The Yin Blog

ABC's "Scandal": not bad but terribly inaccurate on the law (Spoilers for 4/12/2012 episode)

I've watched the first two episodes of ABC's "Scandal" now, which is about a D.C. fix-it firm headed by Olivia Pope (played by Kerry Washington). She's a lawyer and DC insider who left the White House on her own, due to romantic entanglement with the still-married President. The show has taken great pains to have Pope emphasize that they are lawyers, but they aren't practicing law. Instead, they help powerful people manage scandals.

In the second episode, the two storylines, which invariably converge, involve a Tenth Circuit judge who's just been nominated to the Supreme Court but has an uncovered dark secret, and a DC madam who's facing prosecution. The local US Attorney badly wants to get his hands on her client list. You can guess who's on the client list. . . .

Anyway, it held my attention -- enough to keep a season pass on my TiVo -- but the attention paid to the accuracy of the legal issues was absurdly bad.

1) At one point, the US Attorney shows up at Pope's office to arrest her client. She keeps him away by asking if he had an arrest warrant, which he conceded he did not. But there's no need in general for an arrest warrant, unless you're arresting someone in his or her own house. See U.S. v. Watson, 423 US 411 (1976); Payton v. New York (1980). This one I can let pass because it's sort of inside baseball for lawyers.

2) In the very beginning of the episode, introducing the Tenth Circuit judge, a TV broadcaster referred to him as "Tenth Circuit Justice Keating." People who sit on the Tenth Circuit are "judges" not "justices." I saw an oral argument once where a lawyer inadvertently referred to a circuit judge as "justice" and the judge made fun of the lawyer for having promoted the judges. Again, this is not that big of a deal, especially since one could always argue that it was the TV broadcaster who messed up (i.e., the writers did this intentionally).

3) At another point, the U.S. Attorney shows up at Pope's office to serve a subpoena on her for the client list. The U.S. Attorney is going to serve a subpoena? Really? That would be like having the CFO of a corporation personally delivering annual reports to shareholders.

4) Speaking of the U.S. Attorney, at yet another point, Pope makes a comment to him that he was angling for an appointment to be Attorney General in the next Democratic administration. This makes ZERO sense. The writers have made clear that the current President is a Republican (which, by the way, raises the question, is Olivia a Republican as well, since she previously worked in his White House?). U.S. Attorneys are appointed positions, and they are pretty much aligned with the President. When Bill Clinton assumed office in January 1993, he immediately fired EVERY U.S. Attorney so that he could appoint his own. So the U.S. Attorney here is assuredly a Republican. Why would he expect to be appointed AG by a Democratic President? That makes no sense.

5) Speaking of making no sense, if Judge Keating is such a perfect jurist -- non-partisan, reflective, scholarly, etc. -- there would be no reason for the Democratic Senators to oppose confirming him. If they did manage to "Bork" him with the prostitution incident (which it turns out isn't even about him, only his wife), the next appointee could be more more ideologically conservative.

6) Um . . . Pope may say they're lawyers but they aren't practicing law, except there's a scene that sure looks like her colleague (Desmond from "Lost") was practicing law in a courtroom. Moreover, she's constantly talking about her clients and claiming lawyerly privileges and things. Yet, she has a massive conflict of interest in representing the D.C. Madam on the one hand (and seeking to protect the list and all that), and blabbing about Keating's presence on the list to the President on the other hand. Moreover, she actually starts working toward helping Keating even though that may be to the detriment of her client!

7) Finally, the resolution of both cases involves going to the clients on the list, who are mostly powerful DC insiders, and letting them know how important it was that the case against the DC madam go away, as well as supporting Judge Keating's nomination. Sure looks like she's blackmailing the various Congressmen. It's true that the state bars are pretty lame about going after lawyer misconduct, but I have a hard time believing she'd remain a lawyer after pulling a stunt like that.

Stealing from crime victims to help kids. . . .

As a parent, I'm pleased relieved that Portland Public Schools won't get trashed in the new budget, as had been indicated earlier; this year's funding level has been anemic enough as it is, with most classes at my son's elementary school having 30+ students. It's hard to imagine what a $27.5 million further reduction would have done.

However, a good chunk of the money being used to save the schools from further pain is actually being, well, stolen from crime victims. As the Oregonian notes, $56 million comes from a tobacco lawsuit. That money is the state's portion of punitive damages, which by state law is supposed to go into the crime victim fund. Kids are important, but so too are crime victims, and the law directs that money to crime victims.

It's hard to feel good about this.

That role playing Portland couple . . . .

I was interviewed earlier today by KGW about the local case involving a Portland couple who, while "role playing" on Valentine's Day evening, ended up attracting the attention of nine(!) police cars. The role playing involved gagging her with duct tape and putting her, naked, into the truck of the car while they drove around. Neighbors and a store manager called 911 . . . .

The couple was initially charged with disorderly conduct, but at the arraignment today, that was reduced to a violation, which they pleaded guilty to.

That seems about right to me. This doesn't seem like the kind of case that should result in any kind of serious prosecution, not even a misdemeanor. It was consensual, and no one was hurt, nor even intended to be hurt. (Of course, the nine police units were unable to respond to other calls during the time they were tied up, so there were collateral effects on others.)

Still, I think it's undeniable that the neighbors and the store manager acted entirely appropriately. I remember a case once where two defendants carjacked a couple, locking the male in the trunk, and repeatedly raping the woman in the backseat. They then drove to a convenience store, and both defendants got out of the car. The woman had the presence of mind to drive away, which was a good thing since she and her boyfriend might well have been killed otherwise. This could have been a really frightening and horrific situation. Calling the police was the right thing to do.

Gov. Kitzhaber stops all executions in Oregon

Oregon's governor announced today that he won't let any executions take place while he is in office. Of course, we don't really execute anyone in Oregon, unless they ask for it; since the death penalty was reinstated after 1976, the only two Oregon death row inmates to be executed both waived their remaining appeals. A third, Gary Haugen, has been trying to get himself executed this past year. In other words, there isn't that much practical impact of this announcement, apart from blocking Haugen's own bid for death.

On balance, I think getting rid of the death penalty in Oregon would be a good idea, considering how expensive it is to have capital trials, and how infrequently we actually carry out the sanction. And apart from the fiscal impact, I do admit to some lingering discomfort with the idea of state-sanctioned killing of a helpless inmate (as compared, say, to a battlefield combatant), not to mention the non-zero incidence of wrongful convictions.

That said, I think that absolute opponents of the death penalty need to have a good answer to the following question, which is of some relevance to Haugen himself: what sort of penalty is there to impose upon someone who is already serving a life sentence? Maybe there's no measurable deterrent effect to the death penalty, but a "lifer" would seem to get any number of "free" in-prison murders in a non-death penalty state.

It's not every day . . .

. . . that you meet someone who spent 17 years on death row and then was exonerated.

Over the weekend, I was in Spokane, Washington, to participate in the "Race and Criminal Justice in the West" conference at Gonzaga Law School, and I ended up chatting with Juan Melendez-Colon. Needless to say, it was a fascinating conversation.

Along the same lines, I heartily recommend False Justice: Eight Myths That Convict the Innocent by former Ohio Attorney General Jim Petro. This book recounts how Petro, a staunch Republican and prosecutor, became won over by the power and precision of DNA testing, to the point where he, as the sitting AG, was arguing with a local prosecutor about the latter's refusal to accept DNA results as exonerating a defendant whom she had prosecuted! These aren't death row cases, but the instances of innocent men who served ten or more years after their wrongful convictions is pretty powerful.

The death penalty may be a bad idea, but this guy is not the most sympathetic case study against it

I tend to think the death penalty is pretty bad ideally fiscally, because it costs far more to try to execute someone than simply to lock him (or her) up for life; and in these times of budget crunches, I'd think that states are better off spending that money on more schools or whatever. (It's especially bad here in Oregon, since we spend the money to put people on death row, but then we never execute them unless they volunteer for it.) And then on top of the fiscal reasons, I suppose I have unresolved and conflicted feelings about the morality of the death penalty, coupled with awareness of the non-zero incidence of wrongly convicted defendants.

Still, when you read about the execution of someone like Lawrence Russell Brewer, the white supremacist convicted of murdering James Byrd (an African-American) by dragging him to death from a pickup truck, it's hard to get worked up in the particular case. I mean, this is pretty sick stuff:

Six hours later, the bloody mess found after daybreak was thought at first to be animal road kill. Rowles, a former Texas state trooper who had taken office as sheriff the previous year, believed it was a hit-and-run fatality but evidence didn't match up with someone caught beneath a vehicle. Body parts were scattered and the blood trail began with footprints at what appeared to be the scene of a scuffle.

"I didn't go down that road too far before I knew this was going to be a bad deal," he said at Brewer's trial.

Fingerprints taken from the headless torso identified the victim as Byrd.

Testimony showed the three men and Byrd drove out into the county and stopped along an isolated logging road. A fight broke out and the outnumbered Byrd was tied to the truck bumper with a 24-foot (7-meter) logging chain. Three miles (5 kilometers) later, what was left of his shredded remains was dumped between a black church and cemetery where the pavement ended on the remote road.

Of course, I know that the policy question of whether we should have the death penalty has to stand or fall on its own, not based on individual cases, but in principle. At the same time, people like Brewer probably ease acceptance of the death penalty on an emotional level.

On a related note, I'll admit to a degree of inconsistency here. Repairman Jack, the protagonist of F. Paul Wilson's creepy horror/sci-fi/thriller series, once killed a bad guy by securing him to the back of a truck, leaving the guy to be dragged to his death. Jack intentionally killed the guy this way to make him suffer. For some reason, that didn't really bother me too much. It is fiction, and the guy was a really bad dude, I suppose.

 

Ex-felons as a protected class?

I guess I can kind of see the thinking behind San Francisco's proposal to make ex-felons a protected class -- such a conviction carries such a stigma that even when the person has finished serving his or her prison sentence, it's difficult if not impossible to re-integrate fully into society. And it doesn't sound as if it would be an unlimited form of protection:

[SF City Human Rights Commissioner Teresa] Sparks says rental property owners could turn away sex offenders and people who've committed some violent crimes, like murder. Employers could also reject job applicants if their crimes are "significantly related" to the position they are seeking, but they could only inquire about the applicants' criminal past at the end of the interview process.

Hmm. I'd think that violent crimes would likely be "significantly related" to most job positions, and probably for rental purposes as well. Yet:

"Without housing, it's hard to keep a steady job, and many times because of that, people recommit," Sparks said. She argues a criminal history shouldn't be the only reason someone is denied housing or work.

There seems to be some serious tension between Sparks' two observations. The very people that we most want not to recommit crimes are probably the violent felons, so arguably we most want to help them get housing and steady employment. Yet, people may rightfully think that violent felons are the last ones that you want to take a chance on.

 

 

If I had $149 to spend frivolously, this would be near the bottom of the list

Wait, it's not just $149, but $12.90 in shipping and handling. And, well, it's not even accurate. I mean, from 1996 to 1998, I was clerking for federal judges, and while that's a different kind of public service, it definitely wasn't as a member of the Bar. And from late-1998 to mid-2002, I guess I was serving the community, if you define "community" as super-powerful corporations and elite wealthy individuals. And from mid-2002 on, I've been teaching and haven't practiced at all. . . .

Heck, I haven't even bothered to display my law school diploma, and I have much warmer feelings toward Cal than I do toward law practice. . . .

A reminder of the outrageous Vincent Chin murder case

Vincent Chin would be 56 this year if he hadn't been murdered back in 1982. Here's a reminder of the travesty of injustice from his killers' trials:

It will be 29 years on June 19th.  On that day in 1982, Ebens, a then 42-year-old white Chrysler autoworker, along side with his stepson accomplice Michael Nitz, then 23, took a baseball bat and bludgeoned Vincent Chin, a 27-year-old Chinese American, to death on Woodward Avenue in Highland Park, a suburb of Detroit.

***

The facts are indisputable. Some witnesses say Nitz held down Chin. Some say he didn't. Everyone says he was there and did nothing to stop Ebens, who ferociously struck and beat Chin repeatedly, with two savage blows to the head leaving Chin unconscious.

For their admitted role in Chin's death, here's the amount of time Ebens and Nitz served for the crime they committed: zero.

***

Ebens and Nitz were allowed to plea bargain in a Michigan court to escape mandatory jail time for second degree murder.  Ebens pleaded guilty; Nitz pleaded nolo contendere. Both men got this sentence: three years' probation, a $3,000 fine, and $780 in court costs.

Jury duty

Today was the third time that I've been summoned for jury duty. (Actually, now that I think about it, I've been summoned more than three times; however, on at least one of those other occasions, I was about to move out of the county, so I didn't have to show up.) Once in Los Angeles, once in Iowa City, and now once in Portland.

This would have been a good time to be picked for a jury. I'm in the middle of grading exams, so of course any distraction seems quite a bit more attractive than it normally might. Plus, I think it would be fascinating to see the inside of a jury. Both times before I was actually voir dire'd and then bounced on peremptories.

I don't resent jury duty in the abstract. Since I'm part of the legal profession, it would be fairly hypocritical for me to want to avoid it when my profession benefits from making everyone do their part as jurors. What I do tend to resent is the seeming waste of my time, since I don't think I'm going to make it on a jury, being a law prof and all. (Although, two of my former Iowa colleagues have served as jurors, so go figure.)

But I suppose if nothing else, I'm there as "peremptory fodder." That is, if I get voir dire'd, one side's attorney is going to have to use one of their precious peremptory strikes to get rid of me, thereby speeding up jury selection. . . .

Anyway, it was relatively painless today. I checked in at 7:55 am, avoided being sent to Gresham (just east of Portland), and missed being called for two trials. At 10:30 am, the clerk released us, and I was able to get some housework done and then get in a good workout before a late lunch and then exam grading. It was definitely a more efficient process than jury duty in Los Angeles.