MC&A Newsletter
Volume X  ::  March 2010
Feb Forum Panel

Alan Chan, Jack Ford, Medina Senghore, Steve Herz and Olga Jobe

On February 11, 2010, MC&A held its first symposium in New York, entitled "The Law Degree's Infinite Possibilities." The symposium consisted of five distinguished attorneys who discussed the unique ways in which they have and continue to utilize their law degree. Among the panelists were Jack Ford, former anchor of Jack Ford: Courtside on In Session (formerly Court TV); Olga Jobe, real estate developer; Steve Herz, founder and President of If Management, Inc.; Medina Senghore, actress and Director of Intellectual Property Strategy at American Express; and Alan T. Chan, independent film producer.

The panelists discussed their career and educational backgrounds and how they broke away from the conventional legal career path to pursue their passions. Their stories were inspiring and they offered invaluable advice to legal as well as non-legal event attendees. The key take-away from the panelists was that everyone should work towards living their personal and professional truth by pursuing their dreams and having a law degree presents limitless options. All the panelists were proof-positive that "thinking outside of the box" is more than just a professional cliché, but rather a notion worthy of deeper consideration when choosing a career path.

MC&A would like to thank Jack Ford, Olga Jobe, Steve Herz, Medina Senghore and Alan T. Chan for their participation in the symposium and Robyn Sonis, MC&A Legal Intern, for her invaluable assistance in putting together a great event.
Serving Our Country Has Some Serving Lighter Sentences
HANDCUFFSIt is no secret that war can take its toll on soldiers.  Judges have started to take note of the fact that many soldiers who return from war are severely traumatized.  These judges realize that the effects of war can create serious mental health issues for which jail time may not be the answer.

Timothy Oldani of Charleston, West Virginia is a former marine who was found guilty of selling stolen military equipment on eBay. During his time as a marine, Oldani served in Iraq with the duty of detonating explosive devices and saw six of his fellow marines burned alive in an armored vehicle. He came home with traumatic brain injury and post-traumatic stress syndrome. As a result, Judge Robert C. Chambers of the U.S. District Court of the Southern District of West Virginia chose to sentence Oldani to five months in prison with three years of supervised release and treatment, as opposed to the almost five year sentence laid out in the federal sentencing guidelines.

Although the federal sentencing guidelines focus on the nature of the crime rather than the qualities of the person who committed the crime, Douglas A. Berman, an expert on sentencing, stated that "[m]ore and more courts are noticing and asserting, in a variety of ways, that there seems to be some relevance to military service, or history of wartime service, to our country." The sentencing guidelines do not consider military service to be ordinarily relevant, but the Supreme Court has ruled in past decisions that the guidelines are merely advisory. This allows judges the latitude to consider the mental states of soldiers post-war.

Across the nation, special courts are being created to deal specifically with war veterans. The special courts have a greater focus on treatment, understanding that veterans have unique issues. However, veteran status does not serve as a get-out-of-jail-free card and some of the new court programs specifically avoid a policy of across the board leniency.  Jack B. Zimmermann, a military law specialist involved with the creation of a new pilot program in Texas, noted that a veteran will only enter the program if both judge and prosecutor agree. Zimmermann further noted, "[t]hese men and women have served their country and have been injured. We as a society have an obligation to treat them."

Source: "Defendants Fresh From War Find Service Counts in Courts" by John Schwartz, 3/15/2010, The New York Times.
Guantanamo Defense Attorney Identities Outed and Their Loyalties Questioned
During the first week of March, Keeping America Safe, the conservative advocacy organization, released a video questioning the loyalty of Justice Department attorneys who represented Guantanamo detainees during their time in private practice. The group, run by Liz Cheney, daughter of former U.S. Vice President Dick Cheney, challenged the attorneys' values in voluntarily representing those accused of terrorism.

While liberals are up in arms, the video has also caused a rift amongst conservatives.  The Federalist Society, a group committed to conservative and libertarian ideals, has sharply criticized the video because it goes against the constitutional right for a defendant, no matter how unpopular, to have legal representation.

On March 7, 2010, Benjamin Wittes, a senior fellow at the Brookings Institution, issued a joint letter criticizing the attacks on government lawyers. The letter, signed by numerous conservative legal figures including Kenneth Starr, former special prosecutor Charles D. Stimson and former acting attorney general Peter Keisler, said the attacks were "unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications."

The video, referring to the government lawyers as the "Al Qaeda Seven," accused the Justice Department of concealing the attorneys' names, which were eventually revealed on Fox News. Keep America Safe supporter Marc A. Thiessen stated that the attorneys "were not doing their constitutional duty to defend unpopular criminal defendants [but] were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in a time of war."

While no attorney should be judged by his or her clients, and the ethical obligation of zealous advocacy requires an attorney do his or her best to represent a client's case, some believe it is fair to question the attorneys' agendas. David McIntosh, founder of the Federalist Society, pointed out that if the attorneys took the opportunity to represent the detainees because of a political or personal agenda, then those attorneys might not be the best people for the Justice Department. Either way the Justice Department refused to use the names of the attorneys in question for political purposes.

Sources: "Attacks on Detainee Lawyers Split Conservatives," by John Schwartz, March 9, 2010, New York Times; "Are You or Have You Ever Been a Lawyer?" Editorial, March 7, 2010, The New York Times.
Beyond Evidence:  Race and Gender Influence Judge Rulings
According to two recent studies, a judge's race or gender significantly affects the outcomes of cases in which race and gender are involved in the parties' conduct. One study, conducted by professors from the University of Pittsburgh School of Law and Carnegie Mellon University's Tepper School of Business, found that in federal racial harassment cases, plaintiff's lost 54% of the time when in front of an African-American judge, whereas the lost 81% of the time when the judge was Hispanic, 79% when the judge was white, and 67% when the judge was Asian-American.

The second study co-authored by Pat K. Chew of the University of Pittsburgh School of Law examined federal appellate cases that involved sexual harassment and/or sexual discrimination. In that study, plaintiffs that appeared before an appellate panel that included a female judge were at least twice as likely to win. The study further found that in every case, the judges all took the same procedural steps in reaching their decisions, thereby upholding the rule of law. However, she said that judges of different races had different approaches on how to interpret the facts of each case.

These results are in line with Supreme Court Justice Sonia Sotomayor's 2001 comment made during a lecture at the University of California, Berkeley School of Law where she said: "[p]ersonal experiences affect the facts that judges choose to see." Sotomayor further stated, "[m]y hope is that I will take the good from my experiences and extrapolate them further into areas with which I am familiar.  I simply do not know exactly what the difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Sources:  "Race & Gender of Judges Make Enormous Differences in Rulings, Studies Find" by Edward A. Adams, 2/6/10, ABA Journal. "Race, Gender and Decision Making" by David Leonhardt & Catherine Rampell, 5/27/09, The New York Times; "Lecture: 'A Latina Judge's Voice,'" 5/14/09, The New York Times.
Same-Sex Marriage Trial Remains Closeted in the Courtroom
The constitutionality of Proposition 8 (Prop. 8), California's ban on same-sex marriage, is on trial in San Francisco, California. Prop. 8 was a ballot initiative that amended California's state constitution to include the clause that "[o]nly marriage between a man and a woman is valid or recognized in California." The passage of Prop. 8 overturned the May 2008 California Supreme Court's ruling that struck down a 2000 ban on same-sex unions. On November 4, 2008, Prop 8 passed, with a 52.5% vote in favor and a 47.5% vote against. California's Supreme Court upheld the ban in a 6-1 ruling on May 26, 2009. Now the fate of Prop. 8 rests in the hands of the federal court, which will determine whether the ban violates the U.S. Constitution.

The trial has more to debate, however, than just same sex marriage. One of the major issues surrounding the trial is whether the proceedings can be videotaped and posted on YouTube. The California Rules of Court allow the videotaping and broadcasting of court proceedings at the discretion of the judge. Federal courts, on the other hand, generally refuse to admit cameras into the courtroom. However, U.S. Circuit Court of Appeals for the Ninth Circuit Chief Judge Alez Kozinski announced a pilot program in December 2009 that authorized courts within the Ninth Circuit to videotape non-jury civil trials.

In accordance with the new pilot program, the federal judge hearing the case, Judge Vaughn R. Walker, ruled that the Prop. 8 proceedings would be videotaped, fed live to other rooms within the courthouse and later posted on YouTube for public viewing. However, on January 11, 2010, the day the trial was to begin, the U.S. Supreme Court, acting on an appeal brought by the attorneys defending Prop. 8, issued a stay on all taping pending its final decision on the matter. To obtain an emergency stay such as this, attorneys must show their clients will suffer irreparable harm if the court fails to act. Here, the Prop. 8 defenders argued that their witnesses could be subject to harassment. Opinions within the legal community are split, with the debate resting on whether maximum public access to information outweighs the risk that witnesses could be harassed or that information could become distorted or falsified.

Some argue, such as Ed Whelan, former law clerk for Supreme Court Justice Antonin Scalia, that posting the trial on YouTube would allow people to alter or edit the video, thereby distorting witness testimony or attorney statements. In addition, publicly posting trial footage creates the potential for witness harassment on a much greater scale.

Jon Davidson of Lamda Legal, however, feels that proponents of Prop. 8 are opposed to posting the proceedings on YouTube because they want to avoid any public debate on the legal merits of the case. In response to Whelan's concerns with witness harassment, Davidson said that the potential for harassment always exists since the public can read news reports to learn who said what.

The Supreme Court had the ultimate decision on the matter and on January 13, 2010, in a 5-4 vote, all videotaping was indefinitely blocked from the Prop. 8 trial. The majority based its opinion on Judge Kozinski and Judge Walker's failure to follow proper procedure in accordance with federal law before changing the rules on courtroom broadcasting and criticized the California courts for changing their rules "at the eleventh hour to treat this case differently than other trials." The dissent, authored by Justice Stephen G. Breyer, who was joined by Justices Sonia Sotomayor, John Paul Stevens and Ruth Bader Ginsburg, said the court's ruling was unjustified and that the majority "identifies no real harm" from broadcasting the trial. 

Meanwhile, the gay community celebrated a win in Washington D.C. on March 3, 2010, when same-sex marriage was legalized in the nation's capital. This may be the push proponents of gay marriage need as they look to overturn Proposition 8.

Sources: "Same-sex Marriage and the New YouTube Debate" by Doug Gross, 1/12/10 cnn.com "Prop 8 Trial Set Up Aids Gay Marriage" by John C. Eastman, 1/12/10 cnn.com "Gay Marriage is Legal in U.S. Capital," by Ian Urbina, 3/3/2010 New York Times; "Gay Marriage Supporters Take To California Streets," 11/8/08 cnn.com; "California High Court Upholds Same-Sex Marriage Ban," 5/27/09, cnn.com; 2010 California Rules of Court, http://www.courtinfo.ca.gov/rules/index.cfm?title=one&linkid=rule1_150; "Gay Marriage Trial Revives Cameras-in-the-Courtroom Controversy," by Paul Elias, 1/13/10, CNSNews.com; U.S. Supreme Court Blocks Video Coverage of Prop. 8 Trial," by David G. Savage, 1/11/2010, Los Angeles Times; "Supreme Court Bars Broadcase of Prop 8 Trial in California," by Robert Barnes, 1/14/10, The Washington Post.

MC&A is firmly committed to our valued clientele.  We provide services in the areas of litigation, criminal law, and general corporate and business law.

For more information about how we can be of service to you, call us at 212.551.3617 or send an email to info@charleslawfirm.com.

Midwin Charles & Associates LLC
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New York, New York 10169

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In This Issue
The Practice Corner
In The Spotlight
Recent News
The Law Degree's
Infinite Possibilities
MC and staff
The MC&A Team: Robyn Sonis, Midwin Charles, and Genese Walker

Jack Ford
Medina Senghore and Jack Ford


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