The Bar Exam — Does it Pass the Test?

In the Spring my friend Julianne Romy received her L.L.M., magna cum laude, from Fordham Law School. Unfortunately, thanks to Covid-19, her New York City job offer evanesced and her visa along with it. So in August she was on her way home to France. In October she took the New York Bar Exam remotely from Paris, where she was taking a French Bar course. As we near the release of the New York Bar results, I share this 1983 essay in her honor.


July 27, 1983, Somewhere in New Jersey.  I am aboard Amtrak\’s Garden State Special from Philadelphia to New York. A few hours ago I completed the two‑day culmination of the worst eight weeks of my life — the Bar Exam. Continue reading “The Bar Exam — Does it Pass the Test?”

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World Serious

In this season of the Major League Baseball World Series, I am sharing a confession I wrote in October 1985The New York Times took a pass, but I did get a lovely note from the opinion page editor.  Those were the days.


With the World Series upon us, it is time for me to come out of the closet and confess a shameful membership — men who are not baseball fans.

During the early weeks of the season it was no big deal. As the season progressed, though, I was slowly edged into the backfield of my peer group.  Every conversation seemed to turn to baseball.  The trend accelerated as the weather turned nice and baseball outings became de rigueur.

Even in social settings, the talk invariably turns from shop to the \”Great American Pastime.\”  I am generally able to skirt these conversations, leaving no one to observe, with that air of astonishment only fanatics can muster, that I don\’t know a backstop from a shortstop.  Unfortunately,  I am occasionally stranded in right field, unable to punt.

Some time ago I found myself in chambers with a judge, her clerk and the court staff, playing a game called \”Acronyms.\”  The object is to stump the other players with obscure initials.· Not only was I able to hold my own against BART and SCUBA, but I threw a curb ball at them with COYOTE.  Though I was able to avoid embarrassment over ERA by referring to the constitution, I knew I was about to be tagged in. The judge quickly sensed my fear as she moved in for the kill with RBI.  I was a little startled at how fast they saw through my bluff.  One would think it would be important to keep stats on \”Runs by Infielders.\”

About ten years ago I decided to face my problem by making an ill-fated attempt to become a baseball aficionado.  The first and, alas, final step in this process was to convince a friend to squire me to a Milwaukee Brewers game.  Even though I had no idea of what was going on, I was having a great time cheering and booing, as cued by the crowd, and munching on all manner of ballpark comestibles.

That is until some now forgotten Brewer strolled up to the platter and hit a foul tap into my lap. I think my buddy, a life-long fan who\’d never caught a ball, was about to be gracious about my good fortune. However, when I plucked the ball from my popcorn and returned it to the gridiron with a toss, he simply lost control.  Fortunately, the referee I\’d beaned with my lob sent the souvenir pigskin flying back my way.

In the intervening years I have resigned myself to irreversible baseball inaptitude. Generally, I avoid the topic or keep my mouth shut, should it come up.  The rules change in October, though. Suddenly everyone is living and breathing baseball. The only topics of conversation are baseball pools and how many matches the Series will go.  Not to mention the indignity of having the semi-finals pre-empt my favorite show, Cheers (even there I can\’t escape baseball!).

I realize it is hopeless to expect to elude baseball in the real world.  So, until the Pendant Race is over, I\’ll just watch PBS and damn Abner Doublemint.

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Brown v. Board of Education at 65

65 years ago the Supreme Court of the United States issued the decision in Brown v. Board of Education, a historic decision on desegregation in public education, outlawing so-called separate but equal discrimination in public education.  

One might think that the issue was well-settled, but Brown is once again in the news.  As a Washington Post op-ed noted yesterday:  \”More than two dozen of President Trump’s judicial nominees have declined to answer whether Brown v. Board of Education was properly decided.\”

On the 50th anniversary of the Brown decision, I wrote an essay for Philadelphia\’s newspaper serving the legal community, The Legal Intelligencer.  On the occasion of the 65th anniversary, I am republishing that essay.1  At the time of her death in March 2018, I also http://popperyatvin.com/blog/2018/03/27/linda-brown/\" target=\"_blank\" rel=\"noopener\">wrote of Linda Brown, whose father joined the eponymous law suit on her behalf. Continue reading “Brown v. Board of Education at 65”

Footnotes[+]

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January 22, 1973, at about 10 AM

Memory is strange.  My son, Dan, has a savant-like ability to precisely place and describe even the most mundane events, going back to nursery school.  My recall of even important moments is foggier.  Unlike most people born before 1960, I do not remember where I was when I learned that John F. Kennedy had been shot.

However, one very distinct memory I have from my youth is where I was on January 22, 1973, at about 10 AM. Continue reading “January 22, 1973, at about 10 AM”

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On the passing of Linda Brown: Remembering Brown v. Board of Education

\"ImageOn Sunday, March 25, 2018, Linda Brown of Topeka, Kansas, passed away at age 75.  Brown was an educational consultant, civil rights activist and public speaker.  But to many she was also the face of a historic decision on desegregation in public education.

In 1950, then seven year old Linda Brown asked her father, Oliver, why she had to make a long walk across train tracks and a busy street to catch a bus to an elementary school across town, when the Sumner Elementary School, attended by her friends from the integrated neighborhood in which she lived, was just four blocks from her house. Oliver Brown promised his daughter he would try to change that. Topeka\’s high schools and junior high schools were already integrated, but its elementary schools remained segregated.  On the advice of the NAACP, he took her to Sumner to enroll, but they were turned away.  Oliver Brown then agreed to be a plaintiff in a suit against the Topeka Board of Education.  That suit led to a landmark decision from the United States Supreme Court outlawing so-called separate but equal discrimination in public education.  By the time of the 2004 ruling, Linda Brown was enrolled in an integrated junior high school.1 https://www.npr.org/sections/thetwo-way/2018/03/26/597154953/linda-brown-who-was-at-center-of-brown-v-board-of-education-dies\" target=\"_blank\" rel=\"noopener\">https://www.npr.org/sections/thetwo-way/2018/03/26/597154953/linda-brown-who-was-at-center-of-brown-v-board-of-education-dies

On the 50th anniversary of the Brown decision, I wrote an essay for Philadelphia\’s newspaper serving the legal community, The Legal Intelligencer.  On the occasion of Linda Brown\’s passing, I am republishing that essay about the case her father brought to fulfill a promise to her.

Continue reading “On the passing of Linda Brown: Remembering Brown v. Board of Education”

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A snowy December night in The Hague

I was in The Hague for a meeting of the Association of Defense Counsel at the International Courts (ADC-ICT).  This was my last day in The Netherlands before heading home and it was snowing.

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With images of Hendrick Avercamp\’s impish 17th century paintings and childhood memories of Hans Brinker, or the Silver Skates (book and movie) dancing in my head, I set out for the \”centrum\” to fill the last afternoon of my vacation.  However, that snowy, frozen canal climate is long gone from this country.  Unused to so much snow in a short period of time the Dutch city was, if not paralyzed, substantially slowed down. Continue reading “A snowy December night in The Hague”

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Insulin isn’t just a drug

Insulin isn’t just a drug.
\"Stand

Insulin isn\’t just a drug. It’s the difference between life and death for millions of people with diabetes—and it’s something they will need every day for the rest of their lives.

When you or someone you love needs insulin and cannot afford it, the choices are scary. As the cost of insulin continues to rise, more of us, our family members, our friends and our neighbors are rationing their insulin or doing without other necessities to pay for this lifesaving drug.

This is unacceptable. It’s time to stand together and call for change.

The American Diabetes Association’s Board of Directors unanimously passed a resolution calling for immediate action by Congress and by all of the parties involved in the insulin supply chain to ensure affordable insulin for everyone who needs this lifesaving medication.

But to make sure that call is heard by those with the power to make a difference, we need you.

Add your name to the petition and join the Association to support those struggling with access to insulin.

Once you’ve signed on, help us spread the word. Real change can only happen when we raise our voices together. Here’s how you can help:

1.  Share the petition with your social media community. Tell them why it matters and invite them to join you in this fight.

2. Email your friends, family, neighbors, co-workers and classmates to tell them how important it is to keep insulin affordable, and ask them to add their voices to this call to action at stopdiabetes.com/insulin

3. Know other organizations that have a stake in making insulin affordable? Ask them to join us, and make this call for change even stronger.

Let’s send a message that the rising cost of insulin, and the lives of those who depend on it, cannot be ignored.

Alan L. Yatvin
Member, Board of Directors
American Diabetes Association

SIGN THE PETITION

Continue reading “Insulin isn’t just a drug”

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Traffic Pain in Philadelphia

The hardest part of writing something I am pleased with, is accepting when I can’t get it published. Newspaper and magazine editors only have so much space and they have to triage. When the piece is geographically specific, the available outlets are few. Or maybe what I wrote was junk and I just don’t know it. For better or worse though, because I run a blog I can always self-publish. So before you read on, be forewarned: the following Philadelphia-centric piece has received multiple rejections. I think the message is still worthwhile. But then, I would, right?


It’s 5:30 on a mid-week afternoon, and I am driving north on 16th from Locust Street to JFK Boulevard in Center City Philadelphia. The distance is about seven blocks. The trip will take more than 15 minutes. Continue reading “Traffic Pain in Philadelphia”

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Where to file a Philadelphia police misconduct suit.

\"\"Recently, a colleague queried a local criminal justice listserve for advice on filing a police unreasonable force case in Pennsylvania state court in Philadelphia. I responded with some advice and observations on the pros and cons of filing in the Philadelphia Court of Common Pleas (the First Judicial District or “FJD”), versus seven blocks east in the U.S. District Court for the Eastern District of Pennsylvania. This blog post collects and expands upon our email exchange.


The incident at issue involved allegations that Philadelphia police officers beat a suspect.  When their further investigation cleared him of the initial criminal allegations, they left him on the street without arresting him or transporting him for medical treatment. There were officers on the scene who did not participate in the beating, but merely stood by without intervening. The proposed plaintiff suffered bruises, contusions, abrasions and broken teeth. He took himself to the hospital, where he was treated and released. He did not have medical insurance and did not receive follow-up treatment. His injuries have resolved, other than his teeth. Continue reading “Where to file a Philadelphia police misconduct suit.”

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Gideon v. Wainwright

Gideon v. Wainwright: Facts to Know and Tell

By Alan L. Yatvin

In Philadelphia and across the country, lawyers, the judiciary and politicians are examining the quality and adequacy of funding for legal representation of indigent criminal defendants.  The case that confirmed the broad right to such representation was Gideon v. Wainwright, 372 U.S. 335 (1963).  This month we commemorate the 50th Anniversary of the decision.  Here are some facts you may not have known about Gideon:

♦ The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to … have the Assistance of Counsel for his defense.\”

♦ The right to assistance of counsel was part of James Madison’s original proposed Bill of Rights presented in a speech to Congress on June 8, 1789.

♦ Alexander Hamilton, argued against having a Bill of Rights in Federalist No. 84, because, in part, of his concern that the failure to mention other rights would imply they were not protected.  This concern led to the inclusion of the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

♦ It was not until 1938 that the Supreme Court confirmed that the Sixth Amendement right to counsel in all federal prosecutions included providing counsel to defendants who could not afford to hire an attorney.  The opinion was written by Associate Justice Hugo Black.  Johnson v. Zerbst, 304 U.S. 458 (1938).

♦ In Powell v. Alabama, 287 U.S. 45 (1932), the Supreme Court ruled that 14th Amendment due process included a meaningful right to counsel in capital cases.

Powell was the famous case of the Scottsboro Boys, nine black men who were charged with raping two white women on freight train traveling through Alabama.  Eight of the nine were sentenced to death following one day trials of three defendants each.  The defendants actually had lawyers appointed at trial, but not during the six days between arraignment and trial. The Supreme Court held that due process required timely appointment of counsel for capital defendants who could not afford to retain counsel.

♦ In Betts v. Brady, 316 U.S. 455 (1942) the Supreme Court declined to extend Powell and declared that the right to appointed counsel did not generally extend to non-capital cases, unless trial without a lawyer, after “appraisal of the totality of the facts in a given case [demonstrates] denial of fundamental fairness, shocking to the universal sense of justice…” Later cases held that such denial required a showing of “special circumstances” like illiteracy, ignorance, youth, mental illness, complexity of charges or misconduct of the prosecutor.  Justice Hugo Black dissented in Betts.

♦ In 1961 Clarence Earl Gideon was a fifty-one year-old white man, charged with burglary of a bar in Panama City, Florida.  He was a four time convicted felon who had been in and out of jail much of his life.

♦ When his case was called to trial on August 4, 1961, Gideon informed the judge that he was not ready for trial because he did not have a lawyer.  When pressed to explain, he said he could not afford a lawyer and asked the judge to appoint a lawyer, incorrectly stating that “the United States Supreme Court said I am entitled to be represented by counsel.”  The judge informed him there was no such right and the case proceed to trial.

♦ As the Supreme Court later explained: “Put to trial before a jury, Gideon conducted his defense about as well as could be expected from a layman. He made an opening statement to the jury, cross-examined the State\’s witnesses, presented witnesses in his own defense, declined to testify himself, and made a short argument ‘emphasizing his innocence to the charge contained in the Information filed in this case.’ The jury returned a verdict of guilty, and petitioner was sentenced to serve five years in the state prison.” 372 U.S. at 337.

♦ Gideon appealed to the Florida Supreme Court, which denied him relief without opinion.

♦ On January 8, 1962, the Clerk of the United States Supreme Court received Gideon’s five page, handwritten in pencil petition for a writ of certiorari asserting a denial of due process in the refusal of the Florida judge to provide him an attorney.  Gideon asserted no “special circumstances”.  Gideon’s petition was one of nine such in forma pauperis petitions received by the Court that day.

♦ The State of Florida filed no response to the petition during the routine 30 day hold period.  However, when the petition was then sent to the chambers of Chief Justice Earl Warren, he directed the Clerk to write the Florida attorney general requesting a response.

♦ Florida responded that the case was controlled by Betts, and that Gideon had alleged no special circumstances.  Gideon responded: “it makes no difference how old I am or what color I am or what church I belong to if any.  The question is I did not get a fair trial.  The question is very simple.  I requested to the court to appoint me [an] attorney and the court refused …”

♦ On June 4, 1962, the Supreme Court granted Gideon’s motion to proceed in forma pauperis and petition for writ of certiorari on the question of: “Should this Court’s holding in Betts v. Brady, 316 U.S. 455, be reconsidered?”

♦ The Court appointed Washington power lawyer and experienced Supreme Court litigator, Abe Fortas.

♦ The Florida attorney general wrote the attorney generals of the other 49 states, seeking friend of the court (amicus) briefs in support of Florida’s position that the right to counsel presented by Gideon was an issue of states’ rights, and that Betts should not be overturned.

♦ Several attorneys general responded that they were considering filing an amicus brief.  The attorney general of Minnesota, however, responded: \”Since I firmly believe that any person charged with a felony should be accorded the right to be represented by counsel regardless of his financial condition, I would welcome the courts’ imposition of a requirement of appointment of counsel in all state felony prosecutions.”  That man was future senator and vice-president, Walter F. Mondale.

♦ Mondale’s correspondence with the Florida attorney general was the impetus for an amicus brief supporting Gideon drafted by several Harvard Law School professors, which was ultimately signed by twenty-three states.  Only two states, Alabama and North Carolina, ended up signing an amicus brief supporting Florida.  That brief, drafted by the Alabama attorney general, stated the view that an indigent defendant without counsel “stands a better chance of obtaining from a jury either an outright acquittal or less severe punishment than one represented by an attorney… [and only a  few lawyers would be] equal matches for career prosecutors.”

♦ The ACLU filed an amicus brief which included a survey of state court decisions under the Betts “special circumstances” test.  Of one-hundred such appellate decisions, only eleven found special circumstances.  Only one Pennsylvania case, out of forty-four, was found to present special circumstances, with three having been remanded for a hearing.

♦ After the grant of certiorari but before argument, Justice Felix Frankfurter, a strong supporter of states rights and Betts, retired from the Court.  President Kennedy appointed Secretary of Labor Arthur J. Goldberg as his replacement to the so-called “Jewish seat”, previously held by Justice Benjamin N. Cardozo.

♦ In 1965 liberal lion, Harvard economist and advisor to presidents, John Kenneth Galbraith, recommended Justice Goldberg to President Johnson to fill an opening as Ambassador to the United Nations.  Goldberg was replaced on the Supreme Court by Gideon lawyer Abe Fortas.  Fortas was later forced to resign from the Court due to an ethics scandal.  Galbraith came to regret his role in Goldberg leaving the Court, later writing: “I did little for liberalism that morning.”

♦ The Supreme Court heard oral argument in Gideon on Tuesday, January 15, 1963.

♦ The case was filed as Gideon v. Cochran, but was changed after oral argument when Louie L. Wainwright was named the new Director of the Florida Division of Corrections.

♦ On Monday, March 18, 1963, Justice Hugo Black, the author of an impassioned dissent in Betts twenty-one years earlier, announced the decision of the Court overruling Betts.  There were concurring opinions by Justices William O. Douglas, Tom C. Clark and John Marshall Harlan.  There were no dissenters.

♦ In the wake of Gideon, the battle then shifted to funding for counsel for the indigent.  On May 22, 1963, Attorney General Robert F. Kennedy testified about appointed counsel in the federal system:  “Federal courts today continue to delegate the defense of the underprivileged to assigned counsel who are not paid for their services.  They are not reimbursed for their out-of-pocket costs.  They do not receive a shred of investigative or expert help.  They are not appointed until long after arrest, when witnesses have disappeared and leads grown stale.  They often lack the trial experience essential for a competent defense.”

♦ Two months after Gideon, Florida passed a statute creating a public defender in each of the state’s sixteen judicial circuits.

♦ When the case was called for trial on remand before the original trial judge, Gideon refused to be represented by two ACLU lawyers, including one involved in the Supreme Court amicus brief, and instead asked for appointment of local lawyer W. Fred Turner.

♦ Turner investigated the case, hitting the streets himself, and even picking pears with the key prosecution witness’ mother in her backyard to gather information.

State v. Gideon was retried on August 5, 1963.  Turner, who declined to make an opening, cross-examined the prosecution witnesses, presented a surprise defense witness to impeach the State eye-witness, called Gideon and made closing argument.  After deliberating for 65 minutes, the jury returned a verdict of Not Guilty.  Gideon was freed after nearly two years in the state penitentiary.

♦ Nine years later, in another Florida case, the Supreme Court held that defendants may not be imprisoned if they did not have counsel, thus extending Gideon to misdemeanors and many so-called petty offenses where defendants face incarceration.  Argersinger v. Hamlin, 407 US 25 (1972).  Gideon had died five months earlier.

♦ \”If an obscure Florida convict named Clarence Earl Gideon had not sat down in prison with a pencil and paper to write a letter to the Supreme Court; and if the Supreme Court had not taken the trouble to look at the merits in that one crude petition among all the bundles of mail it must receive every day, the vast machinery of American law would have gone on functioning undisturbed. But Gideon did write that letter; the court did look into his case; he was re-tried with the help of competent defense counsel; found not guilty and released from prison after two years of punishment for a crime he did not commit. And the whole course of legal history has been changed.\”  Robert F. Kennedy, November 1, 1963.

♦ New York Times Supreme Court Reporter Anthony Lewis wrote a book on the case called Gideon\’s Trumpet.  The book has been continuously in print since it was first published in 1964.  It was made into a 1980 TV movie starring Academy Award winners Henry Fonda as Gideon, José Ferrar as Abe Fortas and John Houseman as the Chief Justice.  Lewis died in March 2013, shortly after the 50th Anniversary of the decision in Gideon.

 

*Gideon\’s Trumpet was a source material for some of the information in this article.

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