Knowing that this story will soon disappear from Twitter and the headlines I have gathered key documents, etc. with fall classes in mind.  My suggested question for discussion is “Would you have argued – if your DOJ boss insisted – that soap was not required under the settlement agreement calling for minor immigrants to be detained in “safe and sanitary” facilities?” Click through for the full post. -gwc

Source: OTHERWISE: Safe and sanitary – the limits of advocacy

The court also rejected Defendants’ argument that “soap, towels, showers, dry clothing, or toothbrushes” are not required under the Agreement because the Agreement makes no mention of those items.

Civil Gideon – Right to Counsel in Child Abuse Allegation by Division of Children and Families  Almost fifty years ago the New Jersey Su…

Source: OTHERWISE: Civil Gideon: NJ Court Affords Counsel in Child Abuse and neglect Cases

Almost fifty years ago the New Jersey Supreme Court declared in Rodriguez v. Rosenblatt that an indigent defendant facing any “consequence of magnitude” is entitled to appointed counsel.  From that petty criminal matter the right has been slowly extended in civil matters such as termination of parental rights, jailing and “automatic” suspension of driving privileges for failure to pay child support, suspension of driving privileges, and involuntary civil commitment.  In Division of Children and Families v. L.O. the Appellate Division has extended that right to State Division of Children and Families administrative and judicial actions to substantiate child abuse, and place the defendant on the Child Abuse Registry.

The court considered whether indigent parents and guardians – once notified that an investigation has substantiated them for child abuse or neglect – are entitled to the appointment of counsel when exercising their right to an administrative hearing to challenge that determination.
Because the potential consequences of such administrative proceedings – including permanent listing in the Child Abuse Registry – are of significant magnitude, counsel must be made available for indigent parents and guardians both at the administrative level and in any appeal of right to this court, just as that right exists in Title Nine actions commenced in Superior Court.

The court also determined that until such time as the Legislature addresses this constitutional right counsel may be appointed to serve – without compensation – in such matters. Six months ago a Superior Court judges ordered the state to provide counsel to delinquent child support obligors in drivers license suspension cases.  There too funding has not been appropriated.   In this era of No new taxes pledges the Legislature has failed to respond in other instances where the right to counsel has been extended.  The recently elected Democratic Governor and the Democratic majority legislature have often found themselves at odds.  The statewide Office of the Public Defender stands ready – if funded – to provide competent representation.  But I have my doubts about whether the Governor and Legislature will address this problem. – gwc

Source: OTHERWISE: Trump to Justices: Put yourselves in my shoes!

Pursuing their monarchical presidency argument Donald Trump’s lawyers – in their D.C. Circuit brief on appeal in the Mazars accounting subpoena case – make a sort of Golden Rule argument.  Looking ahead to the United States Supreme Court which will soon be confronted with deciding whether  Trump’s accountants must heed a House Oversight Committee subpoena for his financial records.  Put yourselves in my shoes, say Trump’s lawyers to the Justices who have exempted themselves from the Code of Conduct of United States Judges:

[A]lthough “Congress has directed Justices and judges to comply with both financial reporting requirements and limitations on the receipt of gifts and outside earned income” and the Justices comply with them, the Court has never decided “whether Congress may impose those requirements on the Supreme Court.” **. In short, “the limits of Congress’s power” in this area have “never been tested.” 

Yet replace “President” with “Justices” and the ruling below would, without question, authorize a congressional subpoena for the Justices’ accounting records— even for many years before they joined the Court. There would “be little doubt” that “Congress’s interest in the accuracy of the [Justices’] financial disclosures falls within the legislative sphere.” ***

Whether they are “abiding by the Foreign Emoluments Clause is likewise a subject on which legislation … could be had.” ***. “So, too, is an investigation to determine whether [the Justices have] any conflicts of interest” (even though those laws do not currently apply to them), given that “exposing conflicts” and “shed[ding] light” are “entirely consistent with potential legislation in an area where Congress already has acted.” ***

Finally, the subpoena would be “justified based on Congress’s ‘informing function’” since, according to the district court, Congress has “sweeping authority to investigate illegal conduct of a [Justice] before and after taking office.” ***

Just remember ..The Godfather loves you… NEW: Voicemail of Trump’s lawyer calling Mike Flynn’s attorney for a “heads up” on the Muelle…

Source: OTHERWISE: Just remember – the Godfather loves you…John Dowd to Michael Flynn

Source: Harvard Was Wrong to Dismiss its Dean for Representing Harvey Weinstein | American Civil Liberties Union

June 6, 2019

by David Cole ACLU Legal Director
& Carol Rose, Executive Director, ACLU of Massachusetts

Last month, Harvard College Dean Rakesh Khurana announced that Ronald Sullivan, a professor in the law school, would no longer serve as faculty dean of Winthrop House, a residential dorm at Harvard. Sullivan was the first African American to serve as a faculty dean and had served in that role at Winthrop House for a decade. But when he chose to join the legal team defending Hollywood mogul Harvey Weinstein in his upcoming criminal trial on allegations of sexual assault, his decision sparked protests and sit-ins, as students demanded his ouster as dean. In the end, Harvard caved to the pressure.

The decision sacrificed principles central to our legal system.

The ACLU is committed to fighting sexual assault, in the workplace, the home, on campus, and in the world at large. At the same time, Weinstein, like every person accused of a crime, is presumed innocent in his criminal case unless he pleads or is proven guilty beyond a reasonable doubt. Commitment to that principle, and to the system mandated by our Constitution, means we are equally devoted to the principle that every criminal defendant, no matter how vilified, no matter how innocent or guilty, and no matter how poor or rich, deserves a lawyer. If the latter principle is to be respected, it is essential that society not conflate a criminal defense lawye

Last month, Harvard College Dean Rakesh Khurana announced that Ronald Sullivan, a professor in the law school, would no longer serve as faculty dean of Winthrop House, a residential dorm at Harvard. Sullivan was the first African American to serve as a faculty dean and had served in that role at Winthrop House for a decade. But when he chose to join the legal team defending Hollywood mogul Harvey Weinstein in his upcoming criminal trial on allegations of sexual assault, his decision sparked protests and sit-ins, as students demanded his ouster as dean. In the end, Harvard caved to the pressure.

The decision sacrificed principles central to our legal system.

The ACLU is committed to fighting sexual assault, in the workplace, the home, on campus, and in the world at large. At the same time, Weinstein, like every person accused of a crime, is presumed innocent in his criminal case unless he pleads or is proven guilty beyond a reasonable doubt. Commitment to that principle, and to the system mandated by our Constitution, means we are equally devoted to the principle that every criminal defendant, no matter how vilified, no matter how innocent or guilty, and no matter how poor or rich, deserves a lawyer. If the latter principle is to be respected, it is essential that society not conflate a criminal defense lawyer’s representation with his or her client’s acts.

ACLU lawyers, for example, have successfully represented convicted sex offenders challenging the inhuman and onerous conditions imposed on them after they have served their time. We defend men held at Guantanamo accused of terrorism. We have defended dozens of men on death row who have been found guilty of brutal murders. And we have advocated for the First Amendment rights of Ku Klux Klan members, flag-burners, and Nazis.

These are not easy cases to take on. It should go without saying that we take them not because we support sex offenses, murder, flag-burning, or white supremacy. We do so because we are committed to defending our constitution’s fundamental protections — no matter how vile the actions or views at issue in these cases. Public defenders similarly provide zealous representation to any indigent client, regardless of the underlying allegations, and our criminal justice system depends on their work. Once people begin to confuse a lawyer’s defense of important principles with the defense of despicable acts, it is much more difficult to uphold these principles — at least for those who society is eager to vilify.

Ron Sullivan’s career is a quintessential example of this kind of lawyering. For example, he served as director of the Public Defender Service for the District of Columbia. He has repeatedly advised district attorney’s offices about setting up meaningful conviction integrity programs, and he has represented victims of injustice, including the family of Michael Brown, killed by a police officer in Ferguson, Missouri. In short, Sullivan’s work, more so than most, has served marginalized communities.

DEFEND OUR ABORTION RIGHTS

TAKE THE PLEDGE

Some have alleged that Sullivan was not an effective dean, wholly apart from his controversial representation of Weinstein. The college conducted a “climate survey” at Winthrop House and heard a number of complaints about his deanship. But it is telling that Sullivan was dean for 10 years without any effort to oust him. It was only after he undertook the representation of Weinstein that the students began to protest, the college surveyed the “climate,” and then dismissed him. From all appearances, it was Sullivan’s representation of Weinstein, not his performance as dean, that prompted his dismissal.The Crimson, the Harvard student paper, supported the action, as did several student groups. The student paper editorialized that there is an “incongruity” between “defending Weinstein in his role as defense attorney while simultaneously working to promote a safe and comfortable environment for victims of sexual misconduct and assault in his capacity of faculty dean.” And some have argued that the dismissal as dean is not such a big deal, because Sullivan remains a tenured professor.

But nothing about being a defense attorney makes one unqualified to serve as a dean. Moreover, Sullivan responded to concerns that his representation might affect his role as faculty dean. He set forthmultiple processes and resources for students to bring complaints about sexual assault; made a resident dean, Linda Chavers, a “point person”; and identified multiple other persons who could both receive complaints and counsel students.

The second contention — that Sullivan was simply dismissed as dean, not fired altogether — suggests that it is okay to compromise principle if the harm inflicted is small. But that’s not how principle works. If it were established, for example, that he was dismissed because he is Black, no one would say it’s okay because he’s still on the faculty.

The student protests at Harvard provided the institution with an opportunity. It could have used the incident as a teachable moment about the importance of criminal defense in our society as well as about the importance of tolerance on a campus of higher learning. It could have demonstrated that there is a fundamental distinction between a lawyer and his clients — and that our system of rights depends on that distinction. Instead, it sacrificed principle in an apparent quest for an easy way out.

What lesson does that teach?

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