Articles Posted in Legal News and Views

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The attempted assassination of former President Donald Trump on Saturday was a dreadful and unspeakable event, marking a significant and alarming blow to America’s already tenuous grasp on democracy and the rule of law. Such an attack on an individual campaigning for the highest office in the nation is not just an act of violence against a person but a direct assault on the foundational principle that every voter has the right to choose their representatives freely and without fear.

The health of a democracy relies on the steadfast rejection of political violence as a tool to silence opponents, particularly those whose views we find most objectionable. The moment we resort to such means, we undermine the very fabric of democratic society. For democracy to thrive, it is essential to tolerate a broad spectrum of views, even those that challenge our own beliefs. Respecting the choices made by the electorate, even when they result in the election of candidates we vehemently oppose, is crucial.

.Amherst professor Austin Sarat in his essay, Trump Assassination Attempt is the Latest Threat to America’s Already Fragile Democracy, But it is Not the One, published in VERDICT, discusses this topic in greater detail. Quoting from professor Sarat’s  introduction:

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Trump v. United States: No.23-939. Argued April 25, 2024-Decided July 1,  2024.

The Supreme Court ruled on Monday that former President Donald J. Trump is entitled to substantial immunity from prosecution, delivering a major statement on the scope of presidential power. The vote was 6 to 3, dividing along partisan lines. The ruling makes a distinction between official conduct of a president and the actions of a private citizen. The high court’s 6-3 ruling along ideological lines sends the case back to the lower court to determine what acts alleged in Donald Trump’s indictment on charges of trying to subvert the 2020 election are official or unofficial.  A dissent from the liberal wing laments a vast expansion of presidential power.

“The decision will almost surely delay the trial of the case against him on charges of plotting to subvert the 2020 election past the coming election in November. If that happens and Mr. Trump wins, he could order the Justice Department to drop the charges.”                                                                                                                                                                                                                                        Adam Liptak, New York Times.

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On June I attended a CLE webinar, AI in Criminal Justice: Automated Decision-making Tools and Technology, From Policing to Corrections, sponsored by the Civil Rights and Social Justice Section of the American Bar Association. Below is a brief description of topics covered and a list of useful resources for those interested in pursuing these topics in greater detail:

Panelists discussed automated decision-making tools used by law enforcement, prosecutors, defense attorneys, judges, and corrections officials.  They explained a panoply of tools, including genealogical DNA investigations, predictive policing technologies, risk assessment algorithms and facial recognition technology.  The panel offered perspectives on the purported benefits of the tools, and the potential harms of the tools, especially adverse racial impacts. In addition, the panel  discussed new technologies and other tools now available to defense counsel to help level the playing field with the resources available to prosecutors.

Panelists

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The recent high-profile trial of former president Donald Trump has reignited discussions on the role of jury instructions in shaping verdicts.  This post is based in part on the following query we asked Gemini following the triaI: I need a broad discussion of jury instructions and charges to the jury in trial courts of the state of New York. The following explores the purpose and content of jury instructions in New York courts. We’ve also included a link to the final instructions and a transcript from the recently concluded trial of Donald Trump

Jury instructions and charges are a cornerstone of a fair trial in New York courtrooms. They act as a bridge between the complex legal world and the understanding of laypeople on the jury. Let’s delve into the significance of this exchange and the considerations involved. For more detailed information see: New York Criminal Jury Instructions and Model Colloquies.  For the latest additions and revisions see CJI2d & MC History. For New York Civil Jury Instructions see  CPJI- Civil Pattern Jury Instructions –all from the New York State Unified Court System.

The Importance of Clear and Precise Instructions

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This posting includes an excerpt from the Report on the Investigation Into Unauthorized Removal, Retention, and Disclosure of Classified Documents Discovered at Locations Including the Penn Biden Center and the Delaware Private Residence of President Joseph R. Biden, Jr. prepared for the Attorney General of the United States by Special Counsel Robert K. Hur and his staff, and a link to the entire document.

EXCERPT:

“We conclude that no criminal charges are warranted in this matter. 1 We would reach the same conclusion even if Department of Justice policy did not foreclose criminal charges against a sitting president.

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Lawyer listservs are often used by attorneys and other professionals to help keep up with changes in the law. But they pose some potential for violating confidentiality model rules

On May 8, the American Bar Association Standing Committee on Ethics and Professional Responsibility released  formal opinion 511 which provides guidance for when a lawyer can seek advice on a listserv. It finds that model rules in most cases forbid posting questions or comments related to representation of a client, even in hypothetical or abstract form.

“Formal Opinion 511 cites Rule 1.6, which deals with confidentiality and the possibility of unethical behavior under ABA Model Rules of Professional Conduct. The formal opinion finds possible ethical problems ‘if there is a reasonable likelihood that the lawyer’s questions or comments (on a listserv) will disclose information relating to the representation that would allow a reader then or later to infer the identity of the lawyer’s client or the situation involved.'”

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Election administrators and their staff, spread throughout thousands of voting jurisdictions in the United States, perform a core service dedicated to maintaining and preserving our democracy. Their work has become significantly more difficult, as our contentious politics have clouded much of what they do with misunderstanding and distrust. These challenges have made clear that election administrators may, and typically do, lack the full range of resources they need.

As election officials gain both increasing  public visibility and scrutiny, it has become increasingly obvious that the time has come for identifying the ethical standards unique to the election administrator profession. It is essential to identify national standards for election officials that provide guidance  in the administration of voting throughout the United States.  It is therefore encouraging to learn that  the American Law Institute (ALI) has provided a forum, released to the public on January 29, 2024, for a working group developing such standards, resulting in a report Ethical Standards for Election Administration

The report sets out seven principles, discussed in detail, along with the basis for each. It is the hope of the working group that these principles provide the professional election administration community with a common vocabulary for communicating the moral underpinning of their work; assist in the training of the next generation of officials; and help guide officials in carrying out their responsibilities when the law does not supply the answer and public scrutiny is keenest. These principles also supply the grounds for specific standards of conduct that reflect these principles and put them into practical effect.

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According to responses to the 2024 ABA Survey of Civic Literacy, 74% of individuals surveyed said that U.S. democracy is weaker than it was five years ago. Most blamed misinformation, disinformation, and political parties for contributing to this result. The survey is released each year to mark Law Day, observed annually on May 1. The responses are from a nationally representative telephone survey of 1,000 respondents from March 4-9. Here is an overview of some of the results as reported by the ABA on their website: followed by a link to the full text of the survey.

Democracy “A large majority — 74% — said U.S. democracy is weaker today than it was five years ago. Only 13% said it is stronger. Among those who said our democracy is weaker, nearly 1 in 3 (31%) said the primary cause is misinformation and disinformation. Nearly as many (29%) blamed the political parties. Less than 10% blamed social media or lack of civility. The survey also asked who should be primarily responsible for safeguarding our democracy. More than a third (37%) said it is mainly the responsibility of the general public — yet half of all respondents (exactly 50%) said the general public is not very informed about how democracy works.
Elections
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Thinking back on my fifty plus years as a practicing law librarian, I have come to believe that criminal law is one of the more humanistic of legal disciplines because it can reach people at such a personal level. Paul H Robinson* and Sarah M Robinson capture this thought in their book, “American Criminal Law: Its People, Principles, and Evolution” (Routledge 2022). It offers a refreshing take on this complex subject.

This book breaks away from dry legal jargon and  instead weaves a compelling narrative that explores the history, core concepts, and ongoing debates within American criminal law. The authors write, “Criminal law is one of the most interesting perspectives on the human adventure,… it requires us to examine how we want people to act, what we will do when they act improperly, and how we decide what we can reasonably expect of people. And to do this, we must assess what makes a successful society, what citizen protections and obligations a society should enforce, as well as the principles of justice that the community shares.”

The authors’ strength lies in their engaging, approach. Each chapter delves into a specific principle, like legality or culpability, by presenting a historical case that illuminates its foundation. This is then contrasted with a modern case, highlighting the evolution of the concept. This back- and- forth through time keeps the reader engaged and demonstrates how the law adapts to societal changes.

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The United States has an important lead in the development of artificial intelligence that is crucial to the country’s economy and national security, Attorney General Merrick B. Garland said at the American Bar Association’s 39th National Institute on White Collar Crime in San Francisco. “The Justice Department’s first job is to protect that lead and to protect our intellectual property,”… . According to Garland, “the Justice Department just will not tolerate theft of trade secrets in the area of artificial intelligence.”

From the ABA announcement:

During a fireside chat with Kenneth A. Polite Jr., former assistant attorney general for the U.S. Department of Justice’s Criminal Division, Garland announced that the U.S. District Court for the Northern District of California had unsealed an indictment against a Chinese national who is charged with stealing AI-related intellectual property and trade secrets from Google.Garland said AI and other evolving technologies have “great promise and the risk of great harm … including algorithmic discrimination that AI can foster and the way in which it can accelerate the cyberattacks that are happening daily, even ‘minutely,’ on our companies, on our law firms, on our departments of the government and on our military.”
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