Live-blog: W&M Law ACLU hosts defense attorney David Baugh

Today I'm live-blogging from Room 133 at the Marshall-Wythe School of Law. Our ACLU chapter is hosting David Baugh. Baugh recently left private practice to serve as the Richmond Capital Defender, working for the Virginia Indigent Defense Commission. While he was in private practice he often served as a cooperating attorney for the ACLU of Virginia. His most noteworthy case with the ACLU was when he represented the Imperial Wizard of the Ku Klux Klan on a First Amendment criminal case. (Baugh is African-American.) Baugh is the son of a Tuskeegee Airman, and has a wealth of stories.

1:02 p.m.—Our chapter president, Tom Fitzpatrick, has introduced Mr. Baugh.

1:03 p.m.—"It's hard to have faith." The hardest thing to do is to teach a child to float. If you can't float, you're not deep enough in the water. Baugh's lesson: You've got to have faith in the Constitution.

1:04 p.m.—When Madison wrote the Constitution, he didn't say that certain people have rights. Everybody has those rights. Freedom of Expression: If someone else doesn't have the right to free expression.

1:06 p.m.—It's possible to come out of law school, be $200,000 in debt, and never have studied the Bill of Rights! "The Bill of Rights is a brilliant document." Baugh says he has been a member of the ACLU since he got expelled from college. (He's wearing a red and gold ACLU pin on his lapel, where politicians tend to wear American flags.)

1:08 p.m.—"The Bill of Rights is brilliant. I think George W. Bush is an asshole and I wish he'd die. Do you know what I just said is illegal in 95% of the countries in this world?" Someone asks, "Even though he's not the president anymore? "You can say Obama's an asshole. It doesn't matter."

1:10 p.m.—"The only way to protect religion is to leave it alone. That's like Kung Fu crap. It's brilliant." We have the right to bear arms. The ACLU never seems to talk about that one. "I tell my students all the time: if Jews had weapons, there never would've been a Holocaust. If deer had guns, there would be no hunting season." The right of the people to bear arms is the right to rise up against the government.

1:12 p.m.—"If any of you thinks there's a superior race, spend an hour with a Klansman. Dumb as a rock."

1:14 p.m.—"I had no doubt in my mind that O.J. Simpson was guilty, that he did it. I also had no doubt in my mind that he shouldn't have been convicted." Baugh believes this because the prosecutor was biased, the judge wasn't very bright, and the trial was a circus.

1:15 p.m.—"Every time a lawyer tries a case and a defendant gets acquitted, the system gets a little stronger." A woman asked him last night: "David, don't you worry about those technicalities?" He replied, "Those 'technicalities' are the Bill of Rights!"

1:17 p.m.—"When I was studying the philosophy of law, I realized there are two forces at work in the criminal justice system. There is order, and there is freedom. ... Those two forces are constantly at war. Order has a lot of supporters. Freedom doesn't have a lot of supporters, so I chose to work on freedom." Then Baugh realized that there is a third force: Morality.

1:20 p.m.—Baugh enters discussion of Commonwealth v. Black, 538 U.S. 343 (2003), a First Amendment cross-burning case. He represented a KKK Grand Dragon. "Little did I know that when an African-American agrees to protect the First Amendment, all hell breaks loose," Baugh says. He says this gave him some stature with his kids, because the BBC started calling the house. "They realize you're not just the fat guy who cuts the grass anymore."

1:25 p.m.—Baugh's case was to attack the Virginia cross-burning statute as unconstitutional. At the Supreme Court arguments, Baugh says that Scalia said that burning a cross is like pointing a loaded gun, not speech. "And for the first time in ten years, Clarence Thomas asked a question. You could've heard a fly piss on cotton in that courtroom."

1:28 p.m.—On whether it was tough to defend a Klansman, Baugh says it's a resounding "no." He was defending the rules.

1:31 p.m.—"Nobody is so guilty of a crime that they shouldn't get a fair trial. Nobody is so guilty of a crime that the law can presume that they did it," Baugh said. A judge's job is not to make sure that the guilty get convicted and the innocent go free, but to follow the rules, he says.

1:38 p.m.—Baugh's discussing a case he argued in New York, the bombing of a U.S. Embassy. At trial, he said he told the jury that the issue was not whether the defendant should be executed, but whether they should kill him. The judge stopped him. "Don't say 'kill,' say 'execute.'" Why's that, Baugh asks? Because killing is illegal, and execution is legal. "Well, you know what? No law was ever broken in the Holocaust."

1:41 p.m.—"The ACLU is despised by most Americans because we advocate technicalities."

1:45 p.m.—Baugh was a prosecutor for five years, and in private practice as a defense attorney for 30 years. Now he's a capital defender. "I absolutely love going to work in the morning. I have a purpose."

1:48 p.m.—"It's a wonderful feeling to have a cause," Baugh says. "Find a purpose."

Philosophy of Law lecture: Jules Coleman

1:04 p.m. - I'm going to try something new: live-blogging a lecture. This is a new lecture series on the Philosophy of Law here at the Marshall Wythe School of Law at William & Mary. W&M Law Professor Michael Steven Green is giving the introduction to Professor Jules Coleman. Coleman is the Wesley Newcomb Hohfeld Professor of Jurisprudence and Professor of Philosophy at Yale University. Coleman is the author of The Practice of Principle, Risks and Wrongs, and Markets, Morals and the Law, as well as many other books and articles in the philosophy of law and tort theory.

Prof. Green says that Prof. Coleman is a giant in torts theory.

1:05 p.m. - Prof. Coleman takes the stage in Room 141. Prof. Coleman learned from Guido Calabresi, a distinguished professor of Coleman's who "had the wrong views." He says he teaches from Calabresi's notes, but with a caveat: he puts a negation in front of what Calabresi said. (NOTE: Calabresi taught at Yale, and was nominated to the Second Circuit Court of Appeals by Bill Clinton in 1994. He still sits there today.)

1:08 p.m. - When people think about the philosophy of law, they think about it in a normative way. Tort law is not that way. What is tort law? What is essential about it? How does it differ from criminal law, contract law and other kinds of law?

1:09 p.m. - A good theory of tort law should resonate with its participants. It should be hermeneutic — participants in the kind of law should recognize their practice in a good legal theory. "I'm trying to offer a theory of tort law that makes sense to the people who are participants in it," Coleman says.

1:11 p.m. - Economic analysis. Time to talk about bad luck. Bad luck leads to people having to absorb costs. What should we do about these costs? Two obvious things: one, we should try to minimize them. Another thing is to try to spread their costs.

1:12 p.m. - Tort law provides remedies to people who get injured. If you're an economist, you might look at tort law and say it's all about deterrence. That might be plausible, but it may not resonate with the participants in practice.

1:15 p.m. - "It's a good question to ask when you're trying to offer a theory of the law: What kind of explanation are you trying to offer?" Coleman says.

1:17 p.m. - Coleman is interested in the question: Should the theory of a certain area of our social life be responsible to what participants think?

1:18 p.m. - Coleman is skeptical about the application of his theory to theories about markets. "No one in their right mind" would think that market theories should depend upon what market participants think about markets, he says. The same is true of language, and speakers of it. Linguists and language theorists don't think that language speakers should have theories about language. Who would care about such theories? Well, maybe being a judge is different, Coleman says. A judge may have to have some level of understanding about the role that a judge plays in the law. "How is law different from other kinds of social engagement?" he asks.

1:22 p.m. - Coleman makes a joke. "You're in law school, you have competent teachers. I'm supposed to slip that in three times during the lecture. I've done it at 20 after, I'll do it again at 40 after ..."

1:24 p.m. - Coleman mentions that his theory is corrective justice. "Sounds good, doesn't it? What kind of justice do you stand up for? Corrective justice. As opposed to what? Incorrective justice." The audience laughs.

1:25 p.m. - Coleman provides the elements of torts: duty, breach, harm. He cites Justice Cardozo in Long Island R.R. But what makes these the elements of torts? What does a theory of torts try to accomplish? For most people who make theory about torts, he says, it's about trying to predict the outcome of cases. They're not trying to say why duty matters, why breach matters, etc.

1:28 p.m. - The economic theory of torts is uninteresting to Coleman, unless it has one more thing. Is it an accidental relationship between the theory and the outcomes of cases, or is there a mechanism at work that connects the theory to the outcomes of cases.

1:30 p.m. - "I actually think very highly of myself as a torts theorist," Coleman says. Now he makes a joke about being a psychotherapist, being aspirational, and being Jewish. A number of people are laughing. I'm typing furiously and I don't know the Jewish-psychotherapy connection, so I don't get it.

1:33 p.m. - Coleman is trying to engage a 1L, who's not laughing at his jokes. This lecture is being filmed, by the way. Not sure how or when it will be available.

1:34 p.m. - Coleman believes the paradigmatic tort is a wrong, not an accident. If I want to understand tort law, I should want to understand intentional torts, he says. Coleman switches gears to contracts and specific performance being the paradigmatic remedy for contracts. HYPO: Let's say I promise to paint your house ("very unlikely," he says). Someone comes up to him and says, you promised to paint my house, but you didn't paint my house. There's no reason for you not painting my house. Why does the person who asked for the house to be painted need to provide a special reason for having the painter paint the house? If you think that contracts are promises, you would think about why specific performance is appropriate, when it is appropriate.

1:40 p.m. - Coleman's making a joke, plugging his book because he has children in the arts and has to support them.

1:42 p.m. - When an economist looks at tort law, he sees three things: accidents, costs, and liability as a mechanism for shifting costs. "As a philosopher, I see more concepts, and different ones," Coleman says. "I see rights and wrongs. I see responsibility. I see costs as a mechanism for holding people accountable. I don't see costs at all. They're not primary to me. The notion of duty is primary to me, and an action contrary to a right is primary to me."

1:44 p.m. - When Coleman looks at tort law, he sees it as a subject already influenced by some working theory he has of it. He doesn't look at it in a completely normative, neutral way. In contracts, he wants specific performance. On the philosophical side, he says there are moralists in the theory of tort law. "I take great pride in the fact that no student of mine ever holds a theory that I hold," Coleman says. Even though he's a legal positivist, and legal positivism is the most common legal theory, he says that no student of his is a legal positivist.

1:48 p.m. - Coleman says that Richard Epstein is an institution, who cranks out legal ideas faster than anyone, and has views about everything.

1:52 p.m. - The lecture is going to have to end soon, sadly, because many students and professors in the room will have to attend 2:00 classes. Looks like there won't be time for questions.

Here are the next two lectures in the series (courtesy of the W&M Communications office):

March 19, 1 PM, Room 141: Michael S. Moore, Walgreen Chair and Co-Director, Program in Law and Philosophy, University of Illinois College of Law. Professor Moore is the author of Educating Oneself in Public, Placing Blame, and Act and Crime, as well as many other books and articles in the philosophy of law and criminal law theory.

March 26, 3:30 PM, Room 127: Lawrence A. Alexander, Warren Distinguished Professor, University of San Diego Law School. Professor Alexander is the author of Is There a Right of Freedom of Expression?, Whom Does the Constitution Command? (P. Horton co-author), and The Rule of Rules: Morality, Rules, and the Dilemmas of Law (E. Sherwin co-author), as well as many other books and articles in the philosophy of law, constitutional law, and criminal law theory.

1:55 p.m. - Coleman has given a summary of people doing philosophy of law — stuff he's interested in. He's giving a reading list, a sort of Who's Who in the Philosophy of Law today.

Williamsburg or Iowa — Which one is a Yankee Cesspool?

Well, of course neither Williamsburg nor Iowa constitutes a "Yankee cesspool." But at least on the website of the Daily Press, Williamsburg's newspaper, this qualifies as a debate.

On Friday, the newspaper published a letter I wrote about a constitutional amendment in the Virginia General Assembly, that would have automatically restored voting rights to nonviolent ex-felons once they serve their time. (I first blogged about the Restoration of Voting Rights project last fall.) Here's the letter:

The Virginia House Privileges & Elections Committee dealt a setback to positive change on Friday, effectively killing (for this year) a constitutional amendment that would allow non-violent ex-felons the right to vote. Virginia is one of only two states in the U.S. that permanently bars ex-felons from voting, even after they have paid their debt to society.

This portion of the Virginia Constitution is a shameful reminder that racism persists even today, because most ex-felons in Virginia are black. Once these residents have served their time, they should have their voting rights restored automatically. All free Virginians should have the right to vote. Our House of Delegates should know better than to keep Jim Crow laws on the books.

What startled me was the response the letter got. For a short time on Friday, it was one of the most viewed items on the Daily Press website. By Saturday, readers had left a total of 43 comments. Let's just say they weren't all supportive of the idea that once a person has completed his prison sentence, he should get his rights back. Never mind that this is the law in 48 of the 50 states — only Kentucky and Virginia lag behind. Here's a sample of the comments:

#6: Has anyone ever noticed how 98.7% of the left wing liberal letters to the editor come out of my hometown of Willamsburg?

We have so many yankees living here now it's like living in New York City.

They bring their left wing liberal socialist attitudes with them. Yankee go home !!!

#12: ... If you feel so strongly about this maybe you should be in the lower income neighborhoods counseling black youths against committing criminal acts and less time in lavish Williamsburg.

#13: Williamsburg is a cesspool of liberals. If those elitists had to live in Hampton or Newport News in the same neighborhoods as the felons, they would have a different attitude.

#35 (in response to #13): They had sense enough to move from the Yankee cesspool and move to Williamsburg.

#19: ... [T]he fact is that one third of the Blacks in this are have substantial criminal records and have dropped out of school. To participate in a Republic, you need to be an informed voter; hence the Founding Fathers when evaluating the intellectual capacity of a certain class decided they would count as 2/3s. So it's one man, 2/3d vote. Besides they don't pay taxes, they are paid by the taxpayer.

You get the idea. My original point in the letter, the one that stirred the pot, was "that racism persists even today." I stand by that point.

On a more exciting note, the United States Supreme Court has agreed to hear a monumental case in the world of criminal justice, determining whether criminal defendants have a constitutional right to DNA evidence that could definitively show their innocence (or strongly implicate them in the crime). An Alaska man who was convicted of kidnapping and rape has asked the courts for access to sperm left in a condom the night that two men abducted a prostitute, raped her, and left her for dead on the side of a road. The DNA could almost certainly prove whether the man participated in this horrible crime. At trial, the driver of the car (who had already pleaded guilty) said that William Osborne rode in the passenger seat that night, and participated in the crime. Osborne's trial lawyer never asked for access to the DNA, and he was convicted. On appeal, however, a new lawyer — presumably, one who believes that Osborne is actually innocent — argued that Osborne has a right to this critical scientific evidence. The Ninth Circuit Court of Appeals agreed, citing a pivotal Supreme Court case, which says that criminal defendants have a right to evidence that tends to show that the defendant did not commit the crime. The Court decided that case, Brady v. Maryland, back in 1963 — long before DNA evidence came about.

If the Court finds that Osborne does have a constitutional right to the DNA evidence, then criminal defendants across the country will be able to ask for this sort of evidence. This would be a fantastic development, because it will likely result in scores of exonerations. The government will be forced to disclose DNA, and innocent people will be set free. One would think that states and the federal government would support this, but they do not want to pay for the testing. So, the states and the feds argue that defendants do not have a constitutional right of access to DNA evidence. I disagree.

The Supreme Court will hear arguments on March 2 in William Osborne's case, District Attorney's Office for the Third Judicial District v. Osborne. The Washington Post has a good story about the case, and SCOTUSblog provides a detailed look at the facts.