The cultural whirlwind of #MeToo has reached the judiciary, reluctantly bringing Dahlia Lithwick into the fray along with it. In a piece for Slate, she detailed her firsthand experiences with Judge Alex Kozinski. Dahlia’s was one of many accounts that that have now surfaced. Heid Bond was one of the first women prepared to go on the record. A former clerk to Judge Kozinski, she now writes romance novels under the name Courtney Milan. You can read Bond’s piece here and Judge Kozinski’s statement here. We speak with three of Kozinski’s accusers—Heidi Bond, Emily Murphy, and Leah Litman—and hear their ideas about what needs to change to allow women to work safely and successfully in a system often shrouded in secrecy. Then Dahlia is joined by Mark Joseph Stern for a run through the headline arguments and decisions from the Supreme Court in 2017 and a look ahead at what to expect in 2018.
Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to Slate.com/amicusplus.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Today's episode is all about the budding legal expert co-host of this show, one Thomas Smith, Esq. soon-to-be of Thomas's Second Chance Law Firm. First, taking a cue from the hilarious failed nomination of Matthew Petersen to the federal bench, Andrew asks Thomas the same kinds of basic questions. Is Thomas more qualified than Trump's judicial nominees? (The answer will not surprise you.) In the main segment, the guys break down a threatened "God's Not Dead 2"-style lawsuit at Thomas's old high school, Bret Harte High. Strap in for a bumpy ride, because this one is a roller coaster of crazy. Finally, we end with an all-new Thomas Takes the Bar Exam Question #55 about damaging a boat. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances None! Have us on your show! Show Notes & Links
On November 6, 2017, the Supreme Court issued per curiam decisions in Kernan v. Cuero and Dunn v. Madison, both cases involving habeas petitions filed by state prisoners. In this episode, we will be discussing both decisions. Up first is Kernan v. Cuero. Michael Cuero pled guilty to two felony charges, on the understanding that the maximum prison time he faced was 14 years and 4 months. In the course of making his plea Cuero admitted to a previous conviction for residential burglary, which qualified as a predicate offense or “strike” under California’s “three strikes” law. After the plea but before sentencing, however, the prosecution realized that another of Cuero’s previous convictions counted as a second such strike. Over Cuero’s objection, the trial court granted the prosecution’s motion to amend its criminal complaint to add the additional strike--but also permitted Cuero to withdraw his guilty plea in light of the change. He ultimately entered a new guilty plea to the amended complaint, and the presence of the second strike exposed him to an enhanced sentence of a minimum of 25 years and a maximum of life imprisonment. Cuero was then sentenced to 25 years to life, the conviction and sentence were affirmed on direct appeal, and his state habeas petition was denied by the California Supreme Court. Cuero then sought habeas relief in federal district court, which denied his petition. The U.S. Court of Appeals for the Ninth Circuit, however, reversed that judgment and held that the state trial court had “acted contrary to clearly established Supreme Court law” by refusing to enforce the original plea agreement with its 14-years-and-4 months maximum sentence. On November 9 the U.S. Supreme Court reversed the judgment of the Ninth Circuit and remanded the case. In a per curiam opinion, the Court held that the Ninth Circuit had erred when it held that “federal law” as interpreted by the Supreme Court “clearly” established that specific performance of the original plea agreement was constitutionally required. Our next case is Dunn v. Madison. In 2016, Vernon Madison petitioned an Alabama trial court to stay his death sentence after a series of recent strokes which, he argued, left him incompetent to be executed. Madison has been awaiting his death sentence since the 1980s, when he was convicted of capital murder. In Ford v. Wainwright and Panetti v. Quarterman the Supreme Court indicated that a person is entitled to relief if it could be proven that he “suffers from a mental illness which deprives [him] of the mental capacity to rationally understand that he is being executed as a punishment for a crime.” The trial court held a hearing to consider the testimony of two psychologists: one court-appointed and the other hired by Madison’s counsel. Although they acknowledged that Madison’s mental awareness and memory of past events may have declined post-stroke, both psychologists indicated that he could understand that Alabama was seeking retribution against him for his criminal act. The trial court denied Madison’s petition. Madison then sought habeas relief in federal district court, claiming that the state court had incorrectly applied Ford and Panetti and that its judgment was “based on an unreasonable determination of the facts in light of the evidence presented.” The District Court denied relief but a divided panel of the U.S. Court of Appeals for the Eleventh Circuit granted a certificate of appealability and reversed. As Madison no longer remembers committing his capital offense, the Eleventh Circuit reasoned, he cannot rationally understand the connection between his crime and his execution. The U.S. Supreme Court thereafter reversed the judgment of the Eleventh Circuit, explaining in a per curiam opinion that neither Panetti nor Ford “clearly established” that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case. The state court, the Supreme Court held, did not apply Panetti or Ford unreasonably, nor rely upon an unreasonable assessment of the evidence before it. Madison therefore was not entitled to federal habeas relief. Justice Ginsburg, joined by Justices Breyer and Sotomayor, issued a concurring opinion. Justice Breyer also issued a concurring opinion. To discuss these cases, we have Kent Scheidegger, Legal Director of the Criminal Justice Legal Foundation.
Today's episode welcomes back one of our favorite guests -- and the show's only three-time guest, Andrew Seidel, attorney with the Freedom From Religion Foundation. Together, Andrew, Andrew, and Thomas tackle a bunch of church and state separation issues. First, they break down Andrew Seidel's recent success in convincing the Senate Judiciary Committee to reject their most unqualified judges, Jeff Mateer and Brett Talley. Then, the gang does a deep dive into the oral arguments in the Masterpiece Cakeshop hate-bakery case. After that, Andrew Seidel gives us his take on a new Christian right-wing lobbying group co-founded by Gordon Klingenschmitt. Finally, we end with the answer to Thomas (and Andrew!) Take The Bar Exam question #54 about witness statements and overlapping privilege. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast and Episode 229 of the Atheist Nomads podcast. Give 'em a listen! Show Notes & Links
If you love Andrew Seidel, you might want to go back to his previous appearances on the show, Episode 82 (on Trinity Lutheran), Episode 85 (which was originally a Patreon-only exclusive), and Episode 111.
Today's episode talks about the disastrous wildfires that have ravaged Thomas's home state of California, and who winds up footing the bills for these disasters. It's exactly as much insurance law as you wanted to learn! First, we begin with some news items, including an update on the Net Neutrality vote, a new mega-merger, and the Supreme Court's denial of certiorari in Evans v. Georgia Regional Hospital, a case we discussed back in Episode 112. After the main segment, Andrew and Thomas also update on the pending tax bill and some other items in the news. Finally, we end with an all-new Thomas Takes the Bar Exam Question #54 about witness statements and overlapping privileges. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was just a guest on Episode 229 of the Atheist Nomads podcast; give it a listen! Show Notes & Links
Should you take legal advice from a viral video on YouTube? Today's episode is all about judges, lawyers, attorney-client privilege, and the police. We begin with the news that Supreme Court Justice Elena Kagan has recused herself in the case of Jennings v. Rodriguez; why? After that, the guys break down a video called "Don't Talk To The Police" and discuss some hallmarks of legal videos online. After that, Andrew tackles Donald Trump Jr.'s assertion that whenever a lawyer enters the room, attorney-client privilege shields everything. Is that really true? (No.) Finally, we end with the answer to Thomas Takes The Bar Exam question #53 about witness impeachment. Don't forget to following our Twitter feed (@Openargs) and like our Facebook Page so that you too can play along with #TTTBE! Recent Appearances Andrew was just a guest on Episode 75 of The Science Enthusiast podcast; give it a listen! Show Notes & Links
The second out-of-context quote comes from Justice Breyer's dissent in Rubin v. U.S., a 1998 cert petition regarding the extent of executive privilege.
The Mueller investigation keeps keeping on as subtweets, speculation, and objections mount. Dahlia Lithwick speaks with Andrew Wright, a former associate counsel to President Barack Obama about the latest developments. Plus a deep dive into the oral arguments in the Masterpiece Cakeshop case with Roberta Kaplan, who successfully argued Edie Windsor’s case against the Defense of Marriage Act in 2013.
Transcripts of Amicus are available to Slate Plus members several days after each episode posts. To learn more about Slate Plus, go to slate.com/amicusplus.
Please let us know what you think of Amicus. Join the discussion of this episode on Facebook. Our email is amicus@slate.com.
Today's episode concludes the discussion begun in Episode 125 about antitrust law in light of the proposed AT&T/Time Warner merger. First, though, we begin with some news items, including an update on Patreon practices and the status of Leandra English's lawsuit to become Acting Director of the CFPB. In the main segment, Andrew breaks down the Department of Justice's lawsuit against AT&T and Time Warner with an eye towards answering the question "is this just an effort to punish CNN?" After the main segment, fan favorite "Closed Arguments!" returns with an evaluation of Alan Dershowitz and John Dowd's claims that the President cannot obstruct justice. Finally, we end with an all-new Thomas Takes the Bar Exam Question #53 about witness impeachment. Remember that you can play along with #TTTBE by retweeting our episode on Twitter or sharing it on Facebook along with your guess. We'll release the answer on next Tuesday's episode along with our favorite entry! Recent Appearances Andrew was recently a guest on The Science Enthusiast podcast; you can watch the video of that here. Show Notes & Links
For $30 off your first week of HelloFresh, visit hellofresh.com and enter lawpod30! Today's special episode tackles the breaking news that Gen. Michael Flynn has pled guilty in connection with the Mueller investigation. To break down the significance of this deal, we welcome back Prof. Randall Eliason. After that, Andrew answers a bunch of listener questions regarding the tax bill that just passed the Senate. Recent Appearances Andrew just did two episodes of the David Pakman show: first, he was on talking about #NetNeutrality; and then, he came back for a segment on the Mueller investigation. You can see both -- including Andrew's spiffy new webcam -- by clicking the YouTube links above! Show Notes & Links
On November 7, 2017, the Supreme Court heard argument in Ayestas v. Davis, a case involving the extent to which 18 U.S.C. § 3599, which allows indigent defendants to obtain “reasonably necessary” investigative services in connection with issues relating to guilt or sentencing, applies in the context of procedurally defaulted habeas claims. Manuel Ayestas was sentenced to death for murder, and his conviction and sentence were affirmed on direct appeal by the Texas Court of Criminal Appeals in 1998. Ayestas then sought state habeas relief, claiming ineffective assistance of trial counsel because his attorney had failed to bring Honduras-based family members to Texas in order to testify to Ayestas’s good character and lack of criminal record in Honduras. The Texas state district court found that Ayestas’s trial counsel, though ultimately unsuccessful, had acted with reasonable diligence, and therefore denied habeas relief. The Texas Court of Criminal Appeals affirmed in 2008. In 2009 Ayestas sought federal habeas relief under 28 U.S.C. § 2254, claiming that his trial counsel had acted ineffectively by failing to properly investigate all potentially mitigating evidence. An effective investigation, Ayestas argued, would have uncovered his lack of a criminal record in Honduras, his schizophrenia, and his addiction to drugs and alcohol. The district court determined that Ayestas had procedurally defaulted this claim by failing to raise it in state habeas proceedings, and found no cause to excuse that default. The U.S. Court of Appeals for the Fifth Circuit denied a certificate of appealability. In 2012, however, the U.S. Supreme Court held in Martinez v. Ryan that the ineffectiveness of state habeas counsel in failing to claim ineffective assistance of trial counsel may provide cause to excuse a procedural default. Although the Fifth Circuit denied Ayestas’s motion for a rehearing based on the Martinez ruling, the Supreme Court vacated that judgment and remanded Ayestas’s case for further consideration in light of the Supreme Court’s 2013 decision in Trevino v. Thaler, which made clear that Martinez applied in the context of Texas state procedures. The Fifth Circuit in turn remanded Ayestas’s case to the district court to reconsider his procedurally defaulted ineffective assistance claim in the first instance. On remand Ayestas filed a motion for investigative assistance under 18 U.S.C. § 3599(f), requesting a mitigation specialist in order to develop his broader ineffective assistance of trial counsel claim. In 2014 the district court denied habeas relief, concluding that neither Ayestas’s trial nor state habeas counsel had been constitutionally ineffective, and that a mitigation specialist was therefore not “reasonably necessary.” Ayestas thereafter moved to amend his federal habeas petition to add claims relating to a recently discovered prosecution memorandum suggesting that the push for capital punishment in Ayestas’s case was improperly motivated by his national origin. He also sought a stay in federal court until he exhausted these new claims in state court. The district court denied all relief and denied a certificate of appealability. The Fifth Circuit affirmed in all respects. The Supreme Court granted Ayestas’s subsequent certiorari petition to address whether the Fifth Circuit erred in concluding that 18 U.S.C. § 3599(f) withholds “reasonably necessary” resources to investigate and develop an ineffective assistance of counsel claim that state habeas counsel forfeited, where the claimant's existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made. To discuss the case, we have Dominic Draye, Solicitor General of the State of Arizona.
