Catching Up

I’ve been very busy, so let’s catch up!

• I purchased a thoroughbred race horse on Saturday, a 4 year-old brown gelding named Major Danger. I claimed him out of an $8,000 claiming race at Charles Town Races and Slots for my trainer, David Walters. He’ll see the vet this week to make sure he’s in good shape and has the right medication, and then re-training of the horse will begin. With some luck, he’ll be healthy, sound, will train well, and we’ll enter him into his first race under my barn’s silks sometime in the next two or three weeks. I’ll post some pictures when we saddle him in a race for the first time.

• Ed and I had a successful trip to Lenox to claim my dad’s personal effects. We had a lot to do in a very short period of time, and it all went very smoothly.  Along the way, we took U.S. Route 7 through Connecticut’s Litchfield County. As a teenager, I used to visit New Milford almost every weekend to spend time with my Dad. He and his second wife had a weekend house in New Milford.  To the best of my recollection, I hadn’t been to New Milford in 17 years, so driving past it last week was very weird for me. Both my Dad and his second wife have passed, so there was no one to share the memories with.

• While on the trip, my Mom, Ed, and I visited Cassone’s Bakery in Port Chester, NY. I’m pretty sure I ate the most delicious Kaiser Roll I’ve ever tasted. Yummm!

• The Supreme Court of the United States will hear oral arguments tomorrow in U.S. v. Stevens, a fascinating 1st Amendment case which I am excited about. In 1999, a new federal law was enacted that, in part, made it illegal to sell pictures or videos depicting animal cruelty. The respondent, Robert Stevens, was arrested and convicted of violating that law when he marketed dog fighting videos. But the Federal Appeals Court for the 3rd Circuit overturned the conviction (en banc!) as a violation of the 1st Amendment’s enumerated right to free speech. This week’s argument pits the under-experienced Solicitor General, Elena Kagan, versus Patricia Millet of Akin Gump (the publishers of SCOTUSblog). Millet should clean her clock, but I’m rooting for the U.S. here. I think it’s perfectly acceptable for the federal government to pass a law that says you cannot sell videos depicting an illegal act. This case isn’t about dog fighting (although I would hope you wouldn’t argue dog fighting is anything but despicable and reprehensible), it’s about free speech. You can read a lot more about U.S. v. Stevens here.

A Word About Guns, the Law, and Mandatory Minimums

I try very hard not to post any political views on my blog. It’s not the purpose of this blog. But I wanted to say a few words about what’s happening to Plaxico Burress, the NFL wide receiver (formerly of the New York Giants).

The facts, briefly: Burress bought and registered a handgun in Florida. Florida has reciprocation in gun registrations with many other states. New York is not one of them. Burress possessed the handgun in New York while at a night club. The gun accidentally went off while in the elastic waist band of his sweat pants, and he suffered a bullet wound. He was indicted by a grand jury today for possessing a hand gun without a license in the State of New York. Officially, he was charged with two counts of criminal possession of a weapon in the second degree, and one count of reckless endangerment in the second degree. Sentencing guidelines require a judge to impose a sentence of no less than 3.5 years in prison if Burress is convicted on all charges.

This leads me to believe this case is another example where mandatory minimums can be a terrible idea. They take away the ability to apply common sense and reasoning to decision making. Burress made a mistake (some would argue a “stupid mistake”), but it’s of a bureaucratic nature. Had he known about the lack of reciprocity in the licensing, he would have registered the gun in NY and not have broken the law.  But since he didn’t know — since he was ignorant of the bureaucracy — he now faces a 3.5 year minimum jail sentence even though he neither caused nor intended harm to anyone or any thing. So the jury considering this case must now look at the non-disputed facts and determine, “do we find the defendant guilty of the crime which he admits to but will result in him being sent to jail for no less than 3.5 years? Or do we think 3.5 years is cruel punishment and doesn’t fit the crime committed, so we’re going to accept the ignorance of the law argument the defendant’s lawyer has made, and find him not guilty even though we know he’s guilty but because we don’t want to send this man to jail for 3.5+ years?” There’s an entire law library full of papers and books on the subject of mandatory minimums and their effectiveness, so I won’t say anything else except that I think this is a clear example where they are wrongly applied.

Separately, this episode also reinforces my opinion that athletes who carry around guns for protection are putting themselves at greater risk than if they didn’t carry a gun. I don’t dispute their Consitutionally-guaranteed right to own and carry a gun. I dispute the wisdom that a gun makes the athlete safer. If you own a gun and someone intends to do you harm, you have two choices: shoot or don’t shoot.  Since we don’t read about athletes regularly shooting people, but we do read regularly about athletes being in bad situations involving criminal elements (whether their own fault or not), I’m going to conclude logically that athletes don’t want to use their guns to shoot criminals. So they shouldn’t carry them around “for protection” in the first place.

Finally, I conclude that if anyone’s ever in trouble with the law in NYC, the last lawyer they should use is Burress’s lawyer, Benjamin Brafman. One of the biggest advantages to having a good lawyer is leveraging his or her ability to “deal” with the prosecutors. Personal relationships between your lawyer and the prosecutors can be very helpful to you, and at the very least, your lawyer should be able to comport himself in such a way that the prosecutor is dissuaded from “throwing the book at you”. Brafman clearly handled this entire situation wrong, as his actions have now caused NYC DA-for-life Robert Morgenthau to make Burress the poster child for weapons possession laws. A more effective lawyer would have made this go away quietly.

SCOTUS Finally Releases Opinion on Safford United School District #1 v Redding

A few minutes ago, the Supreme Court of the United States handed down its big “social issue” ruling of OT08. I almost nailed it, predicting both the outcome and predicting exactly what Justice Thomas would write. I equivocated a bit, so I’m not going to give myself credit for fully nailing it.

The short of it is a school administration suspected a female student of having on her person perscription ibuprofen, which they had heard she was giving or selling to other kids. When called into the office, they found 4 pills in her belongings. They took her to the nurse’s office and had a female nurse remove and search her outer clothing, but then made her shake out her bra (briefly exposing her breasts) and open her underwear for inspection (exposing her pelvis area).

The parents sued, claiming unreasonable search under the 4th Amendment.

Today’s ruling is complex (because the specific petition has 3 major elements), but the one we care most about is the Court’s 8-1 ruling that the part of the search involving her bra and panties was unconstitutional. The majority opined that due to “societal expectations of personal privacy”, such a search can only be conducted when there is clear and compelling evidence that both contraband can be found in the private areas and that the pills posed a serious danger to other students due to their potency.

Indeed, I think it’s somewhat common sensical to ask bewilderedly, “they suspected her of carrying ibuprofen so they strip searched her???”  And the Court clearly asked themselves that question and decided, like many of us, “no way”.

What complicates the issue — and thus, to me, makes it interesting – is Justice Thomas’s dissent. He makes one point that underwear is a pretty reasonable place to expect to find hidden drugs:

The majority finds that “subjective and reasonable societal expectations of personal privacy support . . . treat[ing]” this type of search, which it labels a “stripsearch,” as “categorically distinct, requiring distinct ele-ments of justification on the part of school authorities for going beyond a search of clothing and belongings.” Ante, at 8.2 Thus, in the majority’s view, although the school officials had reasonable suspicion to believe that Redding had the pills on her person, see ante, at 7, they needed some greater level of particularized suspicion to conduct this “strip search.” There is no support for this contortion of the Fourth Amendment.

It’s hard to argue with him on that point. In speaking to the requirement that the drugs pose a significant danger to the other students, Thomas argues:

Each of these additional requirements is an unjustifiable departure from bedrock Fourth Amendment law in theschool setting, where this Court has heretofore read theFourth Amendment to grant considerable leeway to school officials. Because the school officials searched in a loca-tion where the pills could have been hidden, the search was reasonable in scope

Finally, his main point is something he’s been consistent on over the years. Thomas believes school administrators must enjoy significant qualified immunity under the law in order to maintain order, discipline, and lawfulness.

For nearly 25 years this Court has understood that “[m]aintaining order in the classroom has never been easy, but in more recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems.” Ibid. In schools, “[e]vents calling for discipline are frequent occurrences and some-times require immediate, effective action.” Goss v. Lopez, 419 U. S. 565, 580 (1975); see also T. L. O., 469 U. S., at 340 (explaining that schools have a “legitimate need tomaintain an environment in which learning can take place”). For this reason, school officials retain broad authority to protect students and preserve “order and a proper educational environment” under the Fourth Amendment.

Thomas had this same argument (and indeed, quotes the text many times) in last year’s “Bong Hits 4 Jesus” case, Morse v Frederick, in which the Court re-asserted that students have limited 1st Amendment rights.

In the end, I agree with the majority that the strip search was unreasonable, and I agree with Justice Thomas that school administrators should continue to enjoy broad qualified immunity.  It’s finding the balance that makes life difficult for administrators and jurists in an age of increased non-conformity and bad behavior in our nation’s schools.

Random Thoughts Ahead of the Weekend

• Clint Eastwood’s, “Gran Torino” got shut out of all the major Oscar categories, which comes as a surprise to me. I thought it would get a nod, and possibly win, for Best Picture, Best Actor, and Best Director. I have not yet seen, “Slumdog Millionaire”, so I will hold off on any Best Picture predictions, but I will be rooting for, “The Curious Case of Benjamin Button”. 

• One of American Idol’s broadcasts this week was from Churchill Downs in Louisville, Kentucky. It was cool seeing them at the track like that. Saratoga is still the only place I really want to go, but it might be neat to visit Churchill Downs one day. 

• There has been a lot of news about Christie’s planned auction of “the biggest art collection ever” (no, not really, but hype is good in the fine art world right now), the collection of the late Yves St. Laurent, currently planned for February 23rd.  The latest news, according to to the Times of London, has the Chinese government suing Christie’s to block the sale of two pieces in the collection, a set of animals heads dating to the 1700s worth around $30 million.

• I was up late last night and watching ABC’s overnight network news cast at 3 or 4 in the morning. I found one of these pieces really interesting. It was a commentary on Obama’s first few days in office, and how, during the signing of executive orders in front of the media, he did not just sign the orders. He took the time to read some of the important clauses in the order, then explain what the effects of the order to the gathered press.  He was educating everyone, in a smart but plainspoken manner. I looked around and was able to find the 5-minute video story on ABC News’s website.

• Tom Ricketts, whose father founded Ameritrade, has been selected as the winning bidder for the Chicago Cubs. For some of us, this is a blow as we had been rooting for Mark Cuban, the spirited, emotional, involved owner of the Dallas Mavericks (and IU alum). Cuban, by some reports, turned out to be too controversial a figure to be allowed into the old boys’ club that is MLB.

• I have not commented much about Obama’s choice to nominate Harvard Law School Dean Elena Kagan to be the next Solicitor General of the United States because I have mixed feelings about it.  It is good that a woman is finally getting be the SG.  But I am a bit shy about her courtroom credentials.  The Legal Times reports she was an excellent law clerk for Abner Mikva and a stand-out associate at Williams and Connolly in the late 1980s, but that is the extent of her practical experience.  She has been in the halls of academia for almost 20 years now, and I am uncomfortable predicting how well that will translate to the role of SG. Chief Justice John Roberts and Paul Clement, both former SGs, stood out due to their awe inspiring ability to argue clearly and effectively, well beyond the talents of even long time superstar SCOTUS solicitors. I had expected Gregory Garre might get a chance to be SG, but presumably he must have (or be perceived as having) a conservative lean. I am not happy that the SG is considered a political position; I am fine with the President nominating the position, but I wish it were less on ideological lines and more on effectiveness as a litigator.

• I head to Charles Town Races & Slots tomorrow for the first time in about 3 weeks.  I am looking forward to the Sunshine Millions, $3.5 million worth of purses to be run at Gulfstream Park and Santa Anita.  I am planning on spending the rest of the day today handicapping the Sunshine Millions races.

On the Judiciary

Thirteen years ago today, on October 3, 1995, a jury of his peers in Los Angeles County found defendant Orenthal James Simpson not guilty of the murders of Nicole Brown-Simpson and Ronald Goldman. I will never forget that day, as it was one of the most polarizing days of my lifetime. America was divided in our reaction that day, mostly along racial lines. Regardless of its outcome, the Simpson trial was, unarguably, a low point in the history of American jurisprudence.

But each year, on the first Monday in October, the judicial calender is reset. The Supreme Court of the United States of America is called into session and so begins 10 months of hard work for the Justices. This year the most notable change at the Court is in the Solicitor General’s office.  For the past three terms, the Solicitor General of the United States was the exceptionally capable Paul Clement.  General Clement resigned this summer to return to private practice and academia. Though I too rarely found myself siding with the Government’s views in cases he argued, his briefs and oral arguments were notable for their incisiveness and high rhetoric. He had a comfortable rapport with the Justices (especially Chief Justice John Roberts, a former star in the Solicitor General’s office and a contemporary of Clements) which I think will be missed. 

The new Solicitor General of the United States (responsible for speaking on behalf of the United States Government in cases where the State is the petitioner, the respondent, or simply articulating the views of the Government as a non-party to a case before the Court) is Gregory Garre who has been in the Office since 2000 and served as Clements’ deputy. Reading transcripts of Court cases the past two years, I was always struck by how similar Garre’s style was to both Clements and Roberts. I have no doubt he will capably represent the views of the United States and continue the tradition of excellence in jurisprudence represented by the Office of the Solicitor General.