Thursday, November 12, 2015

I Apologize, John Henry

In early 1983 I was a 23 years old law school student. My brother, Lee, who was then a sophomore at Sam Houston State University called in January of that year saying he had scored an interview with John Henry Faulk for a political science research paper he was writing.

He asked if I wanted to come along for the interview. Of course I said yes.

Many reading this may not recognize the name John Henry Faulk, but in the mid to late 20th century, he was a sort of legend, particularly among liberals of a certain age and stripe. Hard as it may be to imagine, think along the lines of a southern, liberal, Bill O'Rielly.

I had been negatively editorializing to my brother about Faulk for years. Faulk bothered my conservative, younger self because he would seem to materialize out of thin air on network television. It always seemed to be CBS. When they needed sardonic comment on conservative economic or social policy, Faulk seemed always there to oblige.

Faulk had been blacklisted from, ironically, CBS, in the 1950s, later writing a book about the experience, and his lawsuit for being libeled, titled appropriately, Fear on Trial. The book had been a bestseller in the 1960s, but I thought it strange that someone appearing as a regular on the 1970s parody-of-itself television show Hew Haw would be giving serious commentary to policy matters, especially anything Ronald Reagan. Most of all, I disliked his one foot on a stool, kick back, folksy delivery.

Faulk had decided in early 1983, almost out of nowhere, to run for Congress against Phil Gramm. Gramm, who had run and had been elected to Congress as a Democrat, had been repudiated by the party for his conservative voting record. He resigned his 6th Congressional seat, which before it was gerrymandered out, included Bryan/College Station, to run as a Republican in a special election. .

I was all about Phil Gramm in those days. I admired his free market approach to just about everything. From my myopic white, upper middle class point of view racial and social problems were better dealt with by markets than through government intervention and regulation. Gramm fed into my then world view. I loved that Gramm had a Ph.D. in Economics, yet spoke in a Georgia drawl. At the time I thought he could, and should, someday be President.

Well, John Henry, I was wrong. Real wrong. About Phil Gramm, about you, about most everything.

My brother called Gramm, and been told by some minion's minion that Gramm could not see him, but to my bother's surprise, Faulk said yes. Hence the call to me. I cut class and drove to Bryan for the interview. Ironic that I now have practiced law there for almost 30 years.

My brother took out a bulky tape recorder, pushed record, and we started. We peppered Faulk with  supply side economic questions he deftly parried.  I asked him about Joseph McCarthy (he hated him) and at length whether as a matter of policy he thought the Great Society programs of Lyndon Johnson a failure (he did not).

I would give almost anything for my brother to have kept that cassette.

Faulk thought Gramm an opportunist. Through the haze of time, I think Faulk ran because he knew Gramm would never had resigned and a special election called unless Gramm knew he would most certainly win. I think he knew Gramm had sights much higher than the 6th Congressional. I believe Faulk knew even without his entry in the race the two other Democrats on the ballot, Chet Edwards and Dan Kubiak, would split the Democratic vote. Faulk ran because he wanted to call Gramm out in a way he knew neither Kubiak or Edwards could.

John Henry Faulk was a well educated man. A protege of J. Frank Dobie, a friend of Edward R. Murrow and Louis Nizer. A man who knew the evils of the Jim Crow segregation laws and spoke up against it at a time when there was real danger in doing so. A man who stood up to a world class bully like Roy Cohn when, again, there was real danger, and won. I think back and wonder how he must have felt with the boy I was asking him about things of which he knew so much and about which I knew so little.

John Henry Faulk's New York Times obituary is here. Although it contains much of the information linked above, the respect The Gray Lady shows him is palpable.

After about an hour, we finished and I drove back to Houston convinced I knew it all.

Well, I guess some things do not change.

Sunday, November 8, 2015

30 Years a Lawyer

Today, I have been a licensed attorney in Texas for 30 years. It is hard to get my arms around the fact I have been a lawyer more than half my life.

It has been an unusual journey. Although there are many criminal defense lawyers who never prosecuted - as is the case with me -  it has been a much more circuitous route to the place I now occupy than for most.

When I was licensed on November 8, 1985, Ronald Reagan was President of the United States. Except for those 3 years at the beginning of my licensure, the only President not named either Clinton or Bush currently occupies that office. I am not sure I how I feel about the possibility when I am 40 years a lawyer, the very same statement could be true.

On that date, Warren Burger was Chief Justice of the United States Supreme Court and Justices William Brennan and Thurgood Marshall, all now long passed, were still on the Court. Justice Brennan had been nominated by President Dwight Eisenhower. Writing that sentence makes me feel especially old.

I have lately resolved to refrain from war stories, but there are many because of the different areas of law I practiced before finding a home in criminal defense. Real estate home mortgages, sitting through hundreds of depositions with refinery workers in asbestosis civil litigation, and working for a law firm closing failing Saving and Loan Associations, just to name a few.

All those things before I took on my first criminal client.

In 30 years I have tried civil cases to juries involving disputes as different as who owned a horse to responsibility and damages in multi-party death cases. I have picked juries in places as different as Houston, Texas and Houston County, Texas.

As a criminal defense lawyer, the entire spectrum have been tried to juries - Public Intoxication to Capital Murder - Death.

I have regrets and triumphs. In short, it has been quite an adventure.

Many people have left their imprint in these 30 years. Clients, lawyers, and people who for ill or for good inspired me to try and be a better lawyer.

Thanks to all.

Sunday, November 1, 2015

The End Of The Peremptory Strike?

Oral arguments are tomorrow in Foster v. Chatman, a case involving legal issues of race and the use of peremptory challenges (or "strikes"). When the Supreme Court of the United States (SCOTUS) originally agreed to take the case I was excited. As I have read the briefing on the case, I have now come to the conclusion Foster encapsulates most of racial shortcomings of the American criminal justice system.

Let us start with the race based jury selection basics. In 1986 SCOTUS decided a case, Batson v. Kentucky standing for the proposition that the Federal Constitution (14th Amendment Equal Protection Clause) forbids states from using strikes based on race in criminal jury selection. Batson started a process known a "Batson challenge" when a defendant contends a juror was struck because of race. It is a 3 step process which ends, essentially, with the State having to provide the trial judge a "race neutral" reason for the strike.

This process has led to all sorts of problems in process. They seem to all be present in Foster. Again, knowing relevant facts about the specific case give proper context: The victim was Queen Madge White, a 79-year-old widow and retired elementary school teacher. There is no real dispute she was brutally killed by Foster. Queen Madge White, the victim, was white, Timothy Tyrone Foster, who took her life, African American.

At his Georgia capital murder trial in 1986 - yes this case is 30 years old -  the State used 4 of it's 9 peremptory strikes to eliminate all the African Americans on the jury panel. The jury that was ultimately selected was all white and sentenced Foster to death.

A quarter century later the prosecution notes, unavailable at trial to the defense, revealed African Americans were designated B1-B3, and highlighted in green, There were also notes prioritizing the African Americans on the jury panel in the event the State was forced into having to accept one on the jury. There is more, but you all get the drift.

When called upon at the original trial to give race neutral reasons for the strikes, the State prosecutors gave sufficient reasons for the trial judge to deny the defense Batson challenge. The information above related to the highlighting, designation of African American jury panel members and the priority list only came after a public records request.

In the briefing at SCOTUS, the State has used essentially the same arguments that the Supreme Court of Georgia found persuasive in denying Foster a new trial: The Batson decision itself was only months old when Foster's original trial began, and the State was preparing for what it knew would be a challenge to exclusion of any African Americans from the jury. Their designation of African American jurors was a precautionary measure to ensure they had them identified in light of the challenges they knew would be made by the defense.

Dahlia Lithwick's Slate podcast Amicus has an excellent discussion about the case, featuring Stephen Bright who will argue the case for Foster and Glenn Ivey who, along with a group of former prosecutors, including the author of the acclaimed novel "Presumed Innocent," Scott Turow, filed an amicus brief supporting Foster. The following sentence contained in their Amicus Brief was emphasized in the podcast:
Failing to find purposeful discrimination under these extreme circumstances would strip Batson of its meaning. 
I don't know. After listening, particularly to Ivey, a system like ours will inherently encourage discrimination. In fact, but for the newness of Batson at the time of Foster's original jury selection, it could be jadedly and cynically argued the biggest mistake the Georgia prosecutors made was leaving a paper trial.

After listening to the podcast, and reading the briefing in Foster, I went back and read Justice Thurgood Marshall's concurrence in Batson. It turns out his skepticism of the Batson challenge process (Marshall was the only member of SCOTUS at that time to be a former trial lawyer) was prescient:
The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.
Twenty years later, in 2005, still sitting Justice Stephen Breyer echoed Justice Marshall's skepticism in Miller El v. Dretke:
In [Batson], the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court’s rule would not achieve its goal. The only way to 'end the racial discrimination that peremptories inject into the jury-selection process,' he concluded, was to 'eliminat[e] peremptory challenges entirely.' Today’s case reinforces Justice Marshall’s concerns. (citations omitted).
Lithwick's Amicus podcast listed the many ways prosecutors and defense lawyers haver resisted ending the use of peremptory strikes. I have long counted myself among those so resisting. The podcast also pointed out how trial level judges who deal with prosecutors every day in their courts are reluctant to make the findings required by Batson that not only did those prosecutors engage in purposeful racial discrimination, but then tried to cover it up with a fabricated race neutral reason.

I have made many Batson challenges. A few have been granted, many more denied. It was plain in each the judge was anguished about having to make the finding.

For those who do not really care how the death penalty decision was reached, consider this: It is not just about Timothy Tyrone Foster. Instead, it is about every African American, Hispanic, Jewish and other civic minded ethnic jury panel member who shows up for for jury service and then is denied that right for no other reason than their ethnicity. That is why the best remedy for a Batson violation is not mistrial - it is to replace the last juror selected with the minority panel member improperly struck.

I understand that eliminating peremptory strikes would bring about their own practice and process problems. instead of strikes the battleground would move to disenfranchisement of minority jurors and disqualification of jury eligibility based on criminal record. I have, however, come around to thinking Justices Marshall and Breyer may be right.

I will be listening closely tomorrow.