Sustained!: May 2009

Monday, May 11, 2009

The Fifth Circuit's Disfavored - Judge Sam Kent

Today, Judge Samuel Kent was sentenced to 33 months in Federal Prison for lying during an investigation of alleged sexual harassment charges. Throughout most of his 18 years on the bench, Judge Kent enjoyed a reputation for being a no nonsense judge who did not "suffer fools lightly." He was known by many as being a pro-prosecution judge. Ironically, the very laws that have been flouted by the Fifth Circuit are the very laws that would have prevented Judge Kent's downfall.

On numerous occasions, I had the opportunity to appear before Judge Kent representing clients. In fact, Judge Kent presided over two federal criminal trials in which I defended people. Throughout the many experiences I had with Judge Kent, he showed me no favors. His rulings were tough and consistent with Fifth Circuit precedent (tough on criminal defendants). He was quick to ridicule defendants who had been found guilty that minimized their guilt or failed to accept responsibility. He said things that tore at the heart of a defendant and delivered some of his rulings with little compassion. However, he always treated me, as an advocate, with respect. Unlike some judges, he did not assume I was incompetent or that I would not be a zealous advocate for my clients. He believed in the constitution and would conduct fair trials. And as it is with most federal judges, he did not comfortably accept mediocrity from advocates in his courtroom. He exacted a high standard for lawyers.

But that was in the Courtroom. The story of what happened in Chambers, as told by Ms. McBroom and Ms.Wilkerson, had a remarkably different plot. It was a saga of sex games, sex talk, sex, sex, and more sex. The two women spoke about being trapped in a burning building of sexual harassment with Judge Kent wielding a can of kerosene. The whole story left the Fifth Circuit and other federal judges (who are usually seen as being above the fray) embarrassed and in search of political solace.

Strikingly, the Fifth Circuit's reputation and approach to discrimination cases may have fostered this all. For years, the Fifth Circuit has treated discrimination cases (a category in which sexual harassment cases are found) as disfavored claims. For years, the Court was repeatedly reversed by the United States Supreme Court for making discrimination cases harder to bring and easier to be dismissed. For years, plaintiffs with discrimination cases which had to be filed in federal courts were shunned by lawyers. For years, the Fifth Circuit fostered a culture that allowed employment discrimination to flourish. The Court was so embolden in its position against discrimination cases that it did what no other Court of Appeals court in the Country did; it created and employed the "pretext plus" standard in discrimination cases before an objection to it was SUSTAINED! by the United States Supreme Court (reaffirming that a plaintiff only had to show that the employer's race neutral reasons were a pretext for discrimination to defeat a motion for summary judgment). Judge Kent served under their guidance. He saw dismissal after dismissal affirmed even where the conduct appeared egregious....all under the guidance of the Fifth Circuit. If the allegations were true; and I do not know if they were because I never saw anything that led me to form a conclusion one way or the other, then it would not be surprising that a Judge would devalue a woman's right to be free from sexual harassment when his superiors also did so.

This whole thing could have been avoided by a different culture by the Fifth Circuit Court of Appeals regarding sexual harassment claims. Had the Court taken sexual harassment claims seriously, then McBroom and Wilkerson would have felt empowered to file a claim as soon as the first alleged incident happened. Ever wonder why these ladies did not do so? Ever wonder why women who worked with Civil Rights lawsuits at the Courthouse did not exercise their rights and bring an EEO claim? Perhaps like everyone else who worked in the Courthouse, they knew the results of discrimination cases in Federal Court. As Judge Kent reamed defendants who failed to accept personal responsibility for their actions, Kent bears the responsibility for this case and his punishment. However, the responsibility for allowing and fostering a culture of disrespect for women in the workplace must be shouldered by a higher court.

Thursday, May 7, 2009

CIA Memos...No Nuremberg

“Even these thugs got a lawyer; even these thugs got a trial,” United States Senator Chris Dodd said of the Nazi defendants at Nuremberg, adding: "I know a lot of people don’t want to go back — and the president said to look [ahead]. ... But in a sense, not to prosecute people or pursue them when these acts have occurred is ... to invite it again in some future administration.” When a questioner asked if such a probe regarding the authorizing of torture techniques should go “as high as Cheney’s office,” Dodd interrupted to say, “You gotta go where you gotta go.”

There has been much talk in our nation about the recently released memos from lawyers advising of the legality of water boarding and other interrogation techniques. First thing is first; I believe torture is morally wrong. It has no place in a civilized society and it fosters the inherent danger that someone will give a false confession. But of interest in this story and how it has developed is the idea that the lawyers who wrote the memos should be punished. A lawyer being held criminally responsible for the advice given to a client causes me some pause. Perhaps it is because I have advised clients through difficult situations where they sought my opinion about the legality of an activity. Although I have always sought to help clients comply with the law, I always feel cautious and guarded when I give prospective advice. But what about cases were a lawyer is not sure if a situation violates the law? What if the lawyer is wrong or may give an opinion that is contrary to popular belief? What if a lawyer is conflicted by the experience of a deep personal tragedy or gives the advice following experiencing this great tragedy? Should that lawyer be held criminally liable?

I think President George Bush did a lot of stuff wrong during his presidency. He was the worse president in my lifetime. And I for one would like to see him and his vice-president punished for the many wrongs they did while in office. But I still remember where I was when the first plane crashed into the World Trade Center. I remember how I felt after that date. I remember how my heart hurt for the families who lost loved ones. But to travel down a spiraling road of vengeance seeking a measure of political payback for the wrongs of the Bush administration by holding the lawyers responsible for advising their clients; is a place we should not go. Lawyers are suppose to advise clients. Thankfully President Obama SUSTAINED! objections to Guantanamo. What happened there was "unAmerican." But it was no Nuremberg. Lawyers should feel free to advise a client, in good faith, without fear of repercussion. To do otherwise might chill sixth amendment rights.

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Trayvon Martin was shot and killed in Florida by George Zimmerman, a neighborhood watch volunteer. Martin was returning from a store buying some green tea and skittles. Trayvon Martin was wearing a hooded and was, by all accounts, minding his own business. Zimmerman shot Martin and alleged self-defense. His death was tragic. But to make matters worse, when officers sought to arrest Zimmerman and charge him with manslaughter, a prosecutor stepped in and blocked the charges. Upset by the disregard for this young man's life, people accross the nation took to the streets and protested. The lack of charges sparked discussion and activism from school yards all the way to houses of congress. Trayvon Martin's death increased awareness of our present state, much like Emmitt Till's death and the injustice that followed it increased awareness in the 1950s. People's objections to the status quo and the good ole boy's network were SUSTAINED! when Zimmerman's case was taken over by a new prosecutor and charges were filed.

The Gavel Goes Down on the 1%: Occupy This!

Protestors took to the Streets in New York, occupying Wall Street to protest corporate greed and corruption. The original protest began on September 17, 2011, and since then other protests have been held in 70 major cities and over 600 communities in the U.S. Many of these protest are still on-going. Here in the City of Houston, protestors are staging rallies nearly every week. Internationally, other protest have modeled themselves after Occupy Wall Street, in over 900 cities worldwide. These protests have been growing. We are witnessing the beginnings of a social movement. With their goals yet undefined, but steadily becoming more defined; the gavel goes down on the "Occupy" Movement's objections to the explotation of the 99% by the 1%. It will only be a matter of time until the energies of the protestors are transferred to other vehicles: like voter registration drives and engaging in other activities to increase social awareness.

The Gavel Goes Down: Police Officers Committing Crimes

In many places police officers commit crimes with impunity. But on March 31, 2011, a federal judge in New Orleans sentenced a former New Orleans police officer to 25 years in prison for his role in the shooting death of a man and the burning of his body after Hurricane Katrina.

David Warren was convicted in December of shooting 31-year-old Henry Glover without justification outside a strip mall less than a week after the storm hit in August 2005.

Sentencing is scheduled later for former officer Gregory McRae, who burned Glover's body in a car near a police station.

A jury also convicted former Lt. Travis McCabe of writing a false report on the shooting. His sentencing is on hold while his lawyers seek a new trial. But the Gavel Goes Down on Police getting away with Police Abuse. Twenty-five years may seem a little light for murder (The feds do not have parole and he will serve at least 20 years), but it certainly is a start.

The Gavel Goes Down: Oppression and Genocide in Sudan

Sudan may be headed for a split, with Northern Sudan and Southern Sudan forming two independent nations. Southern Sudanese election officials posted early results Sunday, January 16, 2011, indicating that perhaps more than 95 percent of voters in this regional capital voted to secede from Sudan. The referendum, held last week, was the capstone of decades of civil war in Sudan, which pitted Christian and animist rebels in the south against Arab rulers in northern Sudan. All indications show the weeklong referendum passing.

While the results are the first concrete steps for the south to secede from the rest of Sudan and become its own country, the final vote tally is not scheduled to be announced until Feb. 14. And true independence would not come before July 9, when an U.S.-backed peace agreement between the north and the south expires. It was signed in 2005. Still, many issues need to be ironed out, including citizenship rights, oil sharing and the future of the contested and volatile Abyei region, which was supposed to hold its own referendum on whether to join the south or the north but never did. But, the Gavel Goes Down on the world's objections to the attempted genocide that occurred in Sudan that resulted in the indictment of Sudan's president by the International Criminal Court.

In Washington, President Barack Obama congratulated the south on holding a peaceful, orderly referendum, calling it an "inspiration." But he also warned against breaking the peace agreement timetable.

The Gavel Goes Down: Ignoring the impact of Slavery on American History

After more than eight years of street demonstrations, arguments, haggling and missed deadlines; after extensive public debate about the impact of slavery on life in the United States and on the life and moral character of George Washington; after countless news articles and TV programs, the site marking the intertwined lives of presidents and slaves opened to the public on December 15, 2010 on Philadelphia's Independence Mall. "President's House: Freedom and Slavery in Making a New Nation" chronicles the story of race and power at the heart of our nation's birth. President George Washington owned some 300 slaves. His ownership of these slaves brought him status and power, which positioned him for the presidency. Despite Washington's signing of the Fugitive Slave Act in 1793, many slaves owned by him struggled and obtained freedom. The exhibit is the fruit of the struggled of the Black community in Philadelphia. It is an acknowledgment that Black people were part of America and contributed to it from the beginning. The exhibit tells the story of the inhabitants of the first Executive Mansion: George Washington and John Adams and the nine enslaved Africans held there by President Washington during his two terms in office. It is a stark objection to the white-washing of American history.

The Gavel Goes Down: 55 Years After Rosa Said No

The Gavel Goes Down: Eliminating the Kibera

The Kibera slum in Nairobi, Kenya has long been known as "the largest slum in Africa." This assertion has been recently challenged and many observers now believe that Kibera is the second largest slum in Africa. In September of 2009, the government of Kenya began clearing the Kibera to -rehouse all of the Nairobi's slum residents. Kenya plans to move all of the residents within the next nine years to communities that will include schools, markets and other facilities. Through the use of U.N. funding, funds from other relief efforts, and its own resources; the Kenyan government is spearheading the project. I (Eric J. Davis) visited the Kibera in 2006 and had the opportunity to spend time with some of the residents. Due to my ethnicity and the fact that we were accompanied by some Kibera residents, we were able to blend in and pass for locals. The resilance of the people was amazing. It was a small city where the people appeared to govern themselves well. The Kibera was safer than many major American cities. Nevertheless, the effects of poverty were apparent. There were no schools, no clean water, no sewage and no hospitals. Should the resettlement survive legal challenge (some slum lords are claiming ownership of the land and are taking the government to court - people pay rent to live in the slums), this African nation will take a big step towards eliminating poverty in its borders. Kenya is proof that African nations can govern themselves. The gavel goes down on Kenya's objections to poverty.