This Attorney’s Thoughts on the Second Presidential Debate

In Sunday night’s debate, Donald Trump attacked Hillary Clinton for defending an alleged child rapist. He apparently believes that being a criminal defense attorney disqualifies a person for higher office.

Putting aside the facts of her representation (she was assigned to handle the case, and she worked out a plea to lesser charge, read about it here on snopes.com), Trump’s statement displays a lack of understanding about our legal system.

To put it bluntly: defense attorneys are not defendants. Our role is to zealously represent our clients and to provide them with a defense. Our system of justice depends on it.

Our country was founded on a shared mistrust of government power. That is why we have divided government. Our founders were concerned by the power of the state to imprison or execute people. They did not want this power to go unchecked. It is why we have an adversary legal system, that gives defendants Constitutional rights to know the charges against them, face their accusers and cross-examine them. We enshrined in our Constitution the rights against being forced to testify against oneself, being tried twice for the same crime and to a trial by a jury of our peers.

Defense attorneys are a last line of defense, protecting personal liberty. We are the ones challenging increasing power of the state and maintaining rights to privacy and personal integrity. We challenge illegal searches and seizures, false evidence, improper scientific methods and the use of torture or other coercive methods to obtain confessions.

When we put on a defense, we are making the state prove their case. We are testing their evidence, questioning the credibility of their witnesses, the accuracy of their science. As it should be. Otherwise we would be living in a police state or worse.

As someone who is and has been the subject of numerous lawsuits, Mr. Trump should be aware of this.

So when Trump attacked Clinton for defending an accused rapist, he is attacking our carefully balanced system of justice that, whatever problems it may have, is still a model for the world.

I have represented accused murderers, rapists, burglars, thieves, drug dealers and a lot of drunk drivers. Some of them were guilty, some were not. Sometimes the truth was elusive. Sometimes the truth was in between. Many of the accused are otherwise good people. I have represented police officers, fire fighters, veterans, doctors, lawyers, business people, school teachers, postal workers, you name it. Does that fact that I have represented these people mean that I have bad judgment or am incapable of holding political office? I think not.

While I am on the subject of the debate, there were two other things that bothered me.

Donald Trump said that when he becomes president, he would appoint an Attorney General who would prosecute and jail Hillary Clinton for her emails. Again, putting aside that FBI Director Komie said that “no reasonable prosecutor” would indict her for this, Mr. Trump’s statement again shows a fundamental ignorance about our justice system.

The Attorney General is of course appointed by the President, and therefore, is to an extent, is a political office. They will (generally) reflect their president’s priorities. Obviously, Loretta Lynch is more likely to prosecute civil rights violations than say, John Ashcroft was. And John Ashcroft was more likely to seek tougher sentences on low level drug offenders than Loretta Lynch.

Having said that, the role of the Attorney General, like any prosecutor, is to use his or her independent judgment when bringing forth prosecutions, based on evidence and supported by probable cause. So for example, while the DOJ under Obama investigated into George Zimmerman’s shooting of Trayvon Martin, it ultimately decided that there was insufficient evidence to support a civil rights violation charge and no federal prosecution was brought. If it was solely a political office, this would not be the case.

What Trump proposed is the opposite of that. It is improper for an Attorney General to go after political enemies. In fact, doing exactly this was the basis of one of the articles of impeachment that was drafted against President Richard Nixon.

Finally, I’d like to address the Supreme Court vacancy. As to this topic, I am critical of both candidates. During an earlier Republican debate, held the weekend of Justice Scalia’s death, Mr. Trump said that Republican’s should “delay, delay, delay” President Obama’s nominee. That was before President Obama had a nominee. This obstruction has lead to two terms of Supreme Court deadlocks and further politicization of the Supreme Court, which any prospective government leader should understand is intolerable and damaging to our judicial system.

As to Ms. Clinton: when asked what considerations she would take in naming a nominee, she indicated that trial experience would be desirable, which is something that I, as a trial lawyer, appreciate. However, she also listed several cases that she wanted upheld or overturned (Citizen’s United, Obergefell and Roe v. Wade). I do not believe that it is appropriate for a President to have a litmus test for Supreme Court nominees. Indeed, her husband, President Bill Clinton claimed not to have had a litmus test when he nominated Judges Ruth Bader Ginsburg and Stephen Breyer to the Supreme Court. Having a litmus test for judges is problematic in the same way that having one for attorney generals is. It breaks down the separation of powers and destroys independent reasoning and judgment.

In my humble opinion, a President should be looking to appoint the best possible legal minds to the bench, and not appoint someone to uphold or reverse a particular ruling. A Supreme Court Justice will rule on thousands of cases during his or her tenure and it is far more important that we have sound legal reasoning in all of those cases than a preferred result in one or two of them.

Your thoughts?

U.S. Supreme Court to determine whether states can criminalize DUI test refusals

In Illinois, the only consequence for a DUI suspect who refuses to take a blood, breath or urine is a license suspension which is longer than the suspension he or she would receive had he or she taken and “failed” the test (and there is no suspension for someone who “passes” the test).

However, thirteen states make it an additional crime for a person to refuse such a test.  The Minnesota law was recently struck down but the case, and two others, have been taken up by the United States Supreme Court.

From SCOTUSblog:

In a move that could have a nationwide effect on the roadside actions of police officers, the Supreme Court agreed on Friday to decide whether a blood or breath test for drunk driving can be made without a search warrant and whether, if there is no warrant, an individual can be charged with a crime for refusing to take such a test.  The Justices took on three cases raising the issue: two from North Dakota and one from Minnesota.  Thirteen states make it a crime to refuse to take a drunk-driving test….

The drunk-driving cases provide the Court with something of a sequel to its ruling in 2013 in Missouri v. McNeely, which left the clear impression that, if police have enough time, they should get a warrant before taking a test of a suspected drunk driver.  The Court ruled that the natural dissipation of alcohol in the bloodstream does not always amount to an emergency situation that permits a DUI test without a warrant.

In North Dakota, state laws bars a person from driving in the state if he or she refuses to submit to a chemical test, of blood, breath or urine, to determine alcohol concentration.  It makes refusal to take such a test open to prosecution for a crime that carries the same punishment as a conviction for drunk-driving.   In Minnesota, state law makes it a crime to refuse an officer’s request to take a chemical test for alcohol in the blood, if the individual has been validly arrested for drunk driving.  The cases to be reviewed by the Court involve either a blood or breath test.

Lawyers for the three men involved in the appeals said that the issues they were raising were coming up more frequently in the wake of the McNeely decision.  And they argued that the decisions by the state supreme courts in these cases conflict with the McNeely ruling.  The Supreme Court, at its private Conference on Friday, considered thirteen cases on these issues, and chose the three from that list — all filed by the same attorneys.

The three apparently were chosen because they involve different legal scenarios: in two of the cases, the individuals were convicted for declining to take a test — one a blood test, the other a breath test. In the third case, the individual was convicted of drunk driving after he refused field sobriety tests and then was taken to a hospital for a blood test against his wishes.  The Court will be reviewing that individual’s punishment for refusing the field tests — a two-year suspension of his driver’s license — instead of the jail time and fine he got for the drunk-driving conviction.

The three cases to be reviewed are Birchfield v. North Dakota, Bernard v. Minnesota, and Beylund v. North Dakota.  The three will be consolidated, and will be heard together at a one-hour hearing.

Recommended Listening: Amicus podcast

I just wanted to share a new podcast called Amicus from Slate magazine.  The first episode was just released.

The podcast is hosted by Dahlia Lithwick and will concentrate on the United States Supreme Court.  In the first episode, there is a discussion of the Court’s denial of cert in the gay marriage cases, and a case about that raises the issue of whether an Arkansas prisoner has a religious right to grow a beard 1/2 inch in length.

Here is a link to the podcast on the Slate website, or you can download it in itunes or the other places where you get your podcasts.