By Drew Carroll

Thursday, March 22, 6:00 p.m.

On a beautiful summer-like evening in New York City, just outside Columbus Circle, the Institute for American Values’ Center for Public Conversation hosted University of Minnesota Civil Liberties Law Professor Dale Carpenter, author of the acclaimed new book “Flagrant Conduct.”

The book demythologizes the facts behind Lawrence v. Texas, the landmark 2003 Supreme Court case that challenged a Texas law criminalizing sexual conduct between homosexuals; the decision sanctified the right of gay Americans to engage in sexual intimacy.

At the talk, Professor Carpenter offered this beautiful summation of his work, saying that it is the tale of “how gay rights lawyers rewrote a snarled human story into a pristine legal argument for basically a conservative Supreme Court.”

The snarled history begins on an autumn evening in 1998, when four men were hanging out in a modest apartment in a poor section of Houston, Texas. John Lawrence and Tyron Garner had been talking in the kitchen when Mr. Garner’s boyfriend became jealous of what he perceived as flirtation between the two, and, wanting to cause trouble, went outside and called the police, saying that there was a man wielding a gun inside the apartment. It wasn’t true.

Several versions exist of what happened when Deputy Joseph Quinn arrived at the apartment with three other officers – and four different accounts exist of what happened next. Deputy Quinn’s version, described as the “most salacious” by Professor Carpenter, had Mr. Lawrence and Mr. Garner having sex when the cops walked in. With police officers screaming and guns drawn, this version had the two men ignoring repeated requests to disengage from their sexual activity, continuing to have sex for almost a full minute until being forcibly plied apart.

Professor Carpenter threatened to halt the discussion for a “full minute” so that the group could feel the force of a passing 60 seconds. He didn’t, but did tell us that many people have always been skeptical of Deputy Quinn’s account, because, practically speaking, “the moment would have been over,” well before a forced separation.

In an interview with Mr. Lawrence not long before his death on November 20, 2011, Professor Carpenter says that Mr. Lawrence told him that the deputy’s version of events was pure and unadulterated fiction.   Read more »

By Drew Carroll

It’s a cold winter evening in New York City. Walking up Manhattan’s tony Park Avenue, I approach 63rd Street and find it completely barricaded. A polite NYPD officer tells me I’m not going anywhere until the President passes. To an older gentleman standing beside me this wasn’t an acceptable answer. He pulls out a five-dollar bill and offers it to the officer in exchange for letting him cross the street. The officer coolly responds, “that’s what Obama’s here for — money.”

The president was in town for a fundraising blitz, one of a series on his schedule as the White House ramps up for the 2012 campaign. First stop, a thousand dollar a plate dinner at Daniel (don’t make the faux pas I did; it’s pronounced “Danielle”), a four-star restaurant offering haute French cuisine. Later, a more intimate gathering at Spike Lee’s joint fetched a whopping $35,800 per guest, which included the likes of Mariah Carey and her beau Nick Cannon. After riffing on Al Green’s “Let’s Stay Together” at the Apollo Theatre in Harlem, Mr. Obama headed back to the White House with a cool $3 million added to his coffers.

And members of Congress are no different, though because they don’t have the majestic office of the presidency behind them, they spend as much as half their time scurrying after funds. This frenzied search for donations and the ramifications it has on our system of government are the focus of a revealing and insightful new book by the Director of Harvard Law School’s Edmond J. Safra Center for Ethics, Professor Lawrence Lessig. “Republic, Lost” lays out two critical flaws in the way our government currently operates: elected officials’ depend on campaign cash in order to win elections, and the public assumes that this money corrupts the system and the politicians that operate in it.

The U.S. Supreme Court stated in its 2010 Citizens United v. Federal Election Commission decision that political donations “including those made by corporations, do not give rise to corruption or the appearance of corruption.” It’s a shame the Supremes did not have the benefit of reading ”Republic, Lost,” which explains the subtle influence of money in politics, and the affect it has on policymaking. Professor Lessig takes you behind the closed doors of Congress and K Street, which he believes consist mostly of good and honest souls who are acting rationally within a corrupt system.

History serves as a guide for how it all developed. Beginning in the post-New Deal era of the 1940’s, Democrats maintained a stranglehold over Congress for nearly 50 years. Ronald Reagan’s win in 1980 gave new hope to a generation of Republican politicians like Newt Gingrich, who would eventually lead his party back to power in both houses of Congress. Mr. Gingrich also ushered in an era when money became paramount in politics. Through a political action committee, Gopac, Mr. Gingrich raised millions of dollars from mostly anonymous donors, whose mission is “educating and training a new generation of Republican leaders.”  Elections became more competitive, and outlandishly expensive. The rising influence of paid media, along with larger, more expert, campaign staffs, fueled costs even more, leading to even greater dependency on fundraising.  The cycle continues.   Read more »

By Shawn Sandler

It was the day before Dakotah Eliason’s sixteenth birthday, and as he spent the evening talking to his father, there was no discussion of how the big day would be celebrated.  Dakotah was in prison, and he was speaking to Mr. Eliason through an intercom and a pane of glass. Both of them knew that Dakotah would spend this birthday, and many more, behind the walls, fences and barbed wire that held him inside the Thumb Correctional Facility.

One year earlier, Dakotah had been sentenced to life without parole by a Michigan court for first-degree homicide. After suffering through a series of losses –his cousin died in a car crash, his girlfriend had dumped him, his family was losing their home, a friend had committed suicide and his childhood dog had died — Dakotah had picked up a loaded gun in his home and shot and killed his grandfather.  He was just 14 years old.

Dakotah had been spending a typical Saturday night at his grandparents’ house. After his grandmother went to bed and his grandfather fell asleep on the couch, Dakotah has explained that began thinking about his family and friends. He felt like everyone he loved was drifting away. He considered killing himself and tried to write a suicide note but he then began to consider taking someone else’s life instead. At three in the morning, Dakotah pointed the handgun at his sleeping grandfather and shot him in the head.

When speaking with the police, Dakotah said that he had never thought about hurting his grandfather but “something overcame me.” He wished he could take it back. He went on to explain how it felt to kill his grandfather. “The thing is when you actually do kill somebody, whether you have an emotional attachment or not, you get about five seconds. All the tension goes away. It’s just that initial feeing, it’s an overwhelming feeling – - I’m not really sure how to explain it.”

Rachel Aviv’s “No Remorse”, published in the January 2 issue of The New Yorker, chronicles Dakotah’s story, and examines our juvenile justice system as a whole, tracing how it has evolved from its origins in the early twentieth century as a system designed to rehabilitate youths into its current form as a system designed to punish juvenile defendants. During the course of this transformation, 46 states have changed their laws to make it easier for juveniles to be tried as adults.

In response to the increasing number of juveniles tried in adult criminal courts, the U.S. Supreme Court has abolished the death penalty for juveniles and held that life-without-parole sentences for juveniles whose crimes did not result in death is cruel and unusual punishment, prohibited under the Eighth Amendment.

But a movement among lawyers and health professionals would further protect juveniles, especially those under 16. These advocates seek recognition that their very age renders juveniles’ criminal trials inappropriate. And while the Supreme Court has acknowledged that juveniles are less culpable for their crimes committed “by reason of youth and immaturity” the Court has never said whether a juvenile’s youth and immaturity may be used as grounds for his incompetency to stand trial.

Ms. Aviv notes that today, “there is little recognition that people may be incompetent to stand trial because of their age”, and that approximately half of the juveniles tried as adults do not understand their Miranda warnings. This conflates the issue of whether a defendant is competent to stand trial with the issue of whether a defendant has understood his Miranda rights.  As we’ll see, lawyers for juvenile defendants would be well advised not to make this mistake.

Dakotah’s attorney argued that Dakotah’s statements to the police should not be allowed as evidence against him because he didn’t understand at that time that he was free to stop talking. The judge disagreed, finding Dakotah capable of understanding his Miranda rights that were read to him by the police.

It does not appear that his  attorney argued that Dakotah was incompetent to stand trial. LASIS explores what might have happened if he had.   Read more »

By Deva Roberts

Update: January 28, 2011, Deva Roberts is now a columnist for Ms. JD and had more to say about Mr. Susskind there.

In his 2005 book The World is Flat , Thomas Friedman observed that much routine professional work, such as analyzing CAT scans, is being outsourced to India at lower costs. Today, just five years later, we can even envision robots replacing doctors, and whatever the actual timeframe, we know that artificial intelligence will one day play a large role in the evolution of medicine.

Richard Susskind posits a similarly prominent role for technology in the evolution of the legal field in his book, The End of Lawyers. He spoke about his theories at New York Law School on Wednesday, September 29.

Despite his book’s provocative title, Mr. Susskind’s theory is more peaceful evolution than forced revolution, and he doesn’t really believe that lawyers will be soon become obsolete. Rather, he warns that if lawyers do not overhaul their notion of what law practice entails, others will supply what the public demands of the legal profession.

He likens the new type of legal demand to a hole in the wall — which is what the manufacturers of Black and Decker drills determined that consumers really want when they buy the company’s drills.

As legal practitioners, he says, we must ask ourselves “what it is that attorneys fundamentally provide?”  In other words, what is our “hole in the wall”? Read more »

By Jeremy Potter

On August 7, 1974, Frenchman Philippe Petit stretched a tightrope between the two World Trade Center towers, temporarily bringing together a fractured New York City while balancing on the wire for two miraculous hours.  This event was the basis of Man on Wire, an Academy Award winning film in 2008.   It is also the motif that runs through the mosaic of interlocking stories that comprise Colum McCann’s 2009 National Book Award-winning novel, Let the Great World Spin.

Let the Great World Spin will be of particular interest to today’s New York Law School community whose experience in fashionable downtown Manhattan is much different from that of those who experienced the economically depressed, crime-and graffiti-filled New York City of the seventies.

In an interview posted on YouTube, McCann described his efforts in the novel to reveal “ordinary moments” that reveal great truths and to serve as “a ventriloquist capturing the voices of the city.”

Surely he has succeeded in that goal. Read more »