Contributor Post Created with Sketch. Recommended by Ricochet Members Created with Sketch. Unequal Justice? I Blame Republicans.

 

I was struck by a side comment offered by Larry O’Connor, in the February 12, 2020 “Examining Politics” episode. In a segment on the Roger Stone sentencing recommendations kerfuffle, O’Connor, as podcast host, noted that he had been involved in civil litigation in the DC area some time ago. He settled the case, and…

He was told that he had absolutely no chance of prevailing with a DC jury, that his known political affiliation made him a guaranteed loser. Think on that for a moment. If true, it was an assumption in the local legal community, “everyone knows,” that if you are conservative you will not get justice from a DC-area jury. This effectively reduces the value of every conservative’s lawsuit to the nuisance suit level.

What does that mean? Say you have “black letter law” (the actual law, passed by the legislature and signed by the executive) on your side in a civil case. Say your facts are unassailable; you have everything documented in a form that the other side will have no chance of challenging. Say your damages are worth a million dollars. And yet, every lawyer you go to for help tells you, “sorry, but the real value of your case here is whatever the jerk’s insurance company will write off every day of the week as the cost of doing business.” You, a serious plaintiff, are reduced to the status of a slip-and-fall plaintiff, because of your political identity.

That cannot be tolerated. And yet, Republicans have had control of the House, Senate, and White House repeatedly but apparently allowed this gross injustice to fester in our nation’s capital region. The federal courts, below the Supreme Court, are creatures of Congress. They depend for their existence on legislation, not decrees handed down from the Supremes. The rules of the courts, likewise, are exactly what Congress passes and a president signs into law. See for yourself on the official United States Courts web page: “Current Rules of Practice & Procedure.” See the Constitution’s clear language [emphasis added]:

Article III

Section 1.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.

Section 2.
The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed.

If “everybody knows,” then that certainly includes Congressional staff and the members of Congress. The Congressional Republican Party has averted its gaze from the district which, as a matter of that quaint document, the Constitution, is their responsibility. Article I, Section 8 is crystal clear:

The Congress shall have Power To… exercise exclusive Legislation in all Cases whatsoever, over such Dis­trict (not exceeding ten Miles square) as may, by Cession of particular States, and the Acceptance of Con­gress, become the Seat of the Gov­ernment of the United States…

The federal district is not a state, so even in criminal cases, Congress has the power to direct where cases will be tried, if connected with the nation’s capital, the “District” which became “the Seat of the Government of the United States.” If it is true, as is almost certainly the case, that the population has become hyper-partisan, and was so long before “Trump,” then every Republican majority and every Republican Attorney General has been negligent in their sworn duty. It may be that this is just one more issue that took a President Trump to finally start real reform.

My recent recommendations, in “A Bit of Court Discovery,” would be a good starting point. If the problem is deeper than hatred of President Trump and a determination to crush his voter coalition, then every Republican Senator, starting with Senator Lindsey Graham, Chairman of the Senate Committee on the Judiciary, has an obligation to act, to drop heavy hammers on Chief Justice Roberts and start the process of moving all federal cases into a locale with a demonstrably ideologically balanced jury pool. Tweet away, Mr. President!

Published in Law
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  1. Kevin Schulte Member

    DC is a criminal enterprise run by both parties. 

    All those lawyers are making big bucks right at home in the celestial city. The right at homers are not about to sentence there friends with benefits to some god forsaken place (anyplace outside the celestial city) to work. 

    Anything that does not make sense that continues without comment from those operating under it can be attributed to perks of the process. 

    We don’t call it a swamp for nothin.

    Lindsey is just fine with this arrangement thank you very much. 

    • #1
    • February 21, 2020, at 5:44 PM PST
    • 9 likes
  2. DonG (skeptic) Coolidge

    OK, let’s have congress put all those trials in West Virginia. 

     

    • #2
    • February 21, 2020, at 7:01 PM PST
    • 5 likes
  3. Kevin Schulte Member

    DonG (skeptic) (View Comment):

    OK, let’s have congress put all those trials in West Virginia.

     

    Wyoming would be better. 

    • #3
    • February 21, 2020, at 7:26 PM PST
    • 7 likes
  4. Jon1979 Lincoln

    Texas’ Public Integrity Unit had something of a similar conundrum, in that when the legislature created it, oversight was given to the Travis County District Attorney’s Office, because it’s the county the state capitol is located in. And Austin being Austin that meant the PIU was perpetually in control of progressive Democrat district attorneys, who essentially used the power as a political weapon, not just against Republicans, but against Democrats who were on the outs with the DA’s office.

    The thing finally came to a head in 2014, after Travis County DA Rosemary Lehmberg was arrested for DUI, attempted to pull a “Do you know who I am?” on the arresting deputy and jailers, and then refused to resign, and the replacement prosecutor ended up getting a Travis County grand jury to indict not Lehnberg, but Gov. Rick Perry, for trying to cut a deal so she would step down. The legislature took the Public Integrity Unit out of the Travis DA’s office and gave it to the Texas Rangers to oversee.

    The current situation in D.C. goes more to trials than to indictments, though the same dynamic of having the scale tilted completely in one direction stands, and the demographics of the city aren’t going to change any time soon. Which means the only way to have fair trials when the plaintiff/defendant’s conservative ideology is known is to get it out of the D.C. court system. That’s more likely to happen on a case-to-case basis, because unlike the incident with the Perry indictment in Austin, you have neither a high profile enough case to stir outrage, or people overseeing those committing the outrage who care about doing anything about it (and certainly not while the Democrats control the House of Representatives).

    • #4
    • February 21, 2020, at 9:54 PM PST
    • 5 likes
  5. The Reticulator Member

    Your proposal doesn’t sound like a recipe for bipartisan amity or civility.

    • #5
    • February 21, 2020, at 10:23 PM PST
    • 3 likes
  6. Unsk Member

    Brilliant work, Clifford. 

    “Your proposal doesn’t sound like a recipe for bipartisan amity or civility.”

    Is “bipartisan amity or civility” even possible these days?

    • #6
    • February 21, 2020, at 10:52 PM PST
    • 1 like
  7. The Reticulator Member

    Unsk (View Comment):

    Brilliant work, Clifford.

    “Your proposal doesn’t sound like a recipe for bipartisan amity or civility.”

    Is “bipartisan amity or civility” even possible these days?

     Yes, and it’s a big problem. Another term for it is surrender.

    • #7
    • February 21, 2020, at 11:16 PM PST
    • 5 likes
  8. Clifford A. Brown Contributor
    Clifford A. Brown

    Kevin Schulte (View Comment):

    DonG (skeptic) (View Comment):

    OK, let’s have congress put all those trials in West Virginia.

     

    Wyoming would be better.

    I’m arguing for all politically sensitive trials, at least, to be held in districts known to be roughly 50:50 politically, to be swing or marginal districts. Beyond that, I think there may be good cause for moving all trials out of the federal district area, on the theory that it is a large small town, with an extreme case of clannish loyalty. 

    • #8
    • February 22, 2020, at 12:15 AM PST
    • 6 likes
  9. Clifford A. Brown Contributor
    Clifford A. Brown

    Kevin Schulte (View Comment):

    DonG (skeptic) (View Comment):

    OK, let’s have congress put all those trials in West Virginia.

     

    Wyoming would be better.

    I’m thinking more western PA or Ohio.

    • #9
    • February 22, 2020, at 12:17 AM PST
    • 1 like
  10. Clifford A. Brown Contributor
    Clifford A. Brown

    Jon1979 (View Comment):

    Texas’ Public Integrity Unit had something of a similar conundrum, in that when the legislature created it, oversight was given to the Travis County District Attorney’s Office, because it’s the county the state capitol is located in. And Austin being Austin that meant the PIU was perpetually in control of progressive Democrat district attorneys, who essentially used the power as a political weapon, not just against Republicans, but against Democrats who were on the outs with the DA’s office.

    The thing finally came to a head in 2014, after Travis County DA Rosemary Lehmberg was arrested for DUI, attempted to pull a “Do you know who I am?” on the arresting deputy and jailers, and then refused to resign, and the replacement prosecutor ended up getting a Travis County grand jury to indict not Lehnberg, but Gov. Rick Perry, for trying to cut a deal so she would step down. The legislature took the Public Integrity Unit out of the Travis DA’s office and gave it to the Texas Rangers to oversee.

    The current situation in D.C. goes more to trials than to indictments, though the same dynamic of having the scale tilted completely in one direction stands, and the demographics of the city aren’t going to change any time soon. Which means the only way to have fair trials when the plaintiff/defendant’s conservative ideology is known is to get it out of the D.C. court system. That’s more likely to happen on a case-to-case basis, because unlike the incident with the Perry indictment in Austin, you have neither a high profile enough case to stir outrage, or people overseeing those committing the outrage who care about doing anything about it (and certainly not while the Democrats control the House of Representatives).

    I recall that mess in Texas, as I was commuting there regularly at the time and listening to local media to get a better feel for the state.

    • #10
    • February 22, 2020, at 12:19 AM PST
    • Like
  11. D.A. Venters Member

    I’d have to see a lot more data on this before concluding it is a problem that requires Congressional action along these lines.

    In the vast majority of cases, of course, the jury would have no reason to know the political leanings of the parties. Even in politically sensitive cases, the existing safeguards of the voire dire process – or a change of venue if an impartial jury can’t be seated – should be enough to handle most cases. I know the Stone case has made big news lately, but even with that there is no evidence the jury’s conclusion was politically motivated. The foreperson was very politically involved, but it was a unanimous decision and one of the other jurors has stated that the foreperson was even putting the brakes on them in terms of voting to convict, urging them to be more thorough and careful. So, even if the aggressive prosecution of the case was politically motivated, that is not the jury’s fault. 

    Even if you moved politically sensitive cases to a place with a more politically balanced jury pool, that does not guarantee that the actual seated jury will be 50/50. And if your assumption is that jurors’ analysis of the case will be politically motivated, (which is why you moved the case in the first place) you haven’t fixed that problem – you’ve only made it more likely that the jury will hang, unable to reach a unanimous decision. You’ve also, in a way, implicitly given license to jurors to act politically, saying in effect, “it’s ok to view this through your political lenses because we’ve balanced it out.” This would become another subtle building block of the politically tribal structure that is developing in this country, which if left unaddressed may drown out our traditional civics. I recognize that’s a snowball effect scenario, and I’m always skeptical of those kinds of arguments, but it worries me nonetheless.

    The better answer is to try to get a jury that is apolitical, or will act that way. This brings me back to the voire dire system we already have. 

    • #11
    • February 22, 2020, at 5:50 AM PST
    • 4 likes
  12. cdor Member
    cdor Joined in the first year of Ricochet Ricochet Charter Member

    Better hire Bull if you want a jury that is capable of being convinced you are right. 

    Seriously, this is one more reason to de-centralize the Federal bureaucracy. Get the Departments out of DC. Move them to Charlotte, Tuscon, Kansas City, Butte, Cleveland, Jacksonville,etc. Make the Federal government be of the people and with the people. That would include the FBI, of course.

    • #12
    • February 22, 2020, at 7:06 AM PST
    • 6 likes
  13. The Reticulator Member

    D.A. Venters (View Comment):
    I’d have to see a lot more data on this before concluding it is a problem that requires Congressional action along these lines.

    Our Founders didn’t need to see data about abuse by the states in order to determine that the national capital should not be a part of any state. They understood that it was a bad idea to have a regular city be the state capital, because it would lead to the capital dominating the provinces. Their system worked in balancing out the powers of the states, but it ceased to work when those managing the national government became a self-interested class in themselves, not for steering power to their state of origin, but to their own managerial class.

    Also, I don’t have to see data to determine that Joe Blow, an outspoken, full-time member of the KKK, should not be on a jury that tries a racial lynching case. Maybe Joe Blow could put aside his prejudices and be as fairminded as the rest of them, but I don’t want to take that chance. He should not be on the jury.

    Similarly, I don’t need to see data showing that a swamp creature let his self-interest cloud his judgment when sitting on a jury in the case of the swamp vs. the enemies of the swamp. I don’t want swamp creatures deciding those cases.

    So I don’t see that “data” are required.

    • #13
    • February 22, 2020, at 7:13 AM PST
    • 5 likes
  14. D.A. Venters Member

    The Reticulator (View Comment):

    D.A. Venters (View Comment):
    I’d have to see a lot more data on this before concluding it is a problem that requires Congressional action along these lines.

    Our Founders didn’t need to see data about abuse by the states in order to determine that the national capital should not be a part of any state. …Their system worked in balancing out the powers of the states, but it ceased to work when those managing the national government became a self-interested class in themselves, not for steering power to their state of origin, but to their own managerial class.

    Also, I don’t have to see data to determine that Joe Blow, an outspoken, full-time member of the KKK, should not be on a jury that tries a racial lynching case. Maybe Joe Blow could put aside his prejudices and be as fairminded as the rest of them, but I don’t want to take that chance. He should not be on the jury.

    Similarly, I don’t need to see data showing that a swamp creature let his self-interest cloud his judgment when sitting on a jury in the case of the swamp vs. the enemies of the swamp. I don’t want swamp creatures deciding those cases.

    So I don’t see that “data” are required.

    The problem with someone like Joe Blow being in the KKK is already handled by the voire dire process, venue rules, and case law dealing with the racial makeup of juries in historically racist areas. If that problem can be handled without Federal legislation sending trials all over the place, I think those same practices and rules can handle the vague notion that a DC jury may be biased. If there were data showing that politically conservative parties disproportionally lose jury trials in DC, showing that you can’t handle it on a case by case basis, maybe something more is needed.

    Also, it is no small thing to impose a trial on another jurisdiction. There are costs involved. It would be a problem for the judicial resources of the West Virginia or Wyoming districts to throw a bunch of jury trials at them. They clog up the dockets and impose a burden on locals who want their cases to move through, not to mention the burden of jury service. It’s one thing if the cases originate in that district. It’s another to wantonly make that district handle another one’s problems. Point is, there needs to be a clear problem in order to impose this solution – hence, again, the need for data.

    If your assumption is that, simply because someone lives in DC they are a “swamp creature” incapable of impartially considering a legal case…I don’t know what to tell you, other than get some data to back that up. Otherwise, you just sound like someone with their own biases to worry about. 

    • #14
    • February 22, 2020, at 8:55 AM PST
    • 1 like
  15. I Walton Member

    cdor (View Comment):

    Better hire Bull if you want a jury that is capable of being convinced you are right.

    Seriously, this is one more reason to de-centralize the Federal bureaucracy. Get the Departments out of DC. Move them to Charlotte, Tuscon, Kansas City, Butte, Cleveland, Jacksonville,etc. Make the Federal government be of the people and with the people. That would include the FBI, of course.

    Except for the military which is spread all over and the foreign service, that is spread even further abroad, there is no reason to have any of the Federal Departments in DC. They all deal with real people spread in communities across the US and can’t have relevant knowledge. They have to make it up as they go along and no matter how serious and full of integrity, they make it up so it fits their interests. What on earth else would one expect?

    • #15
    • February 22, 2020, at 1:34 PM PST
    • 2 likes
  16. Clifford A. Brown Contributor
    Clifford A. Brown

    D.A. Venters (View Comment):

    The Reticulator (View Comment):

    D.A. Venters (View Comment):
    I’d have to see a lot more data on this before concluding it is a problem that requires Congressional action along these lines.

    Our Founders didn’t need to see data about abuse by the states in order to determine that the national capital should not be a part of any state. …Their system worked in balancing out the powers of the states, but it ceased to work when those managing the national government became a self-interested class in themselves, not for steering power to their state of origin, but to their own managerial class.

    Also, I don’t have to see data to determine that Joe Blow, an outspoken, full-time member of the KKK, should not be on a jury that tries a racial lynching case. Maybe Joe Blow could put aside his prejudices and be as fairminded as the rest of them, but I don’t want to take that chance. He should not be on the jury.

    Similarly, I don’t need to see data showing that a swamp creature let his self-interest cloud his judgment when sitting on a jury in the case of the swamp vs. the enemies of the swamp. I don’t want swamp creatures deciding those cases.

    So I don’t see that “data” are required.

    The problem with someone like Joe Blow being in the KKK is already handled by the voire dire process, venue rules, and case law dealing with the racial makeup of juries in historically racist areas. If that problem can be handled without Federal legislation sending trials all over the place, I think those same practices and rules can handle the vague notion that a DC jury may be biased. If there were data showing that politically conservative parties disproportionally lose jury trials in DC, showing that you can’t handle it on a case by case basis, maybe something more is needed.

    Also, it is no small thing to impose a trial on another jurisdiction. There are costs involved. It would be a problem for the judicial resources of the West Virginia or Wyoming districts to throw a bunch of jury trials at them. They clog up the dockets and impose a burden on locals who want their cases to move through, not to mention the burden of jury service. It’s one thing if the cases originate in that district. It’s another to wantonly make that district handle another one’s problems. Point is, there needs to be a clear problem in order to impose this solution – hence, again, the need for data.

    If your assumption is that, simply because someone lives in DC they are a “swamp creature” incapable of impartially considering a legal case…I don’t know what to tell you, other than get some data to back that up. Otherwise, you just sound like someone with their own biases to worry about.

    The “no evidence” gambit is the same as has been used to prevent real election fraud prevention. When the norm in the community is to physically hound opponents out of restaurants, any jury drawn from that community faces enormous pressure, even if they are closet conservatives. 

    Your point about case loads is a good one. Of course, there are two obvious solutions: (1) assign cases across the country in politically balanced districts, on a rotating basis, thus ensuring juries, including grand juries, are drawn from communities without an overwhelming cultural pressure to take sides on everything based on ideology; (2) disperse the agencies across the country so that jurisdiction for each agency or department of a larger agency is located in a different town, with a population not centered on Team Administrative State or Team DNC.

    • #16
    • February 22, 2020, at 1:41 PM PST
    • Like