, is not absolute. But Alfie’s parents are choosing between an extremely faint hope and a situation where there is no hope at all.

Lenehan cleared

This was a) inevitable; b) legally correct; and, c) will not satisfy the mob.

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

[…]

In his March 2017 decision Lenehan said the Crown provided “absolutely no evidence on the issue of lack of consent.” The judge went on to add, “clearly, a drunk can consent.” That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, “The uses of ill-considered words by a judge in a decision can undermine the public’s confidence in the judiciary.” But “the test for judicial misconduct has not been met.”

In its decision, the three-member review committee cited Lenehan’s statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression “clearly, a drunk can consent” is “not an incorrect statement of the law.” Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically.

“[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge’s approach to bias,” the ruling states.

“This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants.”

The review committee noted that had Lenehan said “a drunken consent is a valid consent,” or “intoxicated person can nonetheless consent,” he would have made the same point without sounding personal or harsh.

There are certainly some cases where a judge’s behavior is so egregious that removal from the Bench is warranted.  (I’m looking at you, Robin Camp.)  But law professor Erwin Chemerinsky, commenting on an effort to recall a California judge who imposed a lenient sentence in a sexual assault case, warns against targeting judges who make unpopular decisions:

Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.

Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.

Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.  This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.

[…]

A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal.

But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.

A tattoo is not a legal document

According to a recent letter in the New England Journal of Medicinedoctors at Florida’s University of Miami Hospital had to decide whether an unconscious patient’s “Do Not Resuscitate” tattoo should be honored:

His anterior chest had a tattoo that read “Do Not Resuscitate,” accompanied by his presumed signature.  Because he presented without identification or family, the social work department was called to assist in contacting next of kin. All efforts at treating reversible causes of his decreased level of consciousness failed to produce a mental status adequate for discussing goals of care.

We initially decided not to honor the tattoo, invoking the principle of not choosing an irreversible path when faced with uncertainty. This decision left us conflicted owing to the patient’s extraordinary effort to make his presumed advance directive known; therefore, an ethics consultation was requested…

The doctors noted that “tattoos might represent permanent reminders of regretted decisions made while the person was intoxicated.”

a4N2OX3

A few too many Duff beers, and this could happen to you.

The decision was subsequently reversed, however, with an ethics consultant determining that if the guy went so far as to get a tattoo reading “Do Not Resuscitate,” he really meant it.  And it turned out that he had filed a written directive confirming these instructions:

After reviewing the patient’s case, the ethics consultants advised us to honor the patient’s do not resuscitate (DNR) tattoo. They suggested that it was most reasonable to infer that the tattoo expressed an authentic preference, that what might be seen as caution could also be seen as standing on ceremony, and that the law is sometimes not nimble enough to support patient-centered care and respect for patients’ best interests. A DNR order was written. Subsequently, the social work department obtained a copy of his Florida Department of Health “out-of-hospital” DNR order, which was consistent with the tattoo. The patient’s clinical status deteriorated throughout the night, and he died without undergoing cardiopulmonary respiration or advanced airway management.

The physicians conclude, “this case report neither supports nor opposes the use of tattoos to express end-of-life wishes when the person is incapacitated.”

My own suggestion is that you draft (or have a lawyer prepare for you) a personal directive setting forth your wishes regarding treatment should you become incapacitated, and/or appointing a substitute decision-maker.  And make sure your close friends and family know where it is and what it says.

Greenspan’s last words

Just hours before he passed away on Christmas Eve, Edward Greenspan, arguably Canada’s best-known criminal defence lawyer, submitted this critique of the Harper government’s “tough-on-crime” rhetoric (co-written with Anthony Doob) to the National Post:

“All convicted criminals belong behind bars.”

We know of no person knowledgeable about criminal justice in any democratic society who has ever proposed imprisonment for all convicted offenders. But earlier this month, Canada’s Public Safety Minister, Steven Blaney, who oversees our penitentiaries, bluntly told Parliament that “Our Conservative government believes that convicted criminals belong behind bars.” No qualifications, no exceptions.

An opposition MP understandably replied, “Mr. Speaker, that is scary to hear.” Scary? It’s more than scary. It is hard to imagine such a statement being made by someone who supposedly has knowledge about crime and the criminal justice system.

Consider this example: If we take the Public Safety Minister at his word, his government believes that all those guilty of driving with blood alcohol levels even slightly above the legal limit, not speeding and not involving an accident, belong behind bars: Go directly to jail, no need to consider anything else. Currently, only 8% of all offenders — and fewer than 2% of all young women — are imprisoned for this offence. Do the Tories propose locking up the 92% who are dealt with through other means?

[…]

Some believe that offenders learn from imprisonment that “crime does not pay.” This, too, is wrong. Published research — some of it Canadian and produced by the federal government — demonstrates that imprisonment, if anything, increases the likelihood of reoffending. For example, a recent study of 10,000 Florida inmates released from prison demonstrated that they were more likely subsequently to reoffend (47% reoffended in 3 years) than an almost perfectly equivalent group of offenders who were lucky enough to be sentenced to probation (37% reoffended).

Crime and punishment issues are far too complex and far too serious to allow the national debate to be dominated by dishonest platforms and slogans. False promises are often convincing. Whether those offering them are dishonest or ignorant matters little: Conservative crime policies will not make Canadians safer.

Slow justice is no justice

A New Brunswick judge has been “mildly chastised” by the Canadian Judicial Council for taking so long to render her decisions:

Court of Queen’s Bench Justice Paulette Garnett was the subject of a complaint by an unknown person to the judicial council last spring, a year after CBC News reported on several of her overdue decisions.

But she will face no disciplinary action for bogging down the judicial system, according to a decision released on Tuesday.

“The judge had been very late in issuing reasons in a number of cases,” the council said in a press release.

“Undue delays in rendering decisions can lessen public confidence in our justice system. … The judge has acknowledged that she needs to do better in future, She is working to ensure that this situation does not happen again.”

Garnett was appointed in 1998 and almost immediately began violating judicial council guidelines, which call for delivering judgments within six months of the conclusion of a hearing.

One of her first cases, a claim for back rent at the Bathurst Supermall made in August of 1998 wasn’t decided on for nearly 13 months.

That became a familiar pattern to lawyers and parties in her courtroom for years to come.

In 2005, she presided over a one-day hearing between Fredericton’s old Elm City Chrysler dealership, its owners and their bank to resolve questionable transactions. She delivered a decision two years and two months later.

In 2012, she took so long to decide whether employees of Fredericton’s Jones Masonry had properly unionized, Gordon Petrie, the company’s lawyer, eventually died.

That’ll show her.

(via @BobTarantino)