When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.
What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.
While you place your order, I'll share a few posts which are worth your attention.
The announcement this week by Attorney General Holder that the Department of Justice would no longer defend the constitutionality of the Defense of Marriage Act (DOMA) prompted a number of posts concerning the decision's import and legitimacy. What exactly is the Administration's new position on the Act, which permits states to refuse to recognize same-sex marriages performed in other states? Is the announcement, to borrow the words of Vice-President Biden, a big fucking deal? Does this act amount to a dangerous power-grab by the Executive Branch? The answers offered by various legal bloggers varied and didn't divide along the usual political lines.
I share Ted Frank's reservations about Holder's change in position — the result is a worthy one, but the methods set an ominous precedent:
I'm not a fan of the Defense of Marriage Act, but I do have a large problem with the politicization of the role of the Department of Justice. Strip away the gay-rights issue and consider the question: what would Democrats say if, in 2013, President Sarah Palin announced that her Department of Justice would refuse to defend the constitutionality of Obamacare in court?Initially, Orin Kerr had similar thoughts, which he explained in another post:
In my view, the basic problem with the Obama Administration’s position on the DOMA litigation is the same problem we had in the Bush Administration with its adoption of John Yoo’s theories of Article II. Recall that John Yoo’s theories of Article II power rested on a highly contested set of views about Article II power. By adopting a contested constitutional theory inside the Executive Branch, the Bush Administration could pursue its agenda without the restrictions that Congress had imposed. In effect, the simple act of picking a contested constitutional theory within the Executive branch gave power to the Executive Branch that none of the other branches thought the Exeutive Branch had (and which laws like FISA had been premised on the Administration not having). It was a power grab disguised as academic constitutional interpretation.Though he didn't go so far as to endorse the Administration's position, Kerr subsequently wrote that his objections were more moderate, considering that someone is likely to defend the law even if Holder's DOJ will not:
Now, I wouldn’t in a million years compare torture and wiretapping with gay rights. Obviously, the subject matter is totally and completely different. But there’s an interesting analytical similarity between the DOJ’s position on DOMA and the Bush Administration’s reliance on its Article II theories.
Instead of requiring DOJ to defend the constitutionality of all federal statutes if it has a reasonable basis to do so, the new approach invests within DOJ a power to conduct an independent constitutional review of the issues, to decide the main issues in the case — in this case, the degree of scrutiny for gay rights issues — and then, upon deciding the main issue, to decide if there is a reasonable basis for arguing the other side. If you take that view, the Executive Branch essentially has the power to decide what legislation it will defend based on whatever views of the Constitution are popular or associated with that Administration. It changes the role of the Executive branch in defending litigation from the traditional dutiful servant of Congress to major institutional player with a great deal of discretion.
In thinking over my reaction from yesterday, some of the feedback I’ve received has me somewhat less concerned than I was yesterday about the Obama Administration’s approach. In particular, it seems that everyone seems to think that, somehow, someone will be available to defend a law when the Administration declines to to do. It’s not entirely clear to me how this happens when an Administration declines to defend a law in the District Court, as opposed to the Supreme Court: The key problem is how to get the case up to the Supreme Court, which isn’t presented when the Administration defends the law in the lower courts. But if everyone agrees that this will happen somehow, then the Administration’s decision is a lot less significant, and therefore less worrisome from a standpoint of long-term impact, than I had thought.Kerr's co-blogger, Ilya Somin suggested that the change in position was hardly revolutionary or even as dangerous as others had argued:
I’m not a fan of either the Obama Administration or some of the legal arguments they have made in support of the claim that DOMA is unconstitutional. But I do think that they made the right call here. If a President genuinely believes that a federal statute is unconstitutional he has a duty not to defend it.Dave Hoffman argued that the Administration's decision wouldn't lead to disaster for the health care mandate under a future Republican administration, because it'd be doomed anyhow:
The president takes an oath to “preserve, protect, and defend” the Constitution. His duty to uphold the Constitution supersedes his obligation to enforce federal statutes when the two come into conflict. After all, federal statutes are only legitimate in so far as they are constitutional. One of the greatest threats to the Constitution is the enactment and enforcement of unconstitutional laws that exceed the powers of government.
Ever since George Washington, presidents have exercised their own judgment in assessing the constitutionality of federal laws, and have not simply deferred to the courts or to Congress. Each branch of government has an independent responsibility to assess the constitutionality of current and proposed laws. This is not incompatible with the duty of the president or Congress to obey judicial decisions that strike down a statute, since the Constitution gives the courts jurisdiction over all cases arising under it. But if the courts haven’t yet ruled on the issue, nothing prevents the president or Congress from making a considered independent judgment that the statute is nonetheless unconstitutional and acting accordingly.
Many of the critics of Obama’s decision cite the danger that allowing presidents to refuse to defend statutes they consider unconstitutional would allow them to negate any laws the administration happens to disagree with, simply by not arguing for them in court. This is a reasonable concern. But I think it is overblown.
The fact that the administration chooses not to defend a federal law doesn’t mean that it won’t have other able defenders. In practice, virtually any significant federal law is likely to be supported by states and/or private parties who have standing to intervene.
Indeed, supporters of a challenged law should prefer that its defense be handled by a party that is genuinely committed to it, rather than a hostile Justice Department that is only litigating the case because they believe they can’t get out of it.
[I]t’s basically impossible to imagine a Republican President elected in 2012 who would be willing to allow his DOJ to defend the mandate in any circumstance. That would be true if Obama had defended DOMA proudly, holding-his-nose, or (as the case may be) not at all.While the prospects for Obamacare are undeniably bleak if the Democrats lose power, I'm not sure I'd agree that it's "basically impossible" that a Republican administration would defend the law; in recent years they've done so with other laws which angered the rank-and-file or were believed unconstitutional by key advisors. Whether they defended them "proudly" or "holding their noses" I can't say, but defend them they did.
At any rate, considering the case at hand, legal bloggers on both the right and left suggested that the declaration from AG Holder was likely to tilt the balance in the courts. Dale Carpenter noted the President's previous opposition to same-sex marriage and the effect his change of mind will have:
It was hard, even yesterday, to concoct a constitutional defense of traditional marriage in a world where [the] standard justifications (about procreation and child-rearing) had been rejected as unrelated to a ban on same-sex marriage. At most, I think, one might have said yesterday that the DOMA challenges involved federal refusal to recognize actual same-sex marriages while granting full recognition to opposite-sex marriages. But, one might have argued, a federal court decision holding that DOMA was unconstitutional did not necessarily mean states would be constitutionally required to recognize SSMs.Jack Balkin called the same-sex marriage litigation post-announcement "a whole new ballgame":
The DOJ’s new position withers even that thin reed. The AG’s letter makes several key points clear. First, limiting marriage to one man and one woman discriminates on the basis of sexual orientation, a conclusion many courts have resisted by offering that gay people are still free to marry opposite-sex partners. Second, the DOJ now believes that all discrimination on the basis of sexual orientation should be subject to some heightened scrutiny (specifically, intermediate scrutiny), not simply rational basis review.
Under these conditions, it becomes much more likely that DOMA will be struck down by at least one federal Court of Appeals-- possibly the Second Circuit, where the latest cases are being brought--and therefore even more likely that DOMA will be struck down when it finally gets to the Supreme Court.However, Balkin's co-blogger Jason Mazzone wrote that the Administration's change in position was a more modest one than it might at first appear and, moreover, that it's unlikely to be decisive for the courts:
Why is that? Why does a change in the official position of the Administration matter to federal judges? The answer is that when the President and the Justice Department change their minds publicly and take a new constitutional position, it gives federal courts cover to say that their decisions are consistent with the views of at least one of the national political branches. Agreeing with the President appears less countermajoritarian, even if other parts of the federal government (and the various states) disagree.
Nothing is certain. But this announcement is very, very important as a symbolic matter. It signals an important change in America's constitutional culture. The Presidency has put itself on the side of constitutional equality for gays and lesbians. This is perhaps even more significant than the Bush Administration putting itself on the side of an individual right to bear arms, a position that was, by 2001, already widely accepted in the general public.
Moreover, the fact that the Administration has now taken the position that discrimination based on sexual orientation is subject to heightened scrutiny means that federal courts will increasingly feel able to hold unconstitutional state laws that limit marriage only to opposite sex couples.
[T]he actual position of the DOJ (which will remain in the case) is that if the courts agree with the government that heightened scrutiny is the appropriate standard, then the plaintiffs should prevail because section 3 of DOMA does not satisfy the heightened scrutiny test.Dahlia Lithwick explained the basis for the Administration's new "middle way" approach:
Whether the district courts (and the Second Circuit) will apply heightened scrutiny is an open question. Following the lead of other courts, they might conclude that rational review applies. If so, the government's position is that section 3 is constitutional under the rational standard.
As Walter Dellinger, acting solicitor general in the Clinton administration, has explained: "The government has an obligation to comply with the nation's laws, regardless of whether the president agrees with a particular statute. Doing otherwise would also set a precedent justifying similar nullifications by future administrations." The alternative, according to Dellinger, would be to have every president nullify the laws passed by his predecessors by simply declining to appeal adverse rulings.One person's evolving legal position is another's gamble, it seems, and a" gamble" is how Mazzone characterized the DOJ's new stance:
Dellinger's proposed middle way—in the context of the October court rulings striking down the military's "Don't Ask, Don't Tell" policy—was to have the administration continue to defend the law formally in the courts while suggesting reasons the courts should strike the law down. This has happened before: The Clinton administration both enforced and argued against a discriminatory HIV policy in the military in 1996, and the law was repealed. That's precisely what the administration opted to do with DOMA on Wednesday.
The real sea change here is that Obama can finally claim, as his attorney general did today, that the winds of change have shifted since 1996. "The Supreme Court has ruled that laws criminalizing homosexual conduct are unconstitutional," writes Holder today. "Congress has repealed the military's Don't Ask, Don't Tell policy. Several lower courts have ruled DOMA itself to be unconstitutional." Obama can now openly state that his views on gay marriage are "evolving" as Holder admits that "recent evolutions" in gay rights law have influenced this change.
The president seems to have finally acknowledged a truth played out at the Proposition 8 trial in California last summer: Virtually all of the arguments advanced to deny gay couples the right to marry are based on moral animus and junk science, rooted in discredited cases like Bowers v. Hardwick and in unfounded bias that is increasingly hard to defend in open court.
My students are often surprised that after we work our way through the equal protection cases, the Supreme Court's own list of suspect classes is very short. Students sometimes ask if we just didn't cover a whole set of cases. No, I tell them, this is all there is. Students also suggest the Court is simply slower in identifying all of the groups who merit special judicial protection and there are surely more cases to come. My response is that there is in fact very little likelihood that the Court will hold that a classification involving any additional group triggers a heightened form of scrutiny.
Accordingly, I teach my students that in arguing cases (or, of more immediate concern to them, answering an exam question), they are unlikely to prevail if they argue for recognition of a new suspect class in accordance with footnote 4's framework.
I think the argument for heightened scrutiny will fail. I do not see five votes at the Supreme Court for deeming all classifications based on sexual orientation to trigger heightened review.
Holder's approach therefore represents a real gamble. Conceding that section 3 of DOMA survives rational review, the Administration is counting on the courts (and ultimately the Supreme Court) taking the unlikely step of deeming gays and lesbians a suspect class--and invalidating section 3 on that basis.
This is one of those instances where I'm pleased with the ends but unsettled about the means. I'm no great fan of the current administration or its Justice Department, but I'm glad to see them adopt what I think is the right position on DOMA despite the President's previous opposition to same-sex marriage. Anything which speeds the end of this new "separate but equal" legalization of discrimination counts as a "good" in my estimation. I wonder, however, whether Holder's "gamble" purchases that good at too high a price.
If it provides cover for future administrations to "veto" earlier legislation, this would unsettle our system of laws and tilt the balance of power amongst the three branches (and within the Executive from one administration to another) in ways the Constitution does not intend. On same-sex marriage, I'm confident that we'll soon arrive at a place where all can enjoy equal marriage rights; we just need to watch our step as we cover the short distance remaining between here and there. Future generations will wonder why it took us so long to come to our senses on this important civil rights issue, but they certainly wouldn't thank us for upending the Constitution in an eleventh-hour rush to get on the right side of history.
"Jury nullification" refers to the concept that jurors who believe that the facts in a case support one side can nonetheless choose to vote their consciences when they believe that the law itself is wrong. Generally, though not always, the term is used to refer to a juror's vote to acquit where he or she believes that a criminal law is wrong or that the prosecution should not have been brought. It's one of the more intriguing philosophical debates I recall from my law school years.
On the one hand, broadly speaking, there's something appealing about the idea of jurors collectively or individually acting as a last safeguard against an all-powerful State. On the other, there's a sense that if we are to be a nation of laws rather than men, we can't abide someone playing by an entirely different set of rules in the jury room. There are more (and more nuanced) arguments than these, of course (and, frankly, more passionate advocates on both sides). Notwithstanding, at the Popehat blog recently, Ken wrote that high-minded philosophy probably doesn't figure into the equation for most nullifying jurors; he also cautioned that even if it can be a "last safeguard", nullification can also be a vehicle for juror prejudices:
In my experience, jurors already do exactly what they want to do, and create justifications and rationalizations for doing so. Many jurors form their impression of how the case should come out during opening statements, and then implement their preference during deliberations.Though the nullification concept makes for a good debate, particularly amongst over-serious and over-served law students, it only rarely seems to make the news. Is it less common in practice than in political debate? Are prosecutors particularly good at sensing during voir dire which people are sympathetic to nullification arguments and challenging accordingly? Is it simply that jurors who act to nullify don't recognize that they're doing so, believing instead that "their gut" told them that the facts were something other than what the evidence showed? Is nullification actually a widespread occurrence and the sanctity of jurors' deliberations and verdict covers it? Perhaps it's all of the above, perhaps it's none.
The justifications and rationalizations are not always polished. Any trial lawyer who has ever interviewed jurors after a verdict will tell you that their explanations of their thought processes can range from inexplicable to bizarre to terrifying. And that’s when you’re talking to jurors who found in your favor.
So I think that jury nullification advocates are offering people a rationalization for doing something that they are already doing just fine by themselves. Jurors are going to continue to acquit sympathetic defendants facing overwhelming evidence, and convict unsympathetic defendants based on weak evidence.
It’s odd, though, that jury nullification advocates tend to present nullification as a bulwark against government tyranny. Nullification is tyranny-neutral. Ask anyone who has ever tried to convict a cop of using excessive force, or defend someone accused of “resisting arrest” or “assault on a police officer” in the course of being subjected to such excessive force. Nullification can lead to conviction as easily as it can lead to acquittal. Even were that not the case, acquittal is not inherently anti-tyranny. Tyrants, petty and great, can (rather occasionally) be put on trial, and their acquittal can be a blow for tyranny, not against it. Nullification is a mirror of juror prejudices, and plenty of jurors are prejudiced in favor of the state, in favor of “safety.” That’s why defense lawyers are not unanimous fans of nullification.
Still, whenever jury nullification gets discussed, I always find myself listening. It remains a fascinating concept and I seem to retain just a bit of that drunken, philosophical law student nature, many sober years afterward. Thus it was that I found my attention drawn by a series of posts over the last month concerning Julian Heicklen, an activist with the "Fully Informed Jury Association". Initially, it was Brian Doherty who wrote about Heicklen's activism in New York and the efforts of a Florida court to curb the activities of those like Heicklen who encourage jurors to consider nullification. Doherty revisited both the New York and Florida stories mid-month, when Heicklen was arrested for his leafletting activities, and this past week when the New York Times picked up the story and brought wider attention to both Heicklen's case and to the jury nullification argument more generally:
Since 2009, Mr. Heicklen has stood [outside the federal courthouse in New York City] and at courthouse entrances elsewhere and handed out pamphlets encouraging jurors to ignore the law if they disagree with it, and to render verdicts based on conscience.Setting aside Heicklen's own motivations and preferences (the Times account and others paint him as something of a crank), the arguments made by the federal prosecutors in New York and amongst legal bloggers concerning the anti-nullification efforts there and in Florida are worth reviewing. Ashby Jones pre-gamed the Heicklen prosecution and suggested that prosecutors would have an uphill battle on First Amendment grounds:
That concept, called jury nullification, is highly controversial, and courts are hostile to it. But federal prosecutors have now taken the unusual step of having Mr. Heicklen indicted on a charge that his distributing of such pamphlets at the courthouse entrance violates a law against jury tampering.
“I don’t want them to nullify the murder laws,” he said. “I’m a big law-and-order guy when it comes to real crime.”
But, he said, there were other laws he wanted to nullify, like drug and gambling laws.
So how’s the case likely to unfold?Eugene Volokh offered a more detailed analysis of the First Amendment concerns:
“This is classic political advocacy,” said Christopher T. Dunn, associate legal director of the New York Civil Liberties Union, to the NYT. “Unless the government can show that he’s singling out jurors to influence a specific verdict, it’s squarely protected by the First Amendment, and they should dismiss the case.”
On the other hand, Daniel C. Richman, a former prosecutor who teaches criminal law at Columbia, said the government does indeed have a compelling interest here — keeping intact the integrity of the jury process. “The government has to walk a fine First Amendment line bringing these charges,” he said, “but lawless jury behavior is certainly of concern to it, too.”
Under Brandenburg v. Ohio (1969), even advocacy of criminal conduct is constitutionally protected unless it’s intended to and likely to cause imminent criminal conduct by the audience (as opposed to criminal conduct at some unspecified time in the future, see Hess v. Indiana (1973)). It follows that advocacy of noncriminal conduct would be at least as protected. And here Heicklen (and others like him) are simply encouraging noncriminal conduct at some unspecified time in the future — when there’s plenty of opportunity for counterspeech by the judge (a much more authoritative figure than Heicklen).Jason Mazzone suggested that even without the First Amendment challenges, the Heicklen prosecution is likely to fail. In addition to the ironic possibility that Heicklen's own jury would nullify, Mazzone identified two statutory hurdles for the prosecution:
To be sure, the Court has often asserted that even speech that falls outside the First Amendment exceptions — such as the Brandenburg incitement exception — can be restricted by laws that are “narrowly tailored” to a “compelling government interest”....
If speech urging jurors to do supposedly bad things can be restricted, even outside the narrow Brandenburg boundaries, on the grounds that there’s a compelling interest in preventing jury nullification, so speech urging others to do worse things — such as commit crimes — could be restricted on the grounds that there’s a compelling interest in preventing those crimes (and note that there is a clearer opportunity for counterspeech as to pro-jury-nullification speech than there is for much pro-crime speech). And that would mean that Brandenburg would in practice become an illusory protection for speakers.
First, as the statute makes clear, there needs to be an actual juror Heicklen attempted to influence.... [T]he government says that it has somebody who at the time he received one of Heicklen's pamphlets was serving as a juror in the SDNY. We'll have to wait to see who that juror is and the circumstances under which he received Heicklen's pamphlet.Though it will be interesting to see how things play out for Mr. Heicklen, I'm a bit apprehensive that his is the case to test some of these issues (at least for now). News reports indicate that, though counsel has been appointed to "assist" him, Heickel is acting as his own attorney in the matter; in terms of understanding and reacting appropriately to the allegations against him, Heicklen hasn't demonstrated thus far that he's up to the task.
The second hurdle the government faces is that the statute requires that Heicklen have written or sent to the juror a communication relating to a matter before the jury. It's not at all clear that handing out a pamphlet advocating that jurors vote their conscience constitutes sending a juror a communication relating to the matter the juror is deciding. The indictment states only that Heicklen "distributed pamphlets." There is no indication that Heicklen targeted individual jurors or thrust the information into their hands, or that the pamphlets contained anything more than general information about jury service.
There are worthy arguments to be made for his position, if only he can manage to make them or allow them to be made on his behalf. Any of the posts linked in this section would give his side a fine start. It really would be a shame if after years of advocacy on this issue, Heicklen's case offers an opportunity to advance the ball for this cause and he scores an own goal.
One abiding characteristic of the legal blogosphere is the tendency for even the most innocuous subjects to start an argument. It's noteworthy then when so many of the legal bloggers whom I follow are united in their sentiments about something. I don't know if I'll ever see Jeff Gamso, Scott Greenfield, Dan Hull, Jamison Koehler, and Elie Mystal agree about anything else in the foreseeable future, so I'm not going to let this moment pass without mention.
Thanks to Megan, a student at the University of Miami law school, these legal blogosphere stars aligned this past week. Megan was the spokesperson for, if not the sole originator of, a "Student Bill of Rights" which circulated recently. Though the Founding Fathers managed only ten articles in their Bill of Rights (now known as "that other bill of rights"), Megan and her compatriots came up with eleven; these included such worthies as rights "to take exams that proportionally cover the material discussed in class and presented in the required reading" and "to not have the composition of their grade changed from what appears on the syllabus... [if] the majority of the students do not support the measure". Jeff Gamso focused on a couple of other provisions in comparing-and-contrasting the Student Bill of Rights with that other bill of rights:
First Amendment:While allowing that the law school experience isn't always a fair one and the academy certainly has its issues, Scott Greenfield wrote that the students demonstrated a poor understanding of both the real world beyond academia and their future position in it as legal professionals:Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.Law Students' first item:The right of students to be given an unbiased legal education shall not be infringed.Hmmm.
I sense a difference in gravitas.
And then there's the difference between actual rights and a fantasy of entitlement.
Or how about the eighth items.Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.OK, sure. We can argue at length about what is and isn't "excessive" or "cruel and unusual" and how you decide. But it's important stuff. Now, put that up against this.In class, students shall not be expected to know material that was not covered in the assigned reading for that day's class, nor covered in any of the lectures and/or assigned readings prior to that day's class.That's a good rule since no judge will ever ask a question that wasn't covered in the research that was provided the lawyer prior to the hearing.
Wait? That's not how judges operate? Damn. All these years.
Despite her year and a half in law school, Megan somebody says that "she's yet to be satisfied with her legal education." I was heartened to hear that, since her satisfaction is important to me and lawyers everywhere. Go Megan somebody!Jamison Koehler tried to find a way to put the students' misguided effort in a more favorable light, but was at a loss:
Unfortunately, her "frustration" wasn't that shared by the legal profession relating to the quality of education and its relevance to the practice of law. Rather, it was the lack of control by law students, left to the "whims" of professors "because the system doesn't provide law students with resources in which to keep professor behavior in check."
Poor Megan somebody isn't going to be happy when she learns that she's not going to be able to keep judge's behavior in check either. To the extent there's any point to a legal education, at least she's learning that frustration at being subject to the whims of others is part of the job.
Like Megan, I share concerns about lawprofs' whims, particularly given that their focus on their scholarly interests often does little to prepare students to practice law. There are demands that I would support, like bringing the theoretical back to earth, and expecting applicability of the lesson to the courtroom rather than a lawprof's pie-in-the-sky anticipation of what they think the law ought to be. Students don't attend law school to ponder the majesty of the theoretical, but to learn how to be lawyers.
But as much as I'm troubled by leaving such decisions in the hands of lawprofs, I would much prefer that than putting into the hands of law students, especially students whose primary concern is limiting the scope of their studying to what will get them to happy hour on time.
Contrarian that I am, I wish I could take this opportunity to leap to the defense of this generation of young Americans – the Generation Yers — who have been the subject of much ridicule in the blawgosphere. I could note how unfair it is to criticize an entire generation of people based on the foibles of a few. I could point out that such labeling is not only personally offensive, it is also entirely unjustified.Dan Hull, who is jointly-credited with Scott Greenfield for coining and popularizing the term "Slackoisie" in reference to self-entitled Millenial and Gen Y lawyers and law students, was even more dismissive:
Sadly, I am not able to summon my normal level of sanctimony and self-righteousness in this case; the young woman in this video displays the very naivete, self-absorption, laziness and sense of entitlement that people have been complaining about with respect to this generation.
The proposed list of rights combines the trivial with, well, the trivial.
"All about me, 24/7". Would you trust her with a Client for 5 minutes?Elie Mystal can usually be relied-upon to at least appreciate the concerns and views of the younger folks entering the profession, even if he's not always sympathetic. Not this time:
Sorry, Sweetie, but you're in training to be a Servant--not a Grand Dame. Can you imagine this young person in a few years with any good clients that stick?
Usually I’m happy to stand with law students against the slings and arrows of outrageous law school administration.After a London Magistrate's Court ordered the extradition of Wikileaks founder Julian Assange to Sweden to face criminal charges, Carl Gardner outlined his options for appeal. David Allen Green explained that the court's focus was simply to determine whether a valid European Arrest Warrant (EAW) was issued by Sweden. Still, Assange's legal team didn't help their case:
But not this time. This time, instead of a noble law student fighting the good fight, I see an annoying whiner who wants law school to be about teddy bears and rainbows.
The proposal lists a number of things that “shall not be violated.” Even though I agree with some of these points, codifying them as “rights” makes me flaccid. We’re talking about law school, not summer camp. It’s supposed to be hard. It’s not supposed to be fair.
In [Swedish lawyer Bjorn] Hurtig's "proof" (or prepared) witness statement, he had said "astonishingly [the prosecutor] made no effort to interview [Assange] on the rape charge to get his side of the story" whilst Assange was still in Sweden. This was a highly important statement, but it was completely untrue. Indeed, in the sort of criticism rarely made by an English judge, it was held that Hurtig had deliberately sought to mislead the court on this point. The effect of this was catastrophic for the Assange case: not only did it discredit Hurtig, but the two key legal experts relied upon by Assange had wrongly based their expert evidence that the EAW should not have been issued on Hurtig's false claim.Gardner and Green joined guest Joanne Cash, a human rights lawyer and former Member of Parliament, for the first of Charon QC's "without Prejudice" legal podcasts. Along with the Assange extradition decision, the quartet covered other topics during their lively discussion. It should be noted that this new podcast series is in addition to, not in lieu of, Charon's many other podcasting endeavors. His latest series of twenty podcasts on the legal profession is also underway, with Naked Lawyer author Chrissie Lightfoot as his guest in the initial episode.
[U]nless the defence prevails at appeal, or some extraneous event occurs, Assange will be extradited to face questioning by the Swedish prosecutor over these undeniably serious allegations. He may then be charged and tried. That should not be prejudged. Assange is entitled to the benefit of due process.
But the simple fact is that Assange is being extradited because a valid EAW was issued and served for serious alleged offences, and that there was nothing in the particular circumstances of this case to prevent the EAW being implemented.
Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., European Court of Human Rights, Zazzle, and Paris Odds n Ends Thrift Store.