Monthly Archive: June 2006

6

Vioxx and Corporate Apologies

Every time I see in the WSJ a mention of the Vioxx litigation or the Bausch & Lomb eye solution situation or any similar recent potential mass tort situation, I think back to my clerkship with Judge Jack B. Weinstein, EDNY, and I call to mind his opining about the value of apologies in the mass torts context.

As most of you might know, Judge Weinstein is famous for (among other things) facilitating the resolution of many major mass torts disputes, including those related to DES, Agent Orange, silicone breast implants, tobacco, and asbestos. Judge Weinstein is a wizard at managing the litigation of these sorts of cases, but he is equally masterful at assisting in the settlement process. When talking about some of these cases and about mass torts generally, in speeches, law review articles, and opinions, the Judge has often alluded to value corporate-level apologies might have in the context of resolving mass tort litigation. Indeed, the Judge often references (seemingly favorably) the role corporate-level apologies have had in the Japanese legal realm. While I do not purport to speak for the Judge, my impression is that he thinks that apologizing – by corporate officials to persons injured by the use of the corporation’s product – is something that is perhaps considered too infrequently (either in the absolute sense or in facilitating settlements and/or less costly resolution of mass torts disputes).

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7

Is Erroneous Conviction More Likely In Capital Cases?

Dissenting in Kansas v. Marsh, Justice Souter made the controversial claim that “among all prosecutions homicide cases suffer an unusually high incidence of false conviction.” He explained this phenomenon as due to “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent”. Doug Berman, at Sentencing Law and Policy, takes serious issue with this claim. writing:

Not only do I think that this assertion is wrong, but I think it is sad and dangerous that the four “liberal” Justices might actually believe it is true.

Unfortunately, like a couple of his commenters, I think there is a good chance that Souter is right and Doug is wrong. Why? At least six reasons.

1. The plurality, if not majority, of criminal cases involve a crime witnessed by a police officer where arrest followed immediately. In these cases – from drug cases, to DUI, to disorderly conduct – error rates are likely low. This is true for two reasons. First, notwithstanding their competitive urges, officers have relatively little incentive to lie. (This may be a bit less true in officer assault cases, where disciplinary or tort consequences for offender injuries hinge on asserting that the defender was the cause of the problem.) Second, when the arrest follows immediately after the offense, there is very low risk of misidentification. Civilian assaults – including homicides – involve seriously higher risk of jury error. In assault cases involving unknown assailants, identification errors are a significant problem. The incidents are often quick and unexpected, and witnesses have little opportunity to observe what really occurred. Cross-racial identification problems infect the accuracy of ID’s in some cases. Poor line-up and photo array techniques further undermine accuracy of these identifications. And despite all these problems, witnesses are typically very confident that their testimony is accurate. Unfortunately, juries often rely on this confidence factor to “believe” eyewitnesses; the problem is that confidence is not a proxy for accuracy. Witnesses are sure they’re telling the truth, but they are often wrong. Thus capital cases, and cases lacking officer observation more generally, involve more guilt error than average.

2. Capital juries are likely to be less sympathetic to the defense because they are death-qualified (i.e., only people who are willing to impose death are permitted to be jurors in a capital case.) This eliminates a not insignificant portion of the population that is most attractive to the defense.

3. In capital cases, defense attorneys frequently do not mount serious innocence defenses during trial for fear that, if the defendant is convicted, he or she will appear less remorseful at the punishment phase. This is basic strategy in any capital case. The sentencing tail typically wags the guilt/innocence dog.

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3

18th Century Venture Capitalists

dismal.jpgAs I posted earlier, of late I have been reading Virginia history. I have one title to suggest: Charles Royster, The Fabulous History of the Dismal Swamp Company. It is an tremendously detailed history of one of the great 18th century land speculations, the attempt to drain and sell the Great Dismal Swamp on the Virginia-North Carolina border. George Washington was one of the movers and shakers in the company, but other characters in the story include names like George Wythe, Richard Henry Lee, Patrick Henry, and a host of other luminaries from the American Revolution, as well as lesser known names like Christopher Gist, a Virginia merchant who helped to found Lloyd’s maritime insurance business.

Royster is a good writer and — for me at least — the narrative works nicely. The research represented by the book is awe-inspiring and the result is an enormous wealth of detail about everything from family politics (everyone who was anyone is colonial Virginia was related to everyone else) to imperial politics. At the center of the story, however, is what amounts to a venture capital deal.

To me one of the most fascinating parts of the story is the role that the events of the American Revolution play in it. The Dismal Swamp Company was founded as the Seven Years War (aka the French and Indian War) was coming to an end and its story twists through the years leading up to independence. Furthermore, given the vast scale of the project it inevitably became entangled in colonial and ultimately metropolitan politics. Hence, the events of the Revolution play out in the story, but in a new angle. They are not at center stage. Rather, the Stamp Act and Patrick Henry’s fiery speeches in the House of Burgesses are secondary characters who come on and off stage only as they impact the unfolding drama of the deal.

If one sees history in legal terms, the plots are often structured around public law stories in general and constitutional ones in particular. Royster’s book is, in a sense, the private law story of the American Revolution. He is not a legal historian, but the law is hardly a bit player in his story. The drama, however, centers less around constitutional arguments about rights and representation than around bills of exchange, maritime insurance contracts, mortgages, debts, collection actions, wrangles over title to land, corporate governance, and the like, all of which propel the characters in the story via various complicated paths to ruin or fortune.

Definitely worth reading.

5

“Juicy” Weather?

The torrential rains rode into Virginia on tropical winds that were “very juicy” with moisture and were blocked from blowing out over the Atlantic Ocean, said meteorologist Dave Lawrence of the weather service’s Blacksburg [Virginia] office.

– Kiran Krishnamurthy, City Braces for Storms, Rich. Times Disp., June 27, 2006

It is raining up and down the east coast, and, not only have I never seen rain like this, I have never heard of weather being described as “juicy.”

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0

A Milestone

292692_milestone.jpgA brief note to celebrate an artificial milestone. According to Sitemeter, we received visitor number 500,000 sometime during the wee hours of the morning. [My bet: it was Filler, obsessively checking to see who was reading his “very goodKansas v. Marsh post).]

Not too shabby, considering that we’re not even nine months old. Way to go us! [Update:I forgot to mention that we also recently posted our 1,000th entry. Contrary to popular belief, a majority have fit within our motto’s constraints of “the Law, the Universe, and Everything.”]

And now, back to our regular programming.

8

Wild KPMG Fees Decision

Barely one day old, and Gonzalez-Lopez is already making waves in corporate law. To see the connection, however, you’ll have to bear with me for a bit of brush-clearing.

Judge Lewis A. Kaplan (S.D.N.Y.) today ruled on certain individual defendants’ motions to dismiss an indictment arising from the KPMG tax shelter investigation. (Large pdf here.) According to the defendants, their due process rights were violated when the U.S. Attorney pressured their former employer (KPMG) not to advance and reimburse legal fees incurred as individuals defendants. Judge Kaplan found a due process violation, scolded the government, and suggested a new lawsuit against KPMG to recover those legal fees, in which today’s decision would have collateral effect and make the proceedings summary. In short: the decision seems to constitutionalize the right to receive indemnification from your employer.

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1

High Noon At The Supreme Court On The Purpose Of Criminal Appeals?

Yesterday’s SCOTUS decision in United States v. Gonzalez-Lopez is the most recent installment in a fascinating debate about the function of appellate reversal and the value of procedural rights in criminal cases.

Of course, appellate crimlaw folks know all about the “harmless error” doctrine of Chapman v. California and the important distinction (drawn in Arizona v. Fulminante) between “structural errors” in the criminal process (which require appellate reversal of convictions without regard for their impact on outcome) and “trial errors” in the criminal process (which require appellate reversal of convictions unless they are “harmless beyond a reasonable doubt” to the outcome.

The question in Gonzalez-Lopez was whether an appellate court ought to reverse a conviction automatically upon finding that a trial court denied the defendant his 6th Amendment right to counsel of his choice, or whether it ought to reverse that conviction only if the record reflected that the outcome was affected by the defendant’s not having his chosen attorney beside him. (There was no question that the trial court actually denied the defendant his 6th Amendment right; the defendant had his own lawyer all picked out, but the trial court wouldn’t allow that lawyer to represent the defendant or to participate in the trial at all.)

The issue is a bit technical, but it provides an excellent window into what seems to be a very basic disagreement on the Court about the purpose of appellate review in criminal cases, and about the nature of trial and investigative rights in the criminal process.

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2

Why I Read History

jamestown-ships.jpg

I mainly read history because it is fun. I do, however, occasionally have other reasons. For example, I think that reading history can be an important part of our moral education. Aristotle argues in his Ethics that one ought not to expect a greater level of certainty from a field than the field can deliver. In context, he was making the point that abstract ethical precepts and concepts will only get one so far when it comes to leading a good life. At some point or another, judgment is inevitable. Judgment is not a matter of deducing conclusions from abstract premises. Rather, it is a matter of making good decisions based on wisdom accumulated by experience. History is useful, I think, because it can be a surrogate for experience. We can only live so much, but by reading about the past we can accumulate a vast fund of particulars from the lives of others that can yield a kind of wisdom.

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5

Scalia v. Souter On The Death Penalty

Today’s Supreme Court decision in Kansas v. Marsh, a case involving the constitutionality of Kansas’s death penalty statute, delivered more than one might have expected of a (relatively) minor case. At issue was a statute that called for a jury to impose death if the DA proved, beyond a reasonable doubt, that mitigators did not outweigh aggravators. Put another way, the question was: can a state constitutionally impose death where the jury concludes that neither the mitigators nor the aggravators outweigh each other – that is, it’s an evidentiary tie. (There’s a more complete summary of the case at Scotusblog.) But what makes this case interesting and arguably important so much the legal issues, but the way the justices approached them.

Dissenting, Justice Souter argued that a sentencing sheme must produce morally justifiable results. He did a tour around some of the reasons to question the accuracy of America’s death penalty system: exonerations of people on death row, the increased use of DNA to undermine capital sentences, and “the combined difficulty of investigating (capital cases) without help from the victim, intense pressure to get convictions in homicide cases, and the corresponding incentive for the guilty to frame the innocent.” Souter spent a total of three and a half pages making these particular claims about accuracy, and concluded “in the face of evidence of the hazards of capital prosecution, maintaining a sentencing system mandating death when the sentencing finds the evidence pro and con to be in equipoise is obtuse by any moral or social measure.”

Responding to this, and in the pragmatic voice of McCleskey v. Kemp (where the Justice Powell concluded that a racially biased death sentencing system does not violate the Constitution), Justice Thomas wrote that “because the criminal justice system does not operate perfectly, abolition is the only answer to the moral dilemma the dissent poses. This Court, however, does not sit as a moral authority. Our precedents do not prohibit the States from authorizing the death penalty, even in our imperfect system.” Put another way: innocent people may be executed, but probably not that many, and there’s not much we can do.

Justice Scalia, however, got quite exercised. He attempted to slice and dice the various arguments, studies and reports relied upon by Souter. To Souter’s three and a half pages, Scalia offered eleven pages of retort. He also hinted to his real concern: that Souter’s opinion would give comfort to foreign abolitionists. He wrote:

There exists in some parts of the world sanctimoniouscriticism of America’s death penalty, as somehow unwor-thy of a civilized society. (I say sanctimonious, because most of the countries to which these finger-waggers belong had the death penalty themselves until recently – and indeed, many of them would still have it if the democratic will prevailed.) It is a certainty that the opinion of a near-majority of the United States Supreme Court to theeffect that our system condemns many innocent defendants to death will be trumpeted abroad as vindication of these criticisms. For that reason, I take the trouble to point out that the dissenting opinion has nothing substantial to support it.

Interesting stuff. Here are a couple of things that came to my mind reading the opinions.

1. The difference Alito makes. Most people will read this decision and conclude that Alito turned the outcome around. This is probably correct. But Souter’s opinion changed as well. Had SOC been around for this case, Souter could never have included the recent data about exonerations and innocence in the opinion. I have great difficulty believing she would have signed on to that. This evidence has been hanging around for a few years, and it almost seemed like Souter was looking for a time to trot it out. As the dissent pointed out, this wasn’t a case about guilt or innocence, but rather sentencing. It is entirely possible to imagine that an innocent person would get a death sentence even under the most rigorous of sentencing standards. Sentencing standards don’t reduce erroneous convictions. Souter’s argument only makes real sense – as the dissent notes – if its goal is to reduce the number of people who receive death sentences (and thus the number of people for whom systemic errors would be fatal.) That’s not a narrow procedural ruling; that’s a whole different attitude towards death as a sanction.

2. Which leads to my second point. This may be a 5-4 decision, but it wasn’t even close. Although the media may report it as a tight vote, in fact the majority and dissent were miles apart. If SOC had joined Souter, I think the majority would have written a narrow opinion relying on purely legal claims. Since Souter had no chance of winning a fifth vote, he made a critical move: he introduced empirical data from the real world (but almost certainly not from the trial record) into his analysis. I don’t know why he did it. Perhaps he believes it time for these issues to be debated in society, and wanted to use an opinion as a platform to spark debate. Perhaps he believes that these issues must be introduced into the jurisprudence now so that they can flower in 10 or 20 years. Perhaps he worries that there will not even be four votes for this opinion in a year or two, and wanted to make these points while they can still be described as the view of a strong 4-vote minority. Or maybe he thinks that, a couple of years from now, Justice Kennedy will revisit these questions. Whatever the reasons, he can’t have thought he’d win any votes with this opinion.

3. Which leads to the next question. Why did Scalia explode? I suspect he did so because he fears Souter’s opinion was designed for all these purposes, as well as to spur further international debate on America’s use of capital punishment. Indeed, the international dimension of this case – which Scalia highlighted – is surely a big issue for him. Notwithstanding his old world love for American policy independence, the New World Order – discovered by 41 – increasingly calls for America to comply with international norms. The Constitution may not forbid capital punishment, but it’s easy to imagine that some future international trade pact will. So maybe Scalia is taking this chance to make the case on behalf of the USA that, with respect to error at least, the death penalty ain’t so bad. I agree with MJ, commenting over at Orin’s place, though. I suspect that Scalia’s opinion was so much of a “smack-down” that the rhetoric may undermine its value. It certainly undermined his ability to garner a second vote.