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.

Some of today’s questions are still floating around in my mind but, surprisingly, only a few. Veterans of the experience tell me that by tomorrow virtually all the assorted rules of law will leave me, as though written in disappearing ink.

What really occupies me now, though, is not the law or the questions, but the process. Over the last eight weeks I have gone through an unpleasant, dehumanizing experience ‑- with no apparent benefit.

There was a time when law school and clerkships prepared one to sit for the Bar. Nowadays, candidates prepare for the semi‑annual ordeal with expensive Bar review courses starting about two months in advance of the exam. The sole purpose of these courses is to help candidates pass the Bar Exam. Any law picked up along the way is purely incidental, accidental, and transcendental.

To get us through, the courses provide grossly over‑simplified rules, mnemonics, and bizarre, yet memorable illustrations. They also give examinees a peek inside the Bar examiners\’ heads by revealing past methods and tricks.

Questions from the essay half of the exam are routinely released by each state’s examiners. However, for the most part, the 200 questions from the Multi‑state portion are kept secret by the Princeton‑based Educational Testing Service which administers the multiple‑choice part of the exam in 44 states. The review courses manage to get around this secrecy, though. They “de‑program” examinees after each test. As a result, reviewers are able to reveal the tricks, the “always wrong” answers, the red herrings, and even the distribution of sub‑topics within the general areas tested.

The review instructors acknowledge that the Bar is nothing more than the final hazing before induction into the fraternity. A pre‑exam “Good Luck” letter from the New York offices of the nation’s largest review course characterized the New York Bar Exam as “an endurance test … designed to shake you up, to gauge how you react under the gun.”

If this sort of activity is what it takes to pass the Bar Exam, what good is it? Tricks, short‑term memory enhancers, and refined test‑taking skills do not bestow any benefit on the legal profession.

This should not be taken as condemnation of the review courses. The Bar Examiners invite this activity when they require candidates to jump through meaningless hoops. Their testing behavior makes the examiners fair game, and the use of anything short of cheating is legitimate in the battle for Bar survival.

Even if most of what is learned in preparation for the Bar were not soon forgotten, little is the sort of law which will be useful in practice. Renowned trial lawyer Irving Younger prefaced a lecture on the New York statutes of limitations by pointing out that, in real legal practice, failure to verify these statutes would be grounds for disbarment. Then to what end do we commit to memory ever‑changing details which always must be looked up or researched in the course of the actual practice of law?

Its supporters would also be hard pressed to justify the Bar as a grand final exam for law school. Law schools teach the law in terms of philosophy, theory and broad‑based rules. Law professors shun that which they refer to as “black letter law” — precisely what the Bar tests. Anyone. can look up cases and statutes, they say. The important thing is to be able to think like a lawyer.

Twenty years ago the Bar was an essay exam demanding wide‑ranging analysis.

Today, half the exam is multiple choice — a testing style which punishes innovative thought. Even the modern essays are closer to multiple choice questions than to the type of essays expected in law school. Any law student who wrote an essay consisting solely of the issue, the applicable rule of law, a brief discussion applying the rule to the facts, and the outcome of the suit, would be lucky to garner a ‘C’ from a law professor. But on the Bar, this is the formula for full credit.

Nonetheless, perhaps all this senseless tail‑chasing could somehow be excused if it were not for the toll the Bar takes of its candidates. The Bar transforms competent, intelligent, self‑assured students into frenzied rats, desperately trying to wend their way through a mental maze. In the past eight weeks, I have seen all manner of neurotic behavior fostered by the Bar: some reacted by going on eating binges, while others lost their appetites; many also became insomniacs — a condition the incidence of which increased geometrically as B‑Day approached. A once‑happy law student couple found themselves forced to study apart and avoid any discussion of the law because his compulsiveness dramatically increased her natural nervousness. Normally efficient people suddenly became unable to study effectively. Sometimes the condition even blossomed into intellectual paralysis. And, if my circle of friends is representative, chiropractors and ophthalmologists across the country are due for an early August business boom.

Lest we be lulled into thinking that the misery ended with the handing‑in of our test papers, the Bar examiners have arranged for our purgatory to continue. For most of us, the results will not be out until sometime after Thanksgiving. The impact of this long wait is hard on everyone, but particularly so on those who do not yet have a job. For the next four months the already tight legal job market is virtually closed to anyone not already admitted. Employers who have waited this long generally find it to their advantage to wait just a it longer in order to hire a known quantity.

From the employer’s point of view this is quite a logical approach. An unadmitted attorney is not permitted to perform many of the functions an employer might desire, and if the candidate fails the Bar, the period of incapacity will be extended by at least another six months. Additionally, the new employee’s services will be lost during the study period for the next exam.

Another problem with this seemingly endless wait is that many public sector employers will not even consider candidates before admission to the Bar. Consequently, a person headed for a large firm frequently has secured a position in November of the third year of law school, while a class‑mate hoping for employment as a public defender in Baltimore or Phoenix will not hear until more than a year later. This disparity flows both from the timing of release of Bar results and the constraints limited resources place on most public sector employers.

There is some hope on the horizon, though. This year California is experimenting with a new component to its Bar Exam. In addition to the traditional local essays and the Multi‑state section, California candidates will sit for a third day. The exam on this day consists of writing a research memorandum using a packet of pre‑selected cases and statutes. The student must read and analyze the actual law, then apply it to a factual situation. This format comes closest to anything yet proposed in truly testing that which lawyers do.

If Voltaire [or Leibniz?] were writing the Bar Exam, the Best of All Possible Bar Exams might consist of a memorandum similar to the California experiment and a more law school‑like variation on the local essays. This second part would serve the purpose of testing knowledge of local law, but in a way that would reward creativity and in‑depth analysis. The format would demand less in the way of formal structure and test fewer issues, allowing more time to delve into a question.

Actually, the best of all possible worlds already exists. Wisconsin is one of the few remaining states which grants admission to its Bar upon receipt of a degree from one of its two law schools. Even though there is this automatic admission, Wisconsin has not emasculated the curriculum of its law schools by turning them into three‑year local law Bar review courses. Both Wisconsin’s institutions are what are known as “national” law schools. This means they do not focus on local or “black letter” law. Rather, they teach an over view of legal thought and development, much like Harvard or Yale. Thus, the Wisconsin graduate’s education does not suffer as a result of the degree admission policy. In fact, other states Wisconsin attorneys like those admitted anywhere else — by granting admission to their Bar upon application after five years of practice.

The only logical conclusion to be drawn is that the Bar Exam is superfluous, and everyone knows it. Nonetheless, the powers that be continue to trivialize the profession by imposing this needless little initiation rite.

As we pull into Penn Station, two thoughts are upper‑most in my mind. One, I am not going to forget this indignity. Someday I wi1l do my part to rehumanize the process of becoming a lawyer. And two, I sure am glad I did not opt to take two Bars,  otherwise I would be facing the New Jersey essays in twelve hours!

Postscript: In October of 1983 I got a letter that I had passed the Pennsylvania Bar. Indeed, I benefitted from Pennsylvania’s — to my mind — illogical rule that a high enough score on the Multi-state portion resulted in passage without even considering the essays. On some level I was disappointed that my brilliant essays ended up falling in the forest without making a sound.  Also, despite my commitment, I have not done anything to change the Bar exam, although in my teaching of trial advocacy to law students and in presenting continuing legal education courses, I hope I have contributed to that promised humanization.

P.P.S.  Julianne passed the bar!

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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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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.((  At the time of her death in March 2018, I also wrote of Linda Brown, whose father joined the eponymous law suit on her behalf. ))

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

I was on a senior trip to Washington, DC, with 10 other members of my high school political science class (several of whom I remembered clearly and a few I didn’t recall being there until I looked at the newspaper photo accompanying a story on our trip).  I remember the chaperones: Greg Dean, our poli sci teacher, who was a nice guy, and guidance counselor, Dave Olson, who I will always remember as the adviser who tried to discourage me from applying to college, instead suggesting I consider vocational school.

The main event around which our trip was planned was Richard Nixon’s second inauguration.  In a story about our trip, the Wisconsin State Journal quoted me as saying of the inauguration: “The ceremony was very impressive, even if it was for Nixon.”  My father, who passed away last month at 88, told me that he took a lot of crap for that line, although I could tell from his crinkled eyes and poorly stifled smile that he was not the least bit displeased.

Two days after the inauguration, Lyndon Johnson died.  We were still in Washington for the funeral procession.  My most distinct memory is of Black Jack, the riderless horse with the reversed boots in the stirrups.  On January 23rd we were in the House of Representatives when Nixon announced that the Vietnam peace agreement had been reached in Paris.  That same day we met the Apollo 17 astronauts who were also visiting Congress.  It was a busy week.

On Monday, January 22, 1973, we visited the Supreme Court of the United States.  Little did I realize, in the moment, that I was present for what would become one of the best known and most controversial events in modern American jurisprudence.   Justice Harry Blackmun announced the decision of the Court.  I understood the decision was important, even though it only got 43 seconds on the evening news.

In 1973 I had no plans to be a lawyer.  My dreams of being a marine biologist had been dashed by my complete befuddlement in chemistry class (ironically, my son, Jeremy, has a doctorate in chemistry).  I was into wheel pottery, but I knew potter was not going to be my profession.

It was not until several years after that visit to the Court that I actually read the decision from that day.  I’d finally decided I wanted to be a lawyer, and Professor Murray Edelman assigned it in my college constitutional law class.  I read it again in law school when Professor Telford Taylor assigned it to my constitutional law class. (I wonder what Taylor, the former Nuremberg war crimes prosecutor, would think of my doing defense work at the successor war crimes tribunals in The Hague and Cambodia.)

Over the years I have watched courts and legislators chip away at that seminal 1973 decision.  Nominees to the Supreme Court have been asked about it in detail.  Recent appointments to the Supreme Court have placed the vitality of the decision in ever great doubt.

I haven’t been back into the Supreme Court (except in writing) since that day.  But this Tuesday, as on every anniversary since 1973, I will remember that I was in the Supreme Court of the United States when Justice Blackmun announced the 7-2 decision that would change the lives of so many, ignite 4 ½ decades (so far) of political battles and further fuel ever renewing efforts to interfere with the private decisions of American women.

On January 22, 1973, at about 10 AM, 17 year-old me listened in a hushed Supreme Court as the decision was announced in Roe v. Wade.

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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.(( 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.

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Winter Landscape with Skaters by Hendrick Avercamp

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.

After wandering around mostly deserted streets, I headed for the oh-so-convenient bus whose route dropped me practically at the door of the home of my friend Michael Karnavas, where I was staying.  Over the next hour, it finally dawned on me that despite the illuminated boards assuring that the bus was 9 minutes, then 4 minutes, then 1 minute away, before disappearing from the board altogether, the buses had ceased running.  So, I caught the tram to the beach, which I knew stopped behind the building housing the United Nations International Criminal Tribunal for the Former Yugoslavia (ICTY) a 10 minute walk from my lodgings.

As I walked back, I stopped by the Churchillplein fountain, in front of the Tribunal, to reminisce and contemplate its impending closing.

Much has been said and written about the legacy of the ICTY as it prepared to end its run at the close of 2017, not the least of which have been the waves of self-praise and a carefully choreographed farewell tour.  As an observer since 2004, with an 18 month stint as counsel for an accused in 2006-2007, I have my own less praising opinions of the ICTY’s legacy:

• I believe the stubborn refusal to meaningfully revisit and refine or reverse some of its early jurisprudence has left a legacy with dubious legal precedent.
• I believe the ceaseless, shameless, publicity seeking actions of tribunal leadership, including Tribunal presidents who sit as appeals judges, in promoting prosecution in the former Yugoslavia, defining historical truth and participating in commemorative events, taints claims of fairness and impartiality.  Not to mention the untold millions spent on these unseemly public relations activities.
• I believe the excessive attention to confidentiality, leading to mountains of confidential or redacted filings and decisions, not to mention all too often closed proceedings, undercut claims to transparent justice and undermined the credibility of the ICTY.
• I believe the inequitable allocation of resources, personnel and time to the defense of these cases needlessly undermined confidence in the system and denied many accused due process.
• I believe the failure to control the scope of the prosecutions led to trials that were too long and so unmanageable as to be incapable of rendering justice.  Just look at Prlić et al. (IT-04-74) — nearly a decade and a half from indictment to appeal judgment.
• I believe the over-selection of judges with experience confined to academia or the diplomatic corps – without trial experience as either a judge or a lawyer – has led to uneven trials and impractical decision-making.
• Finally, I believe the structure of the institution, with the prosecutor inside the tent, has exacerbated both the perception and the reality of the ICTY as an institution more concerned with convictions and finding so-called historical truths, than with insuring fair trials and protecting the rights of the accused individuals.

Perhaps I am being too harsh.  After all, as the first international criminal tribunal since the post-World War II Nuremberg and Tokyo International Military Tribunals, there was a lot of new ground to be trod.  But the ICTY has already missed no opportunity to trumpet its own accomplishments, large, small or imagined.  While I, to paraphrase Shakespeare’s Marc Antony, come to bury the ICTY, not to praise it.¹

As I contemplated the Tribunal, I recalled that even the “closing” was illusory.  I thought to myself that it was kind of like Pizza Hut (a childhood favorite of my son Jeremy), whose large sit-down restaurants have closed, but which still functions in joint locations with Taco Bell,² with the same advertising, some of the same staff and the same uninspiring pizzas.

You see, the ICTY is not really ending, it is simply folding into a successor entity with the nondescript and non-descriptive name of Mechanism for International Criminal Tribunals (MICT), whose unfortunate acronym always makes me think it an ironic abbreviation of micturate.  The MICT has been in place since 2010, operating in parallel to the International Criminal Tribunal for Rwanda (ICTR), taking over all its functions in January 2016.  Starting with a 2016 cut-off, the MICT has also begun handling trials, appeals and other matters for the ICTY.  Staff, judges and prosecutors that have been wearing two hats for a few years, will now be solely under the MICT.  Except for downsizing and routine turnover, many of the faces will remain the same.  Indeed, the President of the MICT is a four-term president of the ICTY, who held both presidencies from 2013-2016.  The Prosecutor is simply changing his letterhead.  Even the building I contemplated in the snow will remain The Hague seat of the MICT for the foreseeable future.

Unfortunately, few of the mistakes of the ICTY were corrected in designing the MICT.  Not surprising with so many of the same faces in planning and decision making.  The one area where there had been some hope for change was in the allocation of resources for post-conviction review to address after-discovered evidence and ineffectiveness of counsel claims, and for assistance of counsel relating to conditions of incarceration for this aging population of convicted persons. While the budget for self-congratulatory activities and inapt community outreach seems likely to remain robust, the funding for investigating and developing post-conviction claims still runs the gamut from non-existent to laughably parsimonious. A disappointing, but not unexpected failure.

Stopping to take a picture of the Tribunal, one small speck of light felt positive.  Just to right of the entrance-way is the office of the Association of Defense Counsel at the International Criminal Tribunals (ADC-ICT), formerly ADC-ICTY.  The ADC is unique in the world of international(ized) criminal tribunals.  It is not an organ of the ICTY, like the Defence Office of the Special Tribunal for Lebanon, or an office of the registry, like the International Criminal Court’s Office of Public Counsel for the Defence. Instead, it is an independent entity managed and financed by its lawyer members.  However, the ADC is recognized by the ICTY and MICT.   Membership in the ADC is a requirement for appointment to the list of counsel at the ICTY/MICT. It is provided office space in the Tribunal, organizes internships, manages the common spaces and equipment allocated to the defense by the ICTY/MICT, and in recent years the Registrar of the Tribunal has involved the ADC in Tribunal‑wide committees and projects.  The Registrar also consults with the ADC on major policies affecting the work of defense teams.  Though hardly a seat at the table, the formal recognition of an association of defense counsel, and a tradition of consultation, is invaluable in giving voice to the accused, through their counsel, on matters which though outside of the courtroom, affect what happens inside in many ways.  The other international(ized) courts would do well to adopt this model.

As I turned from the Tribunal building to peer through the falling snow toward the rows of international flags flapping in the median, I found that I was neither inspired nor saddened by the realization that the ICTY, as such, would soon end.  As a lawyer, practicing at the ICTY was an interesting experience.  But in the end the ICTY is too flawed to merit the historical revision and uncritical praise it is receiving.  Maybe as the baton is passed, the MICT will find a path to greater credibility and fairness, before it too rides off into the sunset.  But for now, with the same people, predilections and policies, the possibility of a different result seems remote.  A golden opportunity micturated away.

Subsequent to the publication of this essay, the MICT changed its name to the  International Residual Mechanism for Criminal Tribunals (IRMCT). I do not presume to take credit for the name change, but …

1. Compare the more diplomatic review by Michael Karnavas. ↩︎
2. Completely unrelated, I then thought about Combination Pizza Hut and Taco Bell a song by Satirical Hip-Hop group Das Racist. ↩︎

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Insulin isn’t just a drug.

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

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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.

Crossing Walnut Street, the left lane – a no stopping zone that time of day – is blocked by two cars, one unattended, and one with a driver sending text messages. Just ahead is a driverless UPS van. What can brown do for me? Try using logistics to park legally!

Across Sansom Street are two unattended FedEx vans in no stopping lanes, one on the left, one on the right. Relax, its FedEx? Hardly.

At Chestnut, eastbound cars sit in the intersection. The light changes, horns honk, no one moves. Eventually the intersection clears and traffic moves forward, only to have a car stop in a no stopping zone in front of Two Liberty Place. Moving up the block, cars and delivery vans fleck the right and left no stopping lanes, funneling traffic from four lanes to two. On Market, a SEPTA bus picks up passengers, heaves hydraulically from its knees and pulls into the intersection on a yellow light. With traffic backed up all the way from City Hall, the bus, one of those double-long articulated jobs, straddles the intersection through two complete light cycles. The bus finally clears the intersection, but 16th north of Market, narrowed due to excavation in the right lane and a mail van in the no stopping zone on the left, is backed up with cars that turned left off Market. Gridlock again.

In the mid-80’s I got caught in an intersection approaching the Holland Tunnel. It was the middle of New York’s “Don’t Block the Box” campaign and the police were out in force. The ticket was hefty. The trauma and the lesson still linger. When signs went up in Philadelphia years later I thought: its about time. I was wrong. Unlike New York, there is zero enforcement. I confess on occasion I have misjudged the flow or been cut off by a lane-hopping jockey and been left straddling a cross-walk, shamefaced, or with my rear end hanging into the intersection. But usually I am that guy sitting at the green light before an empty intersection, waiting for an opening on the other side as horns honk furiously behind me.

At the next intersection JFK is backed up from 17th. Cars in the left lane on 16th are waiting to turn left. Going straight, I stay in the left center lane. Even though the two left lanes of 16th Street are clear across the intersection, we are not moving. Why? Because a cab in the center left lane is stopped waiting to turn left onto JFK – a common, irritation and illegal (75 Pa. Code § 3331(b)) occurrence at this corner. Then the westbound traffic surges into the intersection, creating a new gridlock. At last I reach Arch and turn onto the Parkway. As I make my way to the MLK Drive, I will encounter construction chaos, disregarded lane lines and “no turns” signs that are, like the Pirate Code, considered advisory. But that is another piece.

I have seen a lot in my trip down 16th Street, but what I have not seen is a single police officer trying to keep the intersections clear or enforcing moving violations. For a few days during the transit strike their were officers in the intersection, but they are gone and things are back to normal. Nor have there been any Philadelphia Parking Authority (PPA) enforcement officers issuing tickets to the cars and vans clogging the no stopping lanes. Likewise, there are no PPA tow trucks moving those illegally stopped/parked vehicles. Where are police and PPA officers? Shift change? Donuts? Done for the day?

According to TomTom, the maker of car GPS systems, traffic in Philadelphia adds 23% to travel time, when compared with the same trip made during free flow traffic. During evening rush hour in Philadelphia travel time is increased by 50% over free flow periods.

Pittsburgh Police Officer Vic Cianca in Flash Dance

Based on a survey of Instagram posts the Auto Insurance Center, found that people feel the greatest levels of road rage during the hours between 4 and 7 PM. I, for one, didn’t need the survey to tell me that. Philadelphia was ranked 18th among the cities experiencing the most road rage.

Driving at rush hour is never going to be easy or pleasant. But opening up what are supposed to be through lanes and unlocking intersections would go a long way to speeding the journey through Center City. It’s not going to happen voluntarily though. Unless no stopping zones are enforced by PPA officers giving tickets and Parking Authority tow trucks hauling away offenders, lanes will remain stoppered. Likewise police must be available to direct traffic and enforce the rules at the major intersections. Otherwise, unmindful drivers, 100 foot long buses and cab drivers making turns from center lanes are going to continue to create gridlock.

So, how ‘bout it Police Commissioner Ross and PPA Acting Director Tolson: won’t you help reduce our travel time and stress?

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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.

On its face, these facts give rise to claims for federal constitutional violations of unreasonable force((Although the term “excessive force” is often used by practitioners and courts, my friend Paul Messing is a crusader for use of the correct term, which is unreasonable force. Paul points out that not only is “unreasonable” the language of the 4th Amendment, but “excessive” suggests a higher bar for proof of the constitutional violation, which is only whether the officer’s conduct was reasonable under the circumstances. Though I continue to slip on occasion, I subscribe to Paul’s argument.)) under the 4th Amendment to the United States Constitution, and deliberate indifference to serious medical need, under the 4th Amendment and the 14th Amendment.((The law is clear that medical need claims of sentenced prisoners, which include those held on parole or probation violations, arise under the cruel and unusual punishment prohibitions of the 8th Amendment. Likewise, medical need claims of pre-trial detainees who are detained following probable cause hearings, arise under the Due Process Clause of the 14th Amendment. Medical need claims of persons who end up not being arrested, or who are under arrest, but not yet formally charged, probably arise under the reasonable seizure protections of the 4th Amendment. The gray area involves persons who have been charged and incarcerated, but have not yet had a probable cause hearing. To be safe, I advise alleging both 4th and 14th amendment violations for persons denied medical care at any point prior to a probable cause hearing. The distinction is not merely academic. Although many courts apply the same standard for 8th and 14th Amendment denials of medical care claims, there is some suggestion that the protections for a pre-trial detainee may be greater than for a sentenced prisoner. In any event, the reasonableness standard of the 4th Amendment is certainly a lower bar that the deliberate indifference standard of the 8th and 14th Amendments. Of course, all of this is without discussion of issues of qualified immunity, which would require a War and Peace length blog post all its own!))   The facts also give rise to state tort claims for assault and battery.

The vehicle for bringing these constitutional violation claims is the Federal Civil Rights Act (42 U.S.C. § 1983). There is concurrent jurisdiction in state court for federal claims under § 1983, so the federal constitutional claims could be brought in either state or federal court. Likewise, the state tort claims would be supplemental claims (formerly known as pendent claims), over which the federal court has jurisdiction, pursuant to 28 U.S.C. § 1367. However, in Philadelphia, the City Law Department routinely removes state court cases with federal claims to federal court.((The one exception is that the Law Department sometimes will not remove a case with federal claims filed in state court as an arbitration matter, which are capped at $50,000. Civil rights cases are not subject to arbitration in federal court, per local rule.)) The usual question for an attorney contemplating suit, then, is whether to proceed on only state law claims against just the individual officers in state court, or to proceed in federal court on federal constitutional claims and state law claims against the officers and, if warranted, the municipality.

So, if you can bring all of your claims against all possible defendants in federal court, why does all of this matter? The answer is because of different procedural rules, differences in evidentiary rules, different claims and immunities, perceived differences in the judiciary, and differences in the jury pools. I will discuss some of those factors.

The biggest reason lawyers try to keep their cases in state court in Philadelphia involves the jury pool. In the FJD, the jury pool is drawn from the contiguous confines of the City and County of Philadelphia. Federal juries are drawn from the entirety of the Eastern District of Pennsylvania, which, in addition to Philadelphia, includes the four suburban counties, as well as Berks, Lancaster, Lehigh and Northampton counties. There are certainly fewer minority members in this pool than in Philadelphia. In addition to the lack of racial diversity, the conventional wisdom also holds that federal juries are generally more conservative, and less skeptical of law enforcement.((Although our colleague Jon Feinberg argues that federal jurors look askance at the City, generally, and that this skepticism of Philadelphia includes its police and officials, and trumps their general law enforcement deference)) Federal juries are also considered to be tighter with a buck, even when they find for a plaintiff. Our experience and observation has been that Philadelphia juries are better for police misconduct cases. Like any generalization, there are fact dependent exceptions, and there is no guarantee that any jury panel you ultimately draw, should your matter reach trial, will be more or less favorable.((Also, keep in mind that if a FJD case manager or judge determines that your damages are $50,000 or less, even a case filed in the FJD as a jury demand may be remanded to the arbitration program. Although, either side has a right to a de novo trial before a jury following an arbitration decision, cases on this track receive notably less attention and consideration.))

State court cases will also probably be on a slower track than those before most federal judges in the Eastern District. If you think the case is settleable, in federal court you would have access to U.S. Magistrate Judges for early settlement conferences. Most of the Magistrate Judges are experienced and knowledgeable when it comes to civil rights cases. But keep in mind that they see the City lawyers all the time and depend on them to come up with money to settle cases, while you may be pretty much a stranger, and certain to be a less frequent visitor.

As I said, if you file in federal court, your case can include both federal civil rights claims and supplemental state law claims. Additionally, suit in federal court could include the City of Philadelphia as a defendant under a Monell((Monell v. Department of Soc. Svcs., 436 U.S. 658 (1978).)) theory (civil rights violation resulting from a policy, pattern or practice of the municipality).

((To further complicate matters, if your defendant is a state trooper, then a Monell claim will not lie against the Commonwealth of Pennsylvania.  Will v. Michigan Dept. of State Police, 491 U.S. 58 (1989).)) If your officer has a history of relevant misconduct, your Monell claim against the City for failure to train, investigate or discipline the individual officer (as opposed to broader policy allegations, like failure to adequately investigate or discipline officer use of force, generally), would likely result in your being able to present evidence of that officer’s prior conduct, perhaps just through an expert witness. Such evidence in support of your claim against the City would have the collateral benefit of letting the jury know that the officer is not a choir boy. Unless you can establish a specific exception under Pennsylvania Rule of Evidence 404(b) (motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident), such evidence would probably not be admissible against the officer in state court on a pure state tort case.  Also, in the fact pattern described here, there are probably no viable state law claims against the officers who stood by and watched the beating, but there would be a federal civil rights claim for failure to protect, and perhaps one for supervisory liability if any of the bystanders were of higher rank.

If you expect to be removed from state court anyway, filing fee is another reason to file your case in federal court. The federal filing fee is a one time, flat $400, no matter how many plaintiffs or defendants. The Philadelphia fee for a jury demand case with one defendant is nearly $600 ($330 for arbitration/non-jury), with a further $11 for each additional defendant, and every time you file a motion there is a further $52 fee. Of course, if you are willing to spend the extra few dollars and are feeling lucky, you might want to file your case with federal claims in state court anyway, on the very unlikely chance that someone will screw up and miss the deadline for removal of the case to federal court.

Another factor to keep in mind is the immunity provided by the Pennsylvania Tort Claims Act, 42 Pa.C.S.§ 8541, et. seq. This Act provides that City employees, may not be held liable unless their conduct constituted willful misconduct or criminal conduct. Depending on the facts of your case, there is always the possibility that a state court could find the officers liable on the intentional tort claims, but immune due to a lack of willful misconduct or criminal conduct.((Officers can claim qualified immunity from the civil rights claims, meaning that the right in question was not clearly established, or even if clearly established, a reasonable officer would not have understood that he was violating the right. There is no such qualified immunity defense available to individual officers on state law claims, and municipalities do not have qualified immunity from federal civil rights claims)) The further problem under the Act is that the City is not compelled to indemnify an employee if they have engaged in willful misconduct or criminal conduct. So, theoretically, you could win a verdict against the officers, but find that the City will not pay that verdict. If you have not brought and prevailed on a claim against the City, a finding of willful misconduct will leave you going after the officers’ personal resources, which may not prove adequate to pay any judgment. Having said that, however, it has been our experience that the City ordinarily represents and indemnifies its police officers. Generally, the exceptions to this rule are officers who the police department’s own internal disciplinary process have found to have engaged in misconduct, or who have been charged criminally.((The City may also decline to pay the punitive damages portion of a judgment.)) Again, the City will not be a named defendant in state court without federal claims, so any judgment will be against the individual officer.

Just as the jury pool may be the most compelling reason to try to keep a case in the Philadelphia courts, the availability of counsel fees may be the most important reason to bring federal civil rights claims. Exposure to fees is often a powerful inducement to the City in deciding whether to settle a case. The example described above, even after you get an estimate for dental repair, may not represent a large damages case. However, if you prevail, after taking the case through pleadings, discovery, depositions, motion practice, and trial, counsel fees and costs could easily multiply the ultimate judgment several times over.((A wrinkle in the fee calculus is that the City may make you an offer of judgment under F.R.Civ.P. 68 early in the case. Even if you ultimately prevail, if the amount of the verdict, plus fees and costs accrued at the time of the offer, is not greater than the Rule 68 offer, your fees and costs will be capped as of the date of the offer. If you fall short, you will also be liable for your opponent’s costs (but not their fees) accrued after the date of the offer.)) Fees, whether as a prevailing party award or factored into a settlement, benefit both the client and counsel. The decision to give them up must be informed and carefully determined.

In summary: if you decide to file in state court on state tort claims, only, keep in mind that you are giving up your federal constitutional claims and with them the availability of counsel fees from defendants if you were to prevail on civil rights claims. Also, you are giving up the City of Philadelphia as a defendant, and the opportunity to expose the jury to the officer’s prior history. Finally, when proceeding only on state claims in state court, the potential immunities may result in some or all of your claims being lost, or, even if you win, you may be unable to collect. However, in the right case the advantages of proceeding in state court instead of federal court, may outweigh the disadvantages.

Whichever way you decide to proceed – just state law claims, or federal civil rights claims and state law claims – be sure that your client is fully informed and makes the final decision. Prior to filing suit in state court, my practice is to reduce the pros and cons to writing, clearly setting forth that which the client may be risking or sacrificing by choosing to proceed on state law claims only. Then I review it with my client, answer any questions, and have him/her sign to acknowledge his/her understanding and consent to filing in state court.

Whether in state or federal court, police misconduct civil rights litigation can be complex, fraught with many tiger pits filled with stakes waiting to impale you. My recommendation is to start with a modest, uncomplicated case of direct liability against an officer, without complicated theories of liability or difficult to prove damages. If you stumble upon a significant, complex case, consider referring it, or consulting or associating with an experienced civil rights litigator. In any event, be sure to vet your case carefully and be thorough in your research and investigation. Remember, there is nothing wrong with a little healthy skepticism to help make sure you are not missing flaws in your case.

And whether a newbie or a pro to this area of the law, an indispensable tool is Police Misconduct: Law and Litigation, 3d, 2014-2015 ed., by Michael Avery, David Rudovsky, et al. My well-thumbed copy of this resource is always close at hand.  If you are defending a criminal case that might result in a civil suit, get a copy of the PBI publication, Police Misconduct: Defending Criminal Cases in Pennsylvania, 2nd Edition, 2013, by Paul Messing.

Good luck.

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♦ 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 (no relation to Andrew Hamilton, the original “Philadelphia Lawyer”), 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.”

♦  The Ninth Amendment has seen a new resurgence this year as it is being held out as justification for some states refusing to abide by certain federal laws and regulations.

♦ 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).

♦  Before 1932, the Sixth Amendment right to counsel only applied to federal prosecutions.

♦ 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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