By: Olujimi Akindele

Currently there is a lot of hoopla about Obama’s choice for attorney General who apparently was involved with presidential pardons that were considered scandalous. A presidential pardon is a last result for someone who has gone through the criminal justice system and has been convicted of a crime.  Presumably every pardon results in granting mercy to someone who is guilty. Nonetheless, the fact that granting some pardons is considered blameworthy and other not so is an challenge to the criminal justice system. By grating pardons to those that are deserving rather than those who are not deserving we are implicitly recognizing the failure of the criminal justice system to account for the deserving. In contrast, if we had complete faith in the criminal justice system all pardons would be scandalous abrogations of justice. So we hold the process of pardoning criminals up to a different standard than that of the actual process of meeting out punishment. This is an interesting, though often overlooked double standard.

By: Nicholas Millman

Despite believing that I have watched just about every Law & Order episode ever made, I always manage to turn on TNT and find a fresh one.  The episode I stumbled upon last week was without a doubt one of the more insane and ridiculous episodes I had ever seen.  It was premised on a young attorney who was found bludgeoned to death in the conference room of her big nyc law firm (aptly named “Cromwell & Moore”).  The murder weapon was suspected to be what they called a “tombstone,” one of those glass trophies given to attorneys who close a big deal or win a big case.  The time of her death was put around 11PM, which was repeatedly explained as “early” for a lawyer to still be at the firm.
As the episode unfolded, we learned that the victim had slept with a large number of firm employees (mostly associates, but also a partner, and even the janitor! not joking).  When an associate who had slept with her was questioned, he explained that they had had sex in one of the “relaxation” rooms upstairs and did not seem the least bit embarrassed or shy about discussing it.  Other associates/partners didn’t seem the least bit interested in solving the crime or concerned with the outcome as they were depicted as annoyed by the police interrupting their work-out session in the firm gym.  One of the primary suspects became a junior partner who had recently given the victim a bad performance review after she refused to sleep with him.  After the junior partner was charged with the murder and arraigned, the firm instantly posted his $1,000,000 bond.

There is a quick scene where McCoy is having a meeting with the managing partner of the firm to discuss the case and McCoy reminisces about when he applied for a position at the firm and the managing partner asked him during the interview something like, “what makes you think you’re good enough to work at Cromwell and Moore?”  Jack McCoy not NYC law firm material? Hard to believe.
At this point in the episode I didn’t think the writers could depict corporate lawyers in a more negative light, but they did manage to throw in one final plot twist: the managing partner of the firm, in an attempt to prevent the case from going to trial to protect himself from a potential SEC scandal that he was also involved in (firm profits were dwindling and the managing partner had to pull his weight) hired someone to kill the prosecution’s main witness!
Turns out it was one of the senior associates who committed the murder because the victim would not reciprocate after he professed his love for her.  He told the managing partner right after he committed the murder and wanted to cover it up until the managing partner realized he could use his knowledge of the murder as leverage to fight the SEC charges that would be coming against him.
Ok, so lets review all the different ways corporate lawyers are depicted in this episode: liars, cheaters, lawbreakers, philanderers, overworked sex addicts, arrogant obnoxious jerks concerned only with self-preservation, egomaniacs, and cold-blooded murderers!
I honestly laughed out loud multiple times during this episode because I felt it was just so preposterous to depict corporate lawyers in such a way.  This literally must have been the law firm in the Devil’s Advocate where the managing partner is actually Satan and all the attorneys are his enslaved minions.  Millions of people across the country saw this episode and I seriously bet the vast majority of them didn’t even blink an eye; New York corporate law firms just have this reputation in the minds of the general public.  Being that I have not yet worked at any firm resembling Cromwell and Moore, I wonder what attorneys working at firms similar to it would think if they saw this episode.  I really hope they would laugh out loud as well at how ridiculous it was.

By: Gary Varnavides

Until Plaxico Burress recently shot himself in the leg, most New Yorkers’ familiarity with their state’s gun laws amounted to an occasional glance at the NYPD subway posters announcing mandatory jail sentences for gun possession.  In the days after the Burress shooting, however, everybody seemed to become an expert on the topic.  Everybody from convicted felons to a Fordham Law professor called into New York sports radio station WFAN to offer their opinions on whether or not Plaxico Burress would go to jail.  Opinions varied widely, with some lawyers expressed certainty that the star wide receiver would be headed “upstate” (a colloquial reference to the various New York state prisons located far north of the city) while others predicted some community service and no jail time.  Anybody listening had to be wondering how there could be so many views on a seemingly simple case.

The crux of the issue is the New York legislature’s 2007 change to the Penal Code regarding gun possession, which was championed by Mayor Michael Bloomberg as part of his mission to reduce gun violence in New York City.  Specifically, the legislature made it a Class C violent felony to possess a loaded-unlicensed handgun outside one’s home or place of business.  It had been a Class D felony.  The C/D distinction is crucial to the Burress case; calling a felony a “violent offense” in New York carries a mandatory, fixed prison sentence (3 ½ years for the aforementioned Class C possession of a loaded-unlicensed handgun, hence the subway ads) whereas Class D “nonviolent” offenses have more room for judicial discretion at sentencing, as well as more opportunities for plea bargains before trial.

Shortly after the legislation was enacted in 2007, one of Mayor Bloomberg’s deputies went to the New York Bar Association’s office in Midtown Manhattan to address a group of lawyers and press the case that the new legislation would bring down gun violence.   Not surprisingly, considering it was a roomful of lawyers, the deputy faced a wide variety of opinions and arguments about the new law.   The most vociferous opponent of the change in law that night was noted defense attorney Benjamin Brafman, who argued that changing the possession crime from Class D to Class C was unfair because it did not allow any exceptions.   Ironically, Burress retained Brafman as counsel almost immediately after the shooting.

It will be interesting to see how the Burress situation plays out.  Mayor Bloomberg has been outspoken in his criticism of Burress, arguing that he should serve jail time to serve as an example of the toughness of New York’s gun laws.  Additionally, the public nature of the incident makes it unlikely that Burress will get much slack in terms of a plea bargain from the New York County DA’s Office.

Thus, Brafman has his work cut out for him as he begins to plot a defense strategy dealing with the law he loudly opposed two years ago.  His client is not due back in court until March, though, so he has some time.  In the interim, if he needs any advice he can always turn on WFAN and listen to the city’s attorneys, both real and amateur.

By: Roxana Azizi

Like a first year law student studying torts who suddenly sees potential liabilities all around her, or, like a six year old that first learns how to read and suddenly becomes consumed with the writing on signs and packages that she had never noticed before; I too, suddenly and without notice cannot stop observing the themes of moral justice everywhere.  In a venue as seemingly innocuous as a James Bond movie, I sat there in the theater this past weekend, watching Quantum of Solace, and observed that the whole movie turned around the theme of revenge.  Part of the storyline revolved around Camille, a young woman who had spent her whole life seeking revenge on the political figure that had come to her home when she was a child and killed her mother and father before her eyes and left her with irreparable scars – both literally, on her back, and of course figuratively.  Her sole desire all her life is to kill the man that had brought so much pain to her life, and more importantly, had never been punished for killing her family.  At the end of the movie she finally gets what she seeks – she risks her life, but she kills him and thus has finally attained moral justice.  With this sense of moral justice comes the belief that her dead family will finally be at peace.

I also saw elements of the pursuit of moral justice while reading an article about a recent lawsuit in Boston.  A jury decided that a woman’s family was entitled to $13.5 million for her wrongful death following a cycle of experimental chemotherapy at a hospital.  Before this class, I would have felt that the family got vindication.  No, their wife and mother would never be with them again, but at least the court had acknowledged that someone wronged them, and they would be somewhat remunerated against this wrong.  But that would have been before I understood the concept of moral justice, and before I understood the weight of an apology.  One line in this article stood out, a line that I probably would have glossed over before I comprehended the importance of an apology: the decedent’s husband made a point to state in his interview that the hospital “did not issue an apology.”  Could the hospital have avoided this lawsuit if it had apologized for the death of this woman, because the family merely wanted someone to account for the death of their cherished wife and mother?  Even if the lawsuit could not have been avoided by an admission of remorse for her death, it would have at least provided a form of solace to the grieving family; it would have given them a sense of moral justice.  Without such an apology, without such an acknowledgement that their wife and mother was wrongfully taken from their lives, they attempted to attain justice through a lawsuit.  Without an apology, however, this element of moral justice will not be attained.

By: Kate Belmont

The Washington D.C. Holocaust Memorial Museum opened in 1993, and I was one of its first visitors, I was thirteen.  As a public school student, my knowledge and exposure to the Holocaust began as I am sure most students’ did, reading The Diary of a Young Girl, by Anne Frank.  At that age, I assure you, most students had no idea of the immensity of what they were reading.  Throw in a few Global Studies classes on World War II and there you have it – the Holocaust in three easy steps.  My younger sister had a similar experience.  Actually, we have it on film.  Instead of writing a book report, my sister acted, directed, and produced her own version of The Diary of a Young Girl – she sat in the attic and read excerpts of the book.  She got an “A.”

Fortunately, my education was not limited to what I was taught in the New York Public School System.  A close family friend was an Austrian Jew who spent months in hiding to avoid capture by the Nazis.  Along with my reading of The Diary of a Young Girl, my parents suggested that I speak with their friend, Claire.  Claire’s story was real to me.  I was not listening to a teacher reading in monotone, I was hearing the truth from a survivor.  The horrors of the Holocaust seemed almost possible.

At thirteen, I already had a perspective unlike most my age.  When the Holocaust Museum opened in Washington D.C., I was eager to see it.  I suppose I was eager to connect the dots, to put together what I had read, what I was taught, what I had learned from Claire, and to see the actual truth.  I can tell you what I remember (it was 15 years ago…).  I was angry, and did not like the experience.  I was expecting to feel pain, real physical and emotional pain from the severity of the truth in the exhibits and the gravity of the information presented.  Instead, it was like Disney World in gray.  It was gimmicky – take a passport and follow the yellow-brick road, walk through an empty box-car, look into this cauldron and check this out.  Kids were running around everywhere.  The actual building itself also failed to convey any significant meaning.  Yes it was big, yes it was cold, yes it was industrial, but it was also shiny, modern and new.  It had no feeling.  Whether it is a piece of barbed wire, a bar of soap, a shower head or a pair of discarded shoes, there is feeling and meaning in every part of the Holocaust.  Words fail to describe the feelings – revulsion, horror, desperation, and profound sadness are among the few one might have when reflecting on the atrocities that occurred.

As Primo Levi suggests, the words are too small.  If the words are too small, does that mean that they should not be uttered?  Or, should they be spoken with the utmost respect and honesty?  The museum used words that were too small, pictures that were too big, and exhibits that were too plastic.

When I think about the museum today, I am still frustrated.  Millions of people will visit this museum and not get it.  The Holocaust is not supposed to be fun, it’s not supposed to be cool, or interesting, it is supposed to be horrible and painful and disgusting and beyond comprehension.

Discussing the relationship between art and atrocity, many students argue that a story must be told in order to educate as many people as possible, for the good of humanity.  Well, “a” story is not good enough.  Those who died, those who survived, they all deserve the absolute truth be told and nothing less.  We do not need to dumb down the Holocaust.  The Holocaust should not be taught or portrayed in any other light than what it was – one of the darkest times in civilization.  If art in any medium does not attempt to accurately portray this, a great injustice is done to those who survived, and to the eleven million people who did not.

By: Stephanie Gentile

In light of the Plaxico Burress scandal and his suspension from the Giants, many NY media outlets have been aggressively covering the story.  This raises important questions of what role the media plays in determining guilt in criminal cases.  Plaxico has become somewhat of a NY hero as a result of the Giants’ superbowl win last year, and even though his has been criticized for “diva” behavior this season, the media has regarded his behavior somewhat affectionately.  After his self-shooting and alleged unlicensed weapon charge, media coverage has shifted from portraying him as loveably difficult to plainly ignorant.  At the same time, however, the media also sometimes justifies Plaxico’s alleged felony by pointing out that other sports figures often bring guns to clubs to defend themselves after a football player died last year in a shooting, and by listing other people in pop culture who have been acquitted on these charges in the past.

In response to the media coverage, Mayor Bloomberg has spoken up and requested that Plaxico be prosecuted to the full extent of the law.  Because of the way public opinion has arguably resulted in lenient legal treatment of celebrities, the Mayor felt compelled to express his opinion that special treatment cannot happen here.  This is a tricky issue because, while celebrities have certainly received lighter sentencing and favorable verdicts in the past, this debate between the media and the Mayor in the public forum is definitely influential on any potential jury or judge that will be deciding the fate of Plaxico.  Indeed, although Plaxico has pleaded not-guilty to felony weapon charges, the Mayor and some of the public has presupposed his guilt.  On the other hand, because Plaxico is well respected and generally revered as a sports figure, some people will most likely be unfairly resistant to finding him guilty.  Media coverage of celebrities’ legal issues is always very interesting.

By: Mordechai Prag

I recently came across the following case while doing research for a Professional Responsibility-Ethics in Criminal Advocacy paper and I immediately knew what Professor  Rosenbaum would say about this decision by the court and the actions of the defense lawyers.

In 1957, David Spaulding was seriously injured in a car accident, when a car being driven by John Zimmerman, in which David was a passenger, crashed into another car being driven by Florian Ledermann. Spaulding’s father sued both drivers, as well as their parents, who were the owners of the vehicles involved in the collision, on behalf of his son. The doctors who treated Spaulding did not discover that among his many injuries he had also suffered an aneurysm of the aorta, which was almost certainly caused by the accident and which was life-threatening. However, the doctor hired by the defense lawyers did discover this life-threatening injury and reported it to the defense lawyers shortly before the two sides were to have a meeting to hopefully work out some sort of a settlement. At the meeting, the defense lawyers did not reveal the discovery of the aneurysm and a settlement amount was agreed on, and it was only a few years later that Spaulding found out about his potentially fatal condition and had immediate surgery to correct the problem. Spaulding subsequently sued the defense lawyers but the courts held that the defense lawyers had no duty under ethical rules to disclose to the prosecuting party the information which only they knew of, even though there was a chance that there would be grave harm, and possibly even death, resulting from the withholding of such information.

Here we have an instance where the life of a human being was put in peril because of the nondisclosure of the defense lawyers merely because it would hurt their client’s position when it came to reaching a settlement amount. Legal? Yes. Moral? No!

By: Alan Moskowitz

Primo Levi said “words can’t be used to express this offense, the demolition of a man.” An atrocity simply can not be described. A depiction of what occurred during the holocaust can not accurately and properly describe the killing of millions. Movies, books, museums etc. often trivialize the harsh realties of the holocaust. Yet, in my opinion, few things are more demeaning then the commercialization of the holocaust.

Many concentration camps, now serving as holocaust museums have recently added souvenir shops as part of their tourist attraction. You can now take a half-hour walking tour and leave with a parting gift. In a second instance of holocaust commercialization, a few years ago a Polish artist made an exhibition to show off his new Auschwitz souvenirs. These “holocaust memorabilia” came in the form of key chains and refrigerator magnets. Lastly, the fact that many of the concentration camps charge an entrance fee to visit the camps cheapens whatever quality and purpose the camps serve to reinforce the memory of the atrocities. This is a twofold problem. These are graveyards for millions of people who were brutally murdered, and did not perish from a mere “natural disaster”. It should be obvious not to have to pay to mourn the dead. Secondly, having someone make money off the concentration camps is simply wrong. About ten years ago my father and I visited the concentration camp in which my grandfather had been enslaved during the holocaust. When we got to the entrance of the camp – turned museum – at the gate a man told us there was an $8 entrance fee. My father, in complete disgust, responded: “My father got in here for free.”

Can there possibly be a more flagrant degradation of the murder of millions than turning the holocaust and the concentration camps into a money making scheme?  They are trivializing the holocaust and reducing the atrocities that occurred in those very camps by effectively turning them into money making tourist attractions. Of course there is the sound argument that money is required to maintain the areas, employ the proper guides and appropriate security detail of these former horror camps. But cannot these funds derive from government sources as a way of not only admitting the complicity of so many ordinary people in the places in and about where these camps existed, but also as a responsibility to its own people and to the world to help maintain these hallowed grounds? But until then, how long will it take till someone decides to sell holocaust t-shirts, coffee mugs and small key chains of gas chambers?

By: Brian Fitzpatrick

President Bush is coming to the end of his presidency.  While his lame-duck status leaves him with very little power, Clarence Aron is hoping the President will use what little power he has left – his pardon power.  Aron was convicted in 1993 for a first-time nonviolent drug offense.  His sentence?  Life without parole (actually, three consecutive life sentences without parole).  Upon reading this, one would be justified in questioning whether they just read that last sentence correctly.  Unfortunately for Aron, it is correct.  As of this year, he has spent fifteen years in a maximum security prison.  His application for a pardon will make its way to the President’s desk sometime before January 20th.

While a student at Southern University in Baton Rouge, Lousiana, Aron made the ill-advised choice of acting as a go-between for two drug deals.  He was paid $1,500 for introducing the two drug dealers to each other.  That was the extent of his involvement.  Federal prosecutors eventually charged six individuals as co-conspirators in the drug deals, including Aron.  Each of the other five co-conspirators pleaded to lesser charges and testified against Aron.  The average time served in prison by his five co-conspirators – which included a drug kingpin who made millions selling crack, and others with prior criminal records – was eight years.  In addition to the damaging testimony by his co-conspirators, Aron’s sentence was enhanced because of a second ill-advised decision to perjure himself on the stand.  Congress passed a law the following year granting “safe harbor” to first-time offenders from mandatory sentencing guidelines but it did not apply retrospectively.

Clarence Aron broke the law – twice, in fact.  He deserves to spend time in jail. Does he deserve to spend the rest of his life in prison?  I don’t think it’s possible to say yes with a straight face.  Blame for the unjust sentence Aron received cannot be put squarely in one place.  In examining the failures at each level of decision-making, it is also instructive to search for the reasons why Aron was given such a harsh sentence.  Prosecutors could have used their discretion to focus on the major player in the drug deals.  But then again it’s their job to get criminals off the streets and if five criminals will plead guilty and all but secure a conviction for the sixth with their testimony, there is some obvious benefit in that.  The judge could have used his power to vacate some of the charges or the conviction itself.  But then again he was following the mandatory sentencing guidelines set out by the state legislature.  And the state legislature could have included “safe harbor” provision similar to the one passed by Congress the year after Aron’s conviction.  But then again, there is a valuable deterrence effect to mandatory sentences.

Let me be clear.  In trying to understand the decisions made at each level of the process, I do not condone the unjust sentence that Aron received.  It is morally repugnant and it deprives the justice system of the public trust it so desperately needs.  Understanding how or why the decisions were made, however, is necessary to identify the moral failings in the sentence that Aron received.  At every level of the process, the participants were solely concerned with cold, hard results.  The prosecutors with their convictions, the judge with his sentencing guidelines, and the legislature with its deterrence.  With such narrow-minded focus, the back story surrounding Aron’s sentence was shut out of the legal process.  The inequality, in both morality and justice, of a life sentence without parole for a first-time nonviolent offender while his more morally and criminally culpable co-conspirators spent an average time of eight years in prison.  The law does need clarity and structure, but it would go a long way towards earning the public trust if those charged with upholding the law thought equally as much about achieving outcomes that are morally correct, fair, and just.

Clarence Aron’s hope for a moral outcome currently lies in the hands of our departing 43rd President.  Let’s hope for a moral victory in the waning days before January 20th.

By: Andrew Short

Ok, after reading some of the past few posts, I’d like to throw zoom out bit and add little discussion about morality and relativism.  I think the two can be viewed as compatible, and that a relativistic view in no way diminishes the weight or responsibility of moral choices.

Before getting into that, I make the distinction between the participant and the observer of a moral choice.  The participant is the one who makes the choice, whereas the observer asks how and why was that choice was made.  The participant is who we are when we make our daily choices.  The observer is the one who would look at the neurons firing/soul operating (depending on your point of view).  As the participant we feel that the choices we make have real weight.  However the mechanism by which our brain operates is unknown to us.  As I sit here typing, I have no idea which neurons are telling which muscles to do things.  But I still wind up typing.  Similarly, when making a moral choice, I don’t know how the mechanics work, but I still wind up making a choice.

Moral relativism speaks to the idea that perhaps it is through some sort of relational calculus, the brain tells the body whether or not to save the person in the lake.  That is, from the observer’s perspective, maybe relativism is how we happen to make choices, even though as the participant we are unaware of the mechanics of that choice.  This kind of thinking would explain how people can justify terrible acts as moral to themselves.  If moral relativism categorically does not apply, then presumably every individual who makes in immoral choice is aware of that.  I don’t think that’s the case.  In my experience, when others make choices I view as bad, those choices are made as a result of an experience different from my own, not because one of us has the right moral view and the other is evil.  That’s my two cents.