Commentary Archives - Law Offices of Popper & Yatvin

World Serious

Alan L. Yatvin — Wed, 21 Oct 2020 18:46:55 +0000

In this season of the Major League Baseball World Series, I am sharing a confession I wrote in October 1985. The 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

Alan L. Yatvin — Fri, 17 May 2019 18:57:32 +0000

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

May 17, 2004

Facts to Know, Tell On Landmark Case

By Alan L. Yatvin
Special to the Legal Intelligencer

The popular media are replete with articles, editorials and TV specials marking the 50th anniversary of Brown v. Board of Education and the end of the “separate but equal” doctrine that served to foster racial segregation in public education. However, I wanted to offer my colleagues a lawyer\’s take on the people and events surrounding that watershed decision. Hence, to commemorate the occasion, here are some facts you may not have known about Brown:

✦ Brown was the culmination of a long line of cases brought to challenge racial segregation in public education, dating to an 1849 case brought in Boston. In Kansas, alone, 11 such cases were brought between 1881 and 1949.

✦ Brown was the product of a campaign conceived by NAACP counsel Charles Hamilton Houston and advocated by his protege and successor Thurgood Marshall and Jack Greenberg, both of the NAACP Legal Defense Fund. In 1948, the NAACP board of directors formally adopted Marshall’s plan by deciding to concentrate its efforts on an all-out attack on segregation in education. During the next three years, the NAACP commenced or joined the five cases that were ultimately consolidated under Brown.

✦ At oral argument in Brown, John W. Davis, co-counsel for the South Carolina appellees, quoted W.E.B. DuBois in support of the argument that it was more harmful to black children to thrust them into an integrated environment where white children, teachers and parents despised, resented, mocked, neglected, bulled and literally rendered life a living hell.”

✦ DuBois, a Harvard graduate, who famously wrote, “I was in Harvard but not of it,” was one of the founding members of the NAACP in 1909. He was the passionate editor-in-chief of the NAACP’s magazine, Crisis.

✦ Oliver Brown, the name plaintiff in Brown, was one of nearly 200 plaintiffs from four states and the District of Columbia, challenging “separate but equal” educational systems. The only case in which relief was granted the plaintiffs was Belton v. Gebhart, in the Delaware Court of Chancery. The young chancellor who ordered integration of the Delaware schools was Collins Seitz Sr., who went on to become a judge of the 3rd U.S. Circuit Court of Appeals.

✦ Brown was first argued in December 1952. In June 1953, the U.S. Supreme Court ordered reargument to be held in October at the start of the new term. Just before reargument, Chief Justice Fred Vinson died unexpectedly. Vinson was believed to have supported continuation of segregation under the “separate but equal” standard. Remarking on Vinson’s passing, Associate Justice Felix Frankfurter is reported to have quipped, “It’s the first indication I’ve had that there is a God.”

✦ President Eisenhower nominated Earl Warren to replace Vinson on Sept. 30. The court rescheduled argument for December. Warren, who was confirmed as chief justice by the Senate in March 1954, delivered the unanimous opinion of the court on May 17. Even though his Justice Department argued in support of desegregation in Brown, Eisenhower disliked Brown and failed to publicly endorse the decision. He felt it was a mistake to start with schools, rather than public accommodations.

✦ The original 1952 argument in the consolidated Brown cases commenced at 1:30 p. m. on Tuesday, Dec. 9, recessed overnight, and continued shortly after noon the following day. Marshall ended his rebuttal argument by stating: “But the rights of the minorities … have been protected by our Constitution, and the ultimate authority for determining that is this court. I think that is the real difference. As to whether or not I, as an individual, am being deprived of my right is not legislative, but judicial.”

✦ The Supreme Court severed Bolling v. Sharpe, the District of Columbia case, from the Brown cases, because the 14th Amendment was not applicable to the District of Columbia. On the same day the Supreme Court declared in Brown that “separate but equal” violated the Equal Protection Clause of the 14th Amendment, it handed down a decision in Bolling, ruling that racial segregation in the District of Columbia public schools violated the Due Process Clause of the Fifth Amendment.

✦ Sociological evidence was presented in the lower courts to demonstrate that “separate but equal” had a devastating effect on African-American children. This evidence included research by Dr. Kenneth Clark, who showed black dolls and white dolls to African-American children and asked them to chose the good dolls. They chose the white dolls. Robert L. Carter, a U.S. Senior District Court Judge, who argued the Brown case with Marshall, was the principal advocate of including this sociological evidence. Eastern District of Pennsylvania Senior Judge Louis H. Pollak, who was part of the Brown team, argued against the inclusion of the sociological evidence, asserting that it was unnecessary.

✦ The Supreme Court cited the Clark research in support of its decision in Brown. In January of this year, Pollak, sitting with Carter on a forum at Howard University Law School, told Carter, “You were right and I was wrong.”

✦ Pollak was on all the Brown briefs, along with Philadelphian William T. Coleman Jr., Oliver Hill and Carter, Constance Baker Motley and Jack B. Weinstein, author of the definitive treatise on the Federal Rules of Evidence.

✦ On May 31, 1955, the Supreme Court handed down Brown II, which ordered desegregation with “all deliberate speed.” The court’s use of the term “all deliberate speed” is regarded as a catalyst for the student protests that launched the civil rights movement, because many Southern states took advantage of the vagueness of the order to thwart integration. Prince Edward County in Virginia, a defendant in one of the consolidated Brown cases, chose to close its public schools for five years rather than honor the Brown II order.

✦ One of the signatories to Brown II was Justice John Marshall Harlan II, who was nominated to the court in the year between Brown I and Brown II, upon the sudden death of Justice Robert Jackson. Harlan, who became known as the “Great Dissenter” of the Warren Court, was the grandson of Justice John Marshall Harlan. The first Justice Harlan, a Kentuckian and former slave owner, was named for John Marshall, the first chief justice of the Supreme Court. When he joined the Supreme Court in 1877, Harlan was the only law school graduate among the nine sitting justices. He was also the lone dissenter in the 1896 decision in Plessy v. Ferguson. It was in Plessy that the Supreme Court established the “separate but equal” doctrine that became the constitutional basis for segregation.

✦ Harlan’s Plessy dissent argued that forced segregation stamped blacks with a badge of inferiority. This same line of argument became a decisive factor in Brown, where the Supreme Court expressly overruled Plessy. In his Plessy dissent, Harlan coined the phrase “Our Constitution is colorblind.” Southern District of New York Senior Judge Constance Baker Motley, an attorney with the NAACP legal team during Brown and the first African-American woman appointed to the federal bench, recalls that during the Brown fight, Thurgood Marshall picked himself up in low moments by reading aloud from Harlan’s Plessy dissent.

✦ In 1979, three young African-American attorneys in Topeka, Kan., petitioned the district court to reopen Brown to determine whether the school board had eliminated all vestiges of discrimination. That case, known as Brown III, resulted in the Topeka Public Schools building three magnet schools. [Linda Brown joined that suit as a plaintiff.]

✦ On Tuesday, May 11, 2004, one week before the 50th anniversary of the decision in Brown v. Board of Education, a state district court judge sitting in Topeka issued an order essentially closing the Kansas Public Schools for the coming school year, due to the failure of the Legislature to provide sufficient funds to ensure constitutionally adequate education to poor, disabled and minority children in Kansas. Brown v. Board of Education was one of the authorities cited by the court.

✦✦✦✦

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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January 22, 1973, at about 10 AM

Alan L. Yatvin — Tue, 22 Jan 2019 15:01:23 +0000

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.

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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Gideon v. Wainwright: Facts to Know and Tell

Alan L. Yatvin — Fri, 29 Mar 2013 23:52:14 +0000

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 (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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