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By Tom Cushing

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About this blog: The Raucous Caucus shares the southpaw perspectives of this Boomer on the state of the nation, the world, and, sometimes, other stuff. I enjoy crafting it to keep current, and occasionally to rant on some issue I care about deeply...  (More)

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Torches and Pitchforks 52 Rule of Law 47

Uploaded: Mar 6, 2014
By what passes for standards in today's Senate, Thurgood Marshall would be a pariah. Born into modest circumstances and barred by his race from admission to the U. Maryland Law School that now bears his name, Marshall rose to lead the NAACP Legal Defense Fund, argue the then-controversial Brown v. Board of Education case and many others, get confirmed to the US Court of Appeals over serious and sustained opposition, and, six years later, to the US Supreme Court. Debo Patrick Adegbile shares much of that path – except for the confirmation part.

This week, the Senate denied Adegbile an appointment to head the Justice Department's Civil Rights Division. The basis? He's good at his job. The same NAACP Legal Defense Fund under his leadership filed an amicus brief and later represented Mumia Abu-Jamal, a convicted Philadelphia cop-killer sentenced to death for his crime.

The defense argued that the jury instructions and verdict sheet were flawed, such that the jury believed it was precluded from considering any mitigating circumstances in the death penalty phase of his trial. They succeeded, before the US District Court, and twice before the Court of Appeals. Abu-Jamal's sentence was commuted to life imprisonment, without prospect of parole. For the record, the NAACP also backed maintaining the Voting Rights Act in a case (Shelby County) Mr. Adegbile argued before the Supreme Court, and advocated for continued race-conscious college admissions (Fisher v. U. Texas).

There may be little factual doubt that Abu-Jamal, who is black, committed the crime. There was and is doubt, however, that he received a Constitutionally fair trial. Adegbile's team did what defense lawyers are supposed to do, and they succeeded. And for that, he's been denied the opportunity for further service to his chosen cause at DOJ.

Angered by the unpopular Abu-Jamal case outcome, the Fraternal Order of Police (FOP) mounted a furious campaign to deny his confirmation. In an intemperate letter to the President opposing the nomination, they wrote:

"We are aware of the tried-and-true shield that activists of Adegbile's ilk are wont to hide behind -- that everyone is entitled to a defense; but surely you would agree that a defense should not be based on falsely disparaging and savaging the good name of a lifeless police officer."

The letter went on to say that the FOP thought they should have been consulted on the appointment – one that nearly by-definition brings the appointee's division of the DOJ into conflict with the actions of various local authorities.

Now, in a saner environment – say, the one that prevailed in the 1960s when Marshall was being vetted, the FOP's fulminations could have been dismissed as those of a blood-lusty sore loser. Neither the convict's guilt, nor Faulkner's character, after all, were directly in-issue, Abu-Jamal will never again walk the streets of Philadelphia, and the legal system is now marginally fairer to defendants. Not so this year, however, as seven Dems crossed the aisle to join a unanimous GOP opposition.

What standard is supposed to guide Senators in their "Advice and Consent" confirmation deliberations? The clubby traditions of the Senate do not provide a succinct answer, nor must the Senators defend their votes in any way. Some have argued for a co-equal role of the Senate on the merits of the picks, but the appointment power is contained in the Constitutional Article II that defines Executive branch functions and powers, thus strongly implying Presidential initiative and primacy.

I would also argue (and have, elsewhere in these epistles) that there's a huge difference between Executive and Judicial Branch appointments, the former being the Prez's draft choices to serve on his team, and report to him for the duration of his limited term(s). The inquiry there ought to go only to qualifications and general integrity. By contrast, judicial appointments interact directly with the governed, and many are life sentences, although parole is possible. Accordingly, a broader inquiry may be made, although canny appointees have learned how to foil those processes by clamming-up.

Nobody here was arguing that Adegbile, an NYU law grad who came-up from single-parent poverty, was unqualified. His career record demonstrates high achievement in two the country's greatest mega-law firms (Morrison Foerster, and Paul Weiss) -- indeed, it was the very quality of his team's advocacy that doomed his appointment. The GOP solons voted as a bloc in opposition, as expected and required by their leadership. The 7 Dems, however, had ulterior motivations that had little to do with the candidate's capabilities.

Sen. Manchin (WVA) called it a "vote of conscience" without elaboration. Sen. Pryor (AR) and others face tough re-election bids in states where Mr. Obama is unpopular. And Sen. Chris Coons of my old Delaware stomping grounds said in a statement:

"The vote I cast today was one of the most difficult I have taken since joining the Senate, but I believe it to be right for the people I represent. ... The decades-long public campaign by others to elevate a heinous, cold-blooded killer to the status of a political prisoner and folk hero has caused tremendous pain to the widow of Philadelphia police officer Daniel Faulkner and shown great disrespect for law enforcement officers and families throughout our region. These factors have led me to cast a vote todaythat is more about listening to and respecting their concerns than about the innate qualifications of this nominee."

Sure, Senator – except as a lawyer, you know better, and comforting the widow, thirty years after the fact, is not your job.

In our adversarial legal system, it is axiomatic that both sides deserve the best advocacy they can muster – especially in capital punishment cases where the might and majesty of the government are arrayed against an individual defendant. It falls to lawyers to provide that defense, whether to a counter-culture minority journalist like Abu-Jamal, recent immigrants (Sacco & Vanzetti), a biology teacher in fundamentalist Tennessee (Scopes), Dr. Sam Shepherd or "the American Taliban." As expressed by ABA President James Silkenat in a recent letter to the Senate Judiciary Committee:

"I was alarmed to learn that there is some opposition to Mr. Adegbile's nomination based solely on his efforts to protect the fundamental rights of an unpopular client while working at the Legal Defense Fund. His work, like the work of ABA members who provide thousands of hours of pro bono legal services every year, is consistent with the finest tradition of this country's legal profession and should be commended, not condemned."

But it won't be celebrated this year, grace of Manchin's conscience, Pryor's ambition and Coons' mistaking his duties to be more to a murdered man's widow, than to the nominee's confirmation process or to the country the Senator was elected to serve. Apparently, unlike Mr. Justice Marshall, Adegbile was born in the wrong decade.

___

Speaking of the American Taliban, he was defended by Morrison & Foerster partner Jim Brosnahan, an impeccable advocate with utterly nothing to prove, or to gain. He acted out of duty to the legal system he serves, and both he and his firm also came under hysterical attack as a consequence. He nearly had to leave "MoFo" under that pressure, and I have little doubt that he would have done so had it really come to that – his Irish was up.

I admire Mr. Brosnahan a great deal, which does not make me a member of any exclusive club, but it does impel me to link this folksy 15-minute talk he gave. It's a kind of romantic reminiscence bred with a TED talk, with undertones of Garrison Keillor. It gives a window into the tickings of a very good man, and is well-worth the time invested in its hearing. Here he is, live, at the Verdi Club on Valentine's Day. Enjoy!

Comments

Posted by Cholo, a resident of Livermore,
on Mar 7, 2014 at 3:27 pm

He is a brilliant man but in the USA that is not enuf:

Web Link


Posted by BF, a resident of San Ramon,
on Mar 7, 2014 at 10:55 pm

From Unfit For Justice:

The facts are clear. On Dec. 9, 1981, Mumia Abu-Jamal brutally murdered 25-year-old Philadelphia Police Officer Daniel Faulkner. Abu-Jamal's guilt has never been in doubt. Four eyewitnesses saw Abu-Jamal shoot Faulkner in the back and then, while the officer was lying helplessly on the ground, shoot several more bullets into his chest and face. Three other witnesses heard Abu-Jamal brag that he had shot Faulkner and hoped the officer died. And when Danny Faulkner's blood-stained shirt was displayed at trial, the jury saw Abu-Jamal turn in his chair and smirk at Faulkner's young widow. So it was no surprise when a Pennsylvania jury took just three hours to convict Abu-Jamal of murder and two hours to sentence him to death.
Read more at Web Link

You have made it very clear Mr. Cushing where you stand when it comes to support for law enforcement. Adegbile's passion for this cold blooded killer made some of your own fellow Dems vote against him. GOOD! Fortunately, sanity prevailed and Adegbile's nomination went in the toilet. Cry away Cushing.


Posted by Cholo, a resident of Livermore,
on Mar 8, 2014 at 3:22 pm

It was indeed tragic that Mumia Abu-Jamal shot and killed Officer Daniel Faulkner.

People have always existed that have decided to kill others. There is a long history of people killing others all over the world and it continues to this day.

I don\'t agree that the presentation of this story necessarily means that Mr. Cushing is not supportive of our laws. You may have an inkling of where he stands but I don\'t believe that his stance in this brief article means that you can conclude where he stands when it comes his support of law enforcement or the law of the land.

Lawyers that defend the accused are often passionate during their defense of somebody that is perceived as guilty. That is their job and it\'s our task to observe the proceedings and discuss our opinions. I have observed numerous attorneys intentionally harm others during a trial while protecting their clients. It happens.

The nomination ended up going nowhere. I believe that he could have done an excellent job.


Posted by Dave, a resident of Danville,
on Mar 8, 2014 at 3:28 pm

Sorry, BF, you are wrong. Attorney are REQUIRED to "zealously" represent their clients. Not represent them "half-heartedly." And not bow to public pressure to leave unpopular defendants (or even those accused or convicted of abominable or vicious crimes) unrepresented.

Pro bono representation of the indigent is among the finest traditions and obligations of the legal profession. Having attorneys fulfill that duty helps us as a society to try up to our constitutional ideals of equal justice for all and equal rights to a fair trial. Those honorable attorneys who carry out that duty surely should not be penalized for it.


Posted by Cholo, a resident of Livermore,
on Mar 8, 2014 at 4:10 pm

Sixth Amendment: Web Link

VIVA AMERICA! VIVA!


Posted by Cholo, a resident of Livermore,
on Mar 8, 2014 at 4:14 pm

Fourteenth Amendment: Web Link


Posted by Cholo, a resident of Livermore,
on Mar 8, 2014 at 5:31 pm

Principals: Police Officer - Attorney - Convicted

Web Link


Posted by BF, a resident of San Ramon,
on Mar 8, 2014 at 11:21 pm

Hey Dave, you speak of passion, huh? You mean like when Adigbile would attend political rallys in support of of the murderer? Yeah, I see your passion. I just love how you gloss over cold hard facts about the case and then use it as a scapegoat for Adigbile's behavior outside the courtroom. And you say this guy is honorable? LOL!!!


Posted by Tom Cushing, a resident of Alamo,
on Mar 9, 2014 at 9:07 am

Hi BF: Careful reading is important in situations like this one.

For instance, neither Sen. Toomey in the statement you linked, nor anyone else, ever accused Mr. Adegbile of attending rallies in support of Abu-Jamal. Also, a different attorney who represented that defendant made the claims that you appear to ascribe to the nominee. Fox News made the same mistake you did, and also stated that the ABA had found him unqualified to serve on the DC Court of Appeals – which is also demonstrably false.

Fox is not famous for accuracy, and it's probably best not to rely on them when facts are in-issue. They Are good at whipping folks into a frenzy on false pretenses.

The NAACP's entire representation of Abu-Jamal began fully 25 years after his conviction, and related Not to his guilt or innocence, but to whether the jury instructions in the later death penalty phase of his trial met the standards of the Constitution – a principle of law with broad application to others. Turns out the federal District Court and Court of Appeals (twice) agreed with the NAACP position, and the fairly conservative US Supreme Court did not reverse. So the principle is hardly an outlier, and now it applies to everyone in a marginally fairer legal system – and Abu-Jamal remains in prison for the duration of his life.

Criminal defendants in famous, important cases are often not model citizens. Danny Escobedo (right to counsel) murdered a family member. Ernesto Miranda (of 'warning' fame) was convicted of kidnapping and rape. As a result of the Clarence Gideon case (burglary), 2000 convicts were freed, including many very bad actors.

Future Supreme Court Justice Abe Fortas represented Gideon, and current Chief Justice Roberts devoted 25 pro bono hours to representing John Ferguson, a drug dealer who murdered eight people in Florida. There is a very rich tradition of excellent lawyers taking-on unpopular cases and winning important points of law that improve the functioning of the justice system for everybody. Usually, it is understood that such representation comes with the territory, and does not disqualify anybody. Indeed, far from it. Mr. Adegbile is considered by his attorney colleagues to be one of the leading experts and voices for civil rights of his generation. Web Link

In this case, in the politically toxic atmosphere of Washington, a good, sound nominee was denied the opportunity to serve, based on a smear campaign that misapprehends both the legal system and the nominee's successful role in making it better for everyone. It was not only Mr. Adegbile who lost, but all of us. And if others now shy away from such hard cases out of fear of mob rule, that will be unfortunate, again for all of us.

Finally, I am certain that you do not actually know where I stand regarding law enforcement, based on the column I wrote. If you have found me guilty by mere association, and on the basis of demonstrably false "facts," so be it. Not much I can do about that, except offer a pitchfork – or the parachute you'll need after your logical leap from a place of high dudgeon.


Posted by BF, a resident of San Ramon,
on Mar 10, 2014 at 8:19 pm

A defendant is entitled to a legal advocate, but not to a political advocate. You lost, sir. Move on.


Posted by BF, a resident of San Ramon,
on Mar 10, 2014 at 8:44 pm

Please read Tommy,

This legal fight and public relations campaign to "free Mumia" were well underway in 2009, when, 27 years after Daniel Faulkner's murder, the NAACP Legal Defense Fund (LDF) decided to join the fray. LDF's director of litigation at the time, Debo Adegbile, was an active part of Abu-Jamal's legal team, signing legal briefs and supervising the other, more junior LDF lawyers. This was not a case of every defendant deserving a lawyer: Abu-Jamal already had multiple attorneys. This was about joining a political cause. As part of this cause, the lawyers supervised by Adegbile promoted the myth that Abu-Jamal was an innocent man who was framed because of his race.

Read more at Web Link

See, there is a difference between legal advocacy and political advocacy Tom. Unfortunately, you always seem to leave out the ying from the yang.


Posted by Tom Cushing, a resident of Alamo,
on Mar 11, 2014 at 8:29 am

BF: Once again presenting as 'fact' just another interpretive quote from Senator Toomey's rant, properly labeled "opinion" by philly.com in the URL you linked, is unpersuasive.

Did you notice that the same publication came out in favor of the Adegbile nomination in an editorial that is noted in the Toomey tirade? Those editors wrote as follows:

"The blatant demagoguery of politicians exploiting the 1981 murder of Philadelphia Police Officer Daniel Faulkner to score points they hope will serve them well in their next election is sickening. Among them include Sen. Pat Toomey, who has joined those vigorously opposing the nomination of civil rights attorney Debo Adegbile to head the U.S. Justice Department's Civil Rights Division." ...

To argue that Adegbile, one of the country's foremost legal scholars, especially when it comes to civil rights law, should be disqualified from seeking the Justice post because he participated in Abu-Jamal's appeals, is an affront to what it means to live in America, a country that allows every convict to exhaustively appeal a verdict, even when all the prior evidence appears to have assured his guilt."
Web Link

Also linked there, from Atlantic Center, an organization that opposes the death penalty, is this further explication of the appeal in Q:

"... it seems appropriate and even necessary to take a closer look at the "extreme attack on the justice system" that led to a reduction from a death sentence to life in prison for Mumia Abu Jamal. The Third Circuit Court of Appeals, the second highest court in the land, found that Mr. Jamal's jury was misinformed about how it should consider the evidence it was given. Not exactly an extreme attack on the justice system; or an extreme result, for that matter, given that Pennsylvania has seen more than 100 death sentences reversed."

"And who were these judicial rebels who took the law into their own hands and created such havoc? The three judges were Ambro, Scirica, and Cowen, who combined had 59 years serving on the Third Circuit at the time of their decision in the Jamal case. The latter two, Judges Scirica and Cowen, were nominated by that legendary rabble-rouser, Ronald Reagan."

I have no problem with the idea that there are folks who believe that Abu-Jamal should die, I just disagree as a matter of policy, as I wrote in the very first of these columns. Web Link I DO have a Big, Continuing Problem with miss-using the Senate's nomination process as a platform to exact revenge on a man who did his job, well and successfully.

BTW, addressing me in the diminutive is only appropriate if you're older, as in "than dirt." But then, if you were of that age, you likely wouldn't have done so. Addressing me as "Tommy" in attempted condescension just makes you look ridiculous.


Posted by Jake, a resident of Alamo,
on Mar 11, 2014 at 1:54 pm

When I was in school one of my wise professors told us don't pick a fight with people that buy their ink by the barrel. well it seems the same is true with the bloggers since they can remove one's post if they perceive that you are not going along with their line. Having posted a couple of times here and having it show up right after posting and then for it to disappear tells me I must have hurt Mr. Cushing's feeling or maybe it was NSA!


Posted by Tom Cushing, a resident of Alamo,
on Mar 11, 2014 at 2:11 pm

Nah, Jake -- deletion is an extreme measure, in my view: a terrible waste of good electrons.

There are only two commenters who've worn out their welcome here, and that was only after sustained and personal provocation -- and warnings. I got tired of it, and I decided that other readers might be, as well. There's a lot of crap that gets flung here, as you may have noticed -- that's fine and comes with the territory. Your stuff has always been on-point and even occasionally supportive, in case you're the Alamo Jake I recall.

Now, it's possible that you are one of those two bannees, in mask. If that's the case and you don't revert to form, that's fine, too -- so welcome (back), and fling away!


Posted by jake, a resident of Alamo,
on Mar 12, 2014 at 2:35 pm

Hi Tom: I am just me, the Alamo Jake and not one of the bannees; I am familiar them. I do find the topics you bring forward provocative and as one who is not an ideologue of any stripe I do support you positions when it resonates with my life experience and my current thinking ( I have evolved!). I am now puzzled as to why some my of posts that gets accepted disappear later; it is does not matter now.

The post that disappeared dealt with the legal profession accepting some accountability for the expert and clever use of technicalities to push the concept of "zealous defense" to a place where it defies the sensibilities of many people as to what is the goal? to have justice or just winning (O.J. Case, was justice served?). therefore, they backlash via their elected representatives. As to the politics of it, well given that most congress people and senators are lawyers and the current state of affairs, what can I say? However, I still admire my attorney niece and my nephew!


Posted by Tom Cushing, a resident of Alamo,
on Mar 12, 2014 at 4:44 pm

HI Jake: I don't recall seeing that one, because I would have responded with the not-all-together-satisfying rationale that the lawyer's job is the best defense s/he can muster, and the system's job is guilt or innocence. In the NAACP/Jamal case, guilt was not in-issue or much doubt, but the punishment was -- that leaves it one step farther removed from the facts of the case. Given the statistics about who gets the chair, one of their themes is opposition to capital punishment wherever it is found.

Now, I am curious about the fate of that comment, but my own view is limited to only the recent comments (as in the last few blogs). I will check with the IT guy to see if it can be resurrected. Thanks for alerting me to the situation.


Posted by BF, a resident of San Ramon,
on Mar 13, 2014 at 5:07 am

Adegbile injected politics into the case and got burned. If he had simply gone about his business as an attorney there would have been little opposition to his nomination. Politics is a dirty business Cushing.

BTW Tommy, what's you stance on law enforcement? Hmm?


Posted by Tom Cushing, a resident of Alamo,
on Mar 13, 2014 at 11:12 am

Some day, Biffy, I may write about that topic -- you'll just have to wait to test your foregone conclusion against some actual evidence. It'd be a good habit to cultivate.


Posted by Tom Cushing, a resident of Alamo,
on Mar 13, 2014 at 1:27 pm

For jake: here is our intrepid IT guy's response:

Not sure. I looked up that IP address and all the posts are 'live' on the site. I also searched for "jake" as a username and they are consistent with the IP address and don't see any outliers.

BTW, there is no way for you to actually remove a comment, just hide it, so the view I'm looking at would show it either way. Even if it got messed up, I would see it. Sorry I can't resolve this problem.

So, the mystery remains intact, unfortunately. Gremlins afoot. Please let me know if there are future problems!


Posted by BF, a resident of San Ramon,
on Mar 13, 2014 at 9:45 pm

Yeah Tommy, whatever you can muster. The fact that you have stayed silent on the law enforcement issue speaks volumes when it comes to this case. Not once did you address what kind of monster Mumia Abu-Jamal truly is. Hey, Dego and Mumia go hand in hand. You can't talk about one without bringing up the other. At least Mumia is in prison, and Dego is history.

And here is what's really interesting. You said, "...I admire Mr. Brosnahan a great deal, which does not make me a member of any exclusive club, but it does impel me to link this folksy 15-minute talk he gave. It's a kind of romantic..." Blah, blah, blah.

Did you admire Officer Faulkner, Cushing? Where is his 15 minutes of fame in your article? No, you would rather write about poor little Dego; the very same mouthpiece who has never had to put his life on the line.

Only weak willed individuals succumb to the cult of personality. Elevate yourself, Tommy.


Posted by Tom Cushing, a resident of Alamo,
on Mar 14, 2014 at 6:35 am

I hope you will take the opportunity to write about Mr. Faulkner, either here or in the next blog comments, where his murder remains a topic of discussion. There's plenty of material out there.

As to Mr. Brosnahan, he needs no defense from me. I happen to know him a bit, admire his work, and I saw parallels between it and Mr. Adegbile's, in terms of reactions to it, and the blowback he's received for filling an important role. If you don't see them, color me unsurprised.

Other than that, kindly understand that my editorial choices are mine, not yours. Good luck managing your aggression; I think you've got some work to do.


Posted by BF, a resident of San Ramon,
on Mar 14, 2014 at 8:31 am

No aggression here Tommy. I see things for what they are. All I did was call you out on the topic at hand. Simmer down there 'lil fella.


Posted by Tom Cushing, a resident of Alamo,
on Mar 14, 2014 at 8:41 am

Your posts speak for themselves in that regard, consistently. The fish is the last one to realize he's in the water.


Posted by Mather D, a resident of Walnut Creek,
on Mar 14, 2014 at 11:35 am

Yo Cushing. He got to ya. But he's right. See, you brought a knife to a gunfight, bro. You can't talk about Dego without bringing up Jamal. You brought this all on yourself. You knew it would be a sensitive topic, and he called you out on it. Man, write another topic and do something useful.


Posted by Tom Cushing, a resident of Alamo,
on Mar 14, 2014 at 1:28 pm

Yo, MD. (Yo?) Be grateful that you can't be prosecuted for abuse of a poor,worn-out internet meme, and say hi to your buddy.


Posted by Youseff, a resident of Diablo,
on Mar 24, 2014 at 11:01 am

Interesting how Mr. Cushing side steps the true tragedy of this issue. It appears he is more concerned about a man's career than a man's life. Tragic.


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