An Unconstitutional War? A Primer and A Question: Should Lawyers Speak Out?

For all the talk about the U.S. response to ISIS, including criticism of the Obama administration’s strategy or alleged lack thereof, there is very little mention of the fact that the war on ISIS is most likely unconstitutional. Trevor Timm of The Guardain has written an excellent opinion piece entitled, “President Obama’s speech reminded Americans that the war with ISIS is still illegal.” If you are interested in an introduction to the issue, Timm’s op ed piece is a good place to start. His piece includes links to the opinions of constitutional scholars across the political spectrum, to an article about Connecticut Senator Chris Murphy who has called for Congressional action, and to an outline of proposed war resolution against ISIS.

After the attacks in Paris the British Parliament, following a vigorous debate, voted to commence air strikes on ISIS. Why do President Obama and the Congress refuse to address the issue of the war’s constitutionality? What are the consequences of their refusal? As Timm notes:

But any decision – or indecision– could have significant consequences beyond 2016: Republican front runner Donald Trump has boasted he would “bomb the shit out of Isis” and, disturbingly, said the US military should kill their families as well. Ted Cruz bragged he would “carpet bomb” the Middle East. And, if you take away the rhetorical flourishes, it’s hard to tell how Hillary Clinton’s policy on Isis is any less hawkish than the Republicans.

There is no more important constitutional decision than the decision to go to war. In the absence of Congressional action, there is a serious risk that the executive branch will engage in military actions that the country does not support. It is hard to imagine prosecuting, much less winning, a war that a majority of the country does not support. And yet here we are arguably at war without Congressional authorization. Where are the leaders? For political reasons are they hiding? The British Parliament had the leadership and the courage to debate and decide. What does it say about our government that it does not?

Do lawyers have a professional opportunity to speak out about this issue? The Preamble to Connecticut’s Rules of Professional Conduct provide in part:

As a public citizen, a lawyer should seek
improvement of the law, access to the legal system,
the administration of justice and the quality
of service rendered by the legal profession.

One could argue that because of the reluctance of the President and Congress to put the war issue before Congress, the public is being denied access to the legal system for deciding questions of war and peace, and that lawyers should seek improvement of the law and access to the legal system by speaking out about the need for Congressional action. As it is, it appears that electoral politics, the desire not to expose oneself to the risk of being defeated at the polls, is deemed to be of greater significance than the Constitutional command that Congress debate and act on the question of whether the United States should be at war in the Middle East. Lawyers may wish to consider raising this issue in their communities, explaining the role that Congress ought to be playing and the consequences of its failure to do so.

For Criminal Defense Lawyers … and anyone else who cares about or is curious about the criminal justice system

Note: (h/t: Legal Ethics Forum. see post by John Steele on Nov. 20, 2015 at 10:01am)

Judge Alex Kozinski has written an interesting, provocative and worrisome law review article that raises serious doubts about the fundamental fairness of the criminal justice process.See Preface  Criminal Law 2.0  44 GEO. L.J. ANN. REV. CRIM. PROC (2015). One can get a sense of what the article is about from its first sentence: “Although we pretend otherwise, much of what we do in the law is guesswork.” Judge Kozinski discusses and raises serious questions about some “facts” that are taken for granted in the criminal justice system, including:

  1. Eyewitnesses are highly reliable.
  2. Fingerprint evidence is foolproof.
  3. Other types of forensic evidence are scientifically proven and therefore infallible,.
  4. DNA evidence is infallible.
  5. Human memories are reliable.
  6. Confessions are infallible because innocent people never confess.
  7. Juries follow instructions.
  8. Prosecutors play fair.
  9. The prosecution is at a substantial disadvantage because it must prove its case beyond a reasonable doubt.
  10. Police are objective in their investigations.
  11. Guilty pleas are conclusive proof of guilt.
  12. Long sentences deter crime.

Judge Kozinski also makes proposals intended to spark discussion and debate about the following topics:

  1. Juries
    1. Give jurors a written copy of the jury instructions.
    2. Allow jurors to take notes during trial and provide them with a full trial transcript.
    3. Allow jurors to discuss the case while the trial is ongoing.
    4. Allow jurors to ask questions during the trial.
    5. Tell jurors up-front what’s at stake in the case.
    6. Give jurors a say in sentencing.
  2. Prosecutors
    1. Require open file discovery.
    2. Adopt standardized, rigorous procedures for dealing with the government’s
      disclosure obligations.
    3. Adopt standardized, rigorous procedures for eyewitness identification
    4. Video record all suspect interrogations
    5. Impose strict limits on the use of jailhouse informants.
    6. Adopt rigorous, uniform procedures for certifying expert witnesses and
      preserving the integrity of the testing process.
    7. Keep adding conviction integrity units.
    8. Establish independent Prosecutorial Integrity Units.
  3. Judges
    1. Enter Brady compliance orders in every criminal case.
    2. Engage in a Brady colloquy.
    3. Adopt local rules that require the government to comply with its discovery
      obligations without the need for motions by the defense.
    4. Condition the admission of expert evidence in criminal cases on the presentation of a proper Daubert showing.
    5. When prosecutors misbehave, don’t keep it a secret.
  4. Miscellaneous
    1. Abandon judicial elections
    2. Abrogate absolute prosecutorial immunity.
    3. Repeal AEDPA § 2254(d).
    4. Treat prosecutorial misconduct as a civil rights violation.
    5. Give criminal defendants the choice of a jury or bench trial.
    6. Conduct in depth studies of exonerations.
    7. Repeal three felonies a day for three years.

Because Judge Kozinski makes reference to cases in which the Department of Justice hid evidence – for example see United States v. Stevens,No. 08-cr-231 (EGS), 2009 WL 6525926 (D.D.C. Apr. 7, 2009) – the DOJ wrote a response to Judge Kozinski’s article. For a copy of the DOJ response, click here. (h/t: Above the Law)

For a chilling book about prosecutorial misconduct see “Not Guilty: The Unlawful Trial of U.S. Senator Ted Stevens,” by Rob Cary. Mr. Cary, along with Brendan Sullivan and others at William & Connolly, represented Senator Stevens.

Law schools: The President suggests a way to increase the value, relative to cost, of a legal education

It is no secret that law schools across the country are searching for ways to be of greater value in a highly competitive job market. Recently, President Obama suggested one way for law schools to do that: do less. Specifically, as reported by the Economist (August 31 – September 6, 2013 issue – North America edition – at page 24, the President said “This is probably controversial to say, but what the heck.” ..”[L]aw schools would probably be wise to think about two years instead of three.”

There is an old saying about law school.  The first year they scare you to death. The second year they work you to death. And the third year they bore you to death. To the extent there is some truth in that saying the price of the third year is far too high and it should be dropped.

The legal profession, including law schools, is on a forced march to create value and to make clear to clients (and to prospective students) that legal services, including legal education (which must teach more about rendering legal services), are worth the investment. Perhaps the President is on to something when he suggests that law schools create greater value by charging less and and spending less time before granting a degree.  Might the same concept apply to law firms? It is always a challenge to know when enough is enough in terms of time spent on a client matter. Past a certain point clients won’t pay. But before a certain point one can not do a first rate professional job. Law schools need to focus on teaching students how to render legal services efficiently on a cost effective basis. If law school graduates entered the marketplace as engines of efficiency, including using technology effectively, they would be of value to firms that have clients but that may not have cutting-edge knowledge of how to serve their clients most efficiently. The focus must be on creating value for clients. The rest is a waste of time and money.

Supreme Court Briefs available online: a valuable and possibly enjoyable resource

That briefs filed with the Connecticut Supreme Court are available online is not breaking news.  As a result of a cooperative arrangement between the Judicial Branch and the Appellate Advocacy Committee, beginning with the 2008 Term Supreme Court briefs are available online at a site named Supreme Court Briefs Online.  The title of the site itself offers a valuable lesson to lawyers who write to persuade:  there are no wasted words; every word counts (H/T Strunk & White, The Elements of Style.)

The site contains a clear explanation of how easy it is to find Supreme Court briefs by using the search   The description is fine as far as it goes.  But one search option, which works according to my recent tests, is to search by author.  So, for example, if one wanted to find a brief written or co-written by one of the most well known appellate advocates in Connecticut, all one need do is type in his or her last name into the search bar and voila!  Why does this matter?  Well, there is always room to improve one’s advocacy oral and written.  Thanks to the Appelate Advocacy’s Committee and the Judicial Department, a first rate resource for lawyers who want to learn and to improve is available online for free.  Try it out.  Enjoy.  By the way, the briefs I’m especially looking forward to reading – not yet available – are in the case of Simms v. Seaman.  For earlier, not particularly enlightening posts about Simms v. Seaman, click here and here.

The work of the Appellate Advocacy Committee in makng Supreme Court briefs available online is another example of lawyers contributing their time and expertise on a pro bono basis to better the profession.  All lawyers should contribute to the profession in some way.  No lawyers should take for granted the work that others do to.  If you’re not a member of CBA and you are wondering what you can do to help the profession, one simple yet meaningful step would be to join the CBA.  For more information about joining click here