Guild Newspage 3

“NLG Presents...” and Summer Retreat

page 4

Wal-Mart v. Dukespage 5

Safeguarding CorporateInterests

page 6

Civil Rights & Criminal Casespage 7

First Amendment Cases page 9

Designers Circus - NLGFundraiser

page 11

Mass DissentSeptember 2011 www.nlgmass.org Vol. 34, No. 5

The Supreme Court

September 2011 Page 1

Each September we reviewthe prior term of the UnitedStates Supreme Court. Lastterm, as always, broughtsome interesting cases andeven some surprises, though itwas without blockbusters,like 2010's Citizen’s United ornext term’s expected decisionon the health care legislation.Next term, as the New YorkTimes has pointed out, mayinclude the most significantclash between the SupremeCourt and a president sincethe New Deal.

This last term shows aCourt where Justice Robertshas further consolidated hispower and where businessinterests generally predomi-nate. The Wal-Mart andAT&T cases, which we writeabout in this issue, signifi-cantly cut back class actionrelief and were sought andwelcomed by business. TheFirst Amendment - and wewrite about three FirstAmendment cases from lastterm - continues to trump vir-tually everything else for con-servatives, who use it fre-quently to protect businessinterests.

Perhaps the surprise ofthis term was JusticeKennedy’s joining the moreliberal justices to requireCalifornia to reduce its prisonpopulation, while the Court’scivil rights and criminal dock-et otherwise continued to be a“mixed bag,” see the articlesbelow.

The Court for the firsttime has three women jus-tices, with only the ChiefJustice and Justice Alito inagreement more often (96%of the time) than newestJustices Kagan andSotomayor. Justice Kennedyremains the swing vote, andhe cast the decisive vote in alltwelve of the closely-dividedcases where the four more lib-eral justices were on one sideand the conservatives on theother. Justice Kennedy votedwith the majority most often,94% of the time, with the con-sensus-building (and conser-vative) Chief Justice a closesecond at 91%. JusticeKennedy’s votes, in particu-lar, may be of momentousimportance in the comingterm.

- David Kelston -

In This Edition

BOARD MEETING

September 20, 6:00 pm

14 Beacon St., 1st Fl.Boston

Massachusetts Chapter National Lawyers Guild 14 Beacon St., Boston, MA 02108

September 2011 Mass Dissent Page 2

BOARD OF DIRECTORS

CHAIRPERSONNeil Berman, Common Sense Legal Counseling

TREASURERSPatricia Cantor

Jeff Petrucelly, Petrucelly, Nadler & Norris

MEMBERSLaura Alfring, CPCS Youth Advocacy Dept.

Makis Antzoulatos, CPCS

Thom Cincotta, Political Research Associates

David Conforto, Conforto Law Group, P.C.

Hillary Farber, UMass Dartmouth

Jeff Feuer, Goldstein & Feuer

David Kelston, Adkins, Kelston & Zavez

Jonathan Messinger, solo practitioner

Halim Moris, Moris & O’Shea

Gráinne O’Neill, Harvard Law School

Josh Raisler Cohn, CPCS

Judy Somberg, solo practitioner

Bonnie Tenneriello, Prisoners’ Legal Services

Jessica White, Prisoners’ Legal Services

LAW STUDENT REPRESENTATIVESRaymond Austin, Northeastern

Ryan Hidden, New England

Tyler Cullis, BU

Zach Lown, Northeastern

Lauren Marcous, WNEC

Lindsay Vick, Roger Williams

STAFF

EXECUTIVE DIRECTORUrszula Masny-Latos

LRS COORDINATOR/ADMIN. ASSIST.Barbara Lee

STREET LAW CLINIC COORDINATORLipou Laliemthavisay

Mass Dissent (ISSN 0887-8536) is publishedmonthly except January, May, July and Augustby the National Lawyers Guild, Mass. Chapter,14 Beacon St., Suite 407, Boston, MA 02108.Second-class postage paid at Boston, MA.POSTMASTER: Send address changes toMass Dissent, NLG, 14 Beacon St., Suite 407,Boston, MA 02108.

NATIONAL LAWYERS GUILDMassachusetts Chapter, Inc.

14 Beacon St., Suite 407Boston, MA 02108

tel. 617-227-7335 • fax: 617-227-5495nlgmass@igc.org • nlgmass-director@igc.org

www.nlgmass.org

Street Law Clinic Project: The Street Law Clinic project providesworkshops for Massachusetts organizations that address legal needs ofvarious communities. Legal education workshops on 4th AmendmentRights (Stop & Search), Landlord/Tenant Disputes, Workers’ Rights,Civil Disobedience Defense, Bankruptcy Law, Foreclosure PreventionLaw, and Immigration Law are held at community organizations, youthcenters, labor unions, shelters, and pre-release centers. If you are a Guildattorney, law student, or legal worker interested in leading a workshop,please contact the project at 617-723-4330 or nlgmass-slc@igc.org.

Lawyer Referral Service Panel (LRS): Members of the panel provide legalservices at reasonable rates. Referral Service Administrative/OversightCommittee members: Neil Berman, Neil Burns, Joshua Goldstein, JeremyRobin, and Azizah Yasin. For more information, contact the Referral ServiceCoordinator at 617-227-7008 or nlgmass@igc.org.

Foreclosure Prevention Task Force: Created in June 2008, the TaskForce’s goal is threefold: (1) to draft and introduce policies that addressissues that homeowners and tenants of foreclosed houses face, (2) to pro-vide legal assistance to these homeowners and tenants, and (3) to con-duct legal clinics for them. If you are interested in working with the TaskForce, please call the office at 617-227-7335.

Mass Defense Committee: Consists of two sub-committees: (1)“Legal Observers” (students, lawyers, activists) who are trained to serveas legal observers at political demonstrations and (2) “Mass DefenseTeam” (criminal defense attorneys) who represent activists arrested forpolitical activism. To get involved, please contact the office at 617-227-7335.

Litigation Committee: Established in 2010, the Committee bringscivil lawsuits against large institutions (such as government agencies,law enforcement, banks, financial institutions, and/or large corporations)which engage in repressive or predatory actions that affect large numbersof people and that serve to perpetuate social, racial and/or economicinjustice or inequality. To get involved, please contact the Guild office.

NLG National Immigration Project: Works to defend and extend thehuman and civil rights of all immigrants, both documented and undocu-mented. The Committee works in coalitions with community groups toorganize support for immigrant rights in the face of right-wing politicalattacks. For more information contact the NLG National ImmigrationProject at 617-227-9727.

NLG Military Law Task Force: Provides legal advice and assistanceto those in the military and to others, especially members of the GIRightsHotline, who are counseling military personnel on their rights. It alsoprovides legal support and helps to find local legal referrals when need-ed. For advice and information, GI’s can call 877-447-4487. To getinvolved, please contact Neil Berman (njberman2@juno.com) orMarguerite Helen (mugsm@mindspring.com).

Join a Guild Committee

September 2011 Mass Dissent Page 3

ARTICLES FOR MASS DISSENT

The October issue of Mass Dissent will focus on prisoners’ rights.

If you are interested in submitting an article, essay, analysis, or art work (cartoons, pictures) related to the topic,please e-mail the articles to nlgmass-director@igc.org.

The deadline for articles is September 15.

GUILD NEWSThe

Massachusetts Chapter’s “NLG Presents...” andHappy Hour takes place on the 2nd Wednesday ofevery month, 5:30-7:30pm, at Kennedy’s MidtownPub, 44 Province St., 2nd Fl., Boston. This month’sevent will be held on Wednesday, September 14.Please join us! (See below.)

Youare invited to a special event for the NLGMassachusetts Chapter! See page 11.

Thisyear’s NLG Membership meeting will be held onTuesday, October 4, 5:30pm, 14 Beacon St.,Conference Rm, 1st Fl., Boston. After a cheese &wine reception we will discuss resolutions and amend-ments submitted for a vote at the NLG Convention.

The2011 NLG National Convention will take place inPhiladelphia from October 12 to 16 at Crowne PlazaHotel (1800 Market St., tel. 215-561-7500). To register:https://www.nlg.org/members/convention/registration/.

NLG HAPPY HOUR

Street Law Clinic ReportThe following clinics and trainings were conducted for membersof Boston area community organizations and agencies:

June 2: Legal Observer training for law students at RogerWilliams University Law School in Bristol, RI, by ChrisWilliams.

June 24: Stop & Search clinic for student activists in prov-idence Youth Student Movement, RI, by Chris Williams.

August 9: Workers’ Rights clinic Chelsea Collaborative,by BU student Brian Balduzzi and attorney Mark Stern.

NATIONAL CONVENTIONDESIGNERS CIRCUS

MEMBERSHIP MEETING

NLG Presents...

CCAARROOLL GGRRAAYY

Tahrir Square and ItsAftermath

WWeeddnneessddaayy,, SSeepptteemmbbeerr 1144,, 2200111155::3300 ppmm

Kennedy’s Midtown Pub44 Province St., 2nd Fl., Boston

NLG member Carol Gray was studyinginternational human rights law in Egyptand doing an oral history of one of Egypt’sleading human rights organizations whenthe Arab Spring started. Through slidesand videos, Carol will relay accounts ofdemonstrations, crackdowns, and heroism.

WESTERN MASSACHUSETTS NLG HAPPY HOUR

Members from Western Massachusetts organized an NLG happyhour event on June 16 - the first general Guild gathering in recentmemory. About 20 people attended from Western Massachusettsand Vermont, and since it was a beautiful evening and we werehaving fun on the outdoor deck, it went on for about 3 hours. Itwas a good mix of veteran and young lawyers, law professors,law students, legal workers, community friends and allies, andeven a (former) jailhouse lawyer. Everyone in attendance wasexcited about Guild events and wanted more, and a follow-upevent is being planned. Attendees also started talking about col-laborating on substantive projects.

Welcome Barbara Lee

In June, after 2.5 years of outstanding work, SaraDeConde left the Guild office. We are thrilled to wel-come our new employee - Barbara Lee. Barbara isa recent graduate of Northeastern University and isplanning to pursue a legal profession.

On a hot (very hot!) and humid July day, over 20Guild members converged in Cambridge for theChapter’s annual Summer Retreat. At this half-a-

day event, we analyze the Guild’s current work anddiscuss future campaigns and programs. And, obvi-ously, all discussions are accompanied by great foodand beverages. Hope to see you next year!

September 2011 Mass Dissent Page 4

“NLG Presents...”: A Lively Report Back from ChapterMembers Just Returned from Cuba

Ben Evans, Judith Liben, and Judy Somberg,having just returned from a ten day Guild trip toCuba, lead a lively discussion about the current real-ity of life in Cuba. They showed photos, talkedabout the contradictions there, such as housing forall, but with a virtual inability to change location,and wondered about the impact of the new econom-ic initiatives. Some non-Guild participants ques-tioned whether the Cuban revolution had broughtpositive changes at all. The three travelers all

agreed that the trip was a fascinating experience andthat the Guild needs to continue to work to end UShostilities to Cuba, including the US embargo, UStravel restrictions, and imprisonment under harshrestrictions of the “Cuban Five”.

(above): Laura Alfring shows in a cake that she brought to theRetreat how she appreciates the Guild. Laura Rocks!

(right): After dinner, the participants enjoyed the cake andcontinued with debating and strategizing.

NLG Summer Retreat

(left): Panelists Judith Liben, Judy Somberg, andBen Evans lead a conversation on “Life in Cuba.”

(above): Happy Hour participants watch with excite-ment a wonderful slide show prepared by Ben.Photos by Sara DeConde and Urszula Masny-Latos

Photos by Jonathan Messinger & Urszula Masny-Latos

he Supreme Court’s recent 5-4 decision to deny class certi-

fication in Wal-Mart Stores, Inc. v.Dukes, 131 S.Ct. 2541 (2011)struck a blow to group justice. Inthe suit, the three named plaintiffsalleged that female employees atWal-Mart stores were discriminat-ed against in promotions and paydecisions as a result of the com-pany’s corporate practices, whichinclude a policy of allowing man-agers to exercise discretion inemployment matters. The Court(Chief Justice Roberts andJustices Scalia, Kennedy,Thomas and Alito) held that theplaintiffs did not establish com-monality among the class—theexpert testimony of a sociologistwho determined that Wal-Mart’scorporate culture was vulnerableto discrimination and evidencefrom approximately 120 womenwho experienced discriminationwas not enough to convince theCourt that gender discriminationis common to all Wal-Mart stores.

In so ruling, the Court failedto recognize the need for groupjustice, essentially insisting thatdiscrimination only exists in rela-tion to individuals in the absenceof an explicit policy of discrimina-tion. Although this decision is thelatest and most jarring in theCourt’s discrimination jurispru-dence, it is not an aberration.Protection against discriminationwas at its peak after the CivilRights Act of 1964, when theSupreme Court clearly was will-ing to scrutinize the record care-fully to see if discrimination asalleged in a complaint existed infact. Federal Rule of CivilProcedure 23(b)(2) was amend-ed during this time, in part to pro-tect certain classes from discrimi-

nation, since class actions werean effective way of attacking per-vasive discrimination in society.However, beginning withMcCleskey v. Kemp in 1987, theCourt’s rulings slowly strippedaway this widespread protection.Now, the Court presumes thatthere is no discrimination whenfaced with a discrimination suit,and it imposes ever-more-strin-gent requirements for proof.Clearly these rulings reflect theCourt’s attitude that discrimina-tion is no longer pervasive in oursociety, or that if it is, it no longerneeds to be remedied in court.

It hardly needs to be said thatthese assumptions are incorrect.Although we have come quite away as a society over the past 47years, gender discrimination andits effects still exist. Womenreceive 77 cents to the male dol-lar, they are less often promoted,and only approximately 14% ofexecutive officers at Fortune 500companies are female. It is illu-minating to note that all three ofthe female justices were in thedissent on the issue of class cer-tification, acknowledging that aninherent bias against women isstill present in society. JusticeGinsberg, dissenting, noted that“[m]anagers, like all humankind,may be prey to biases of whichthey are unaware. The risk of dis-crimination is heightened whenthose managers are predomi-nantly of one sex, and aresteeped in a corporate culturethat perpetuates gender stereo-types.”

Perhaps the majority ofmales on the Court do not havethe requisite experience to com-prehend the continued existenceof pervasive gender discrimina-tion. In rejecting the notion that apolicy of discretion is one of dis-crimination in such a large corpo-

ration, the majority seemedincredulous that widespread dis-crimination could exist. JusticeScalia asserted that it is “unlikelythat all managers would exercisetheir discretion in a common waywithout some common direction.”The majority did not believe thatdiscrimination could occurthroughout such a large group,accepting Wal-Mart’s argumentthat the class was too large toshare a common issue. The pro-posed class included around 1.5million women—those womenwho had been employed at aWal-Mart store any time afterDecember of 1998. Although 1.5million is certainly a large num-ber, it is undeniable that all thesewomen come within the sameambit as Wal-Mart employeesand that they were all subject tothe same corporate culture andsocietal influences. Had theCourt acknowledged the exis-tence of pervasive discriminationand the idea of group justice, itlikely would have found sufficientcommonality in the class.Instead, by accepting Wal-Mart’sarguments, the Court came closeto creating a large-employerexception to justice.

A result of the Wal-Mart rulingis that plaintiffs will bring smallerclass actions that are morefocused on particular instances ofdiscrimination. Instead of beingable to attack broad-sweepingdiscrimination at its root, plaintiffswill be limited to challenging indi-vidual manifestations of the com-pany’s practices. Presumably theCourt’s ruling will also affect allother employment discriminationcases, not just those concerninggender. Class action suitsbrought for race, color, religion,and national origin will need tomeet this higher burden of com-

September 2011 Mass Dissent Page 5

Wal-Mart Stores, Inc. v. Dukes: A Loss for Group Justiceby Meredith Carpenter

T

Continued on page 10

September 2011 Mass Dissent Page 6

Supreme Court 2011 - Safeguarding Corporate Interests:from American’s Citizentry One Terrible Decision at a Time

n an April 27, 2011 decision,AT&T Mobility LLC v.

Concepcion, 131 S.Ct. 1740(2011), the Supreme Court duti-fully returned to its most pressingrecent work: sticking it to the littleguy. The Court “green lighted”corporate contracts which barconsumer class actions national-ly, and tilted the legal playing fieldtoward corporate giants, even inadvance of its Wal-Mart Stores,Inc. v. Dukes decision.

Background:AT&T v. Concepcion

AT&T v. Concepcion arose fromAT&T’s charging Vincent and LizaConcepcion $30.22 in sales taxesfor a phone the company adver-tised as free. The Concepcionsalleged fraud and false advertis-ing, bringing an eventual classaction complaint in California fed-eral court, rather than a bilateralarbitration as mandated in theirAT&T sale and service contract.The Concepcions argued thatCalifornia law barred such con-tract provisions as uncon-scionable.

Justice Antonin Scalia, writ-ing for the five justice majority(the Chief Justice and JusticesKennedy, Thomas and Alito),opined that AT&T’s bilateral arbi-tration provision was entirelylegal. Lower courts, in both theSouthern District of California andthe Ninth Circuit, had previouslyrecognized that California statelaw (set forth in the CaliforniaSupreme Court’s 2005 DiscoverBank case) rejected, as uncon-scionable, contractual provisionsbarring class-wide arbitration incontracts of adhesion. The

Supreme Court majority, howev-er, reasoned that the FederalArbitration Act [“FAA”] §2 – withits “principal purpose” to “ensurethat private arbitration agree-ments are enforced according totheir terms“ – preempted theCalifornia Discover Bank rule andallowed for exactly such contrac-tual arbitration limitations.

The Ugly InnardsThe Court’s majority lingered onthe benefits of bilateral arbitrationas an informal process, the dan-ger of allowing consumers todemand class-wide arbitration expost, and, tellingly, concerns that“class arbitration greatly increas-es risks to defendants.” Themajority also made much of the“generous” benefits in AT&T’sarbitration provision. Those ben-efits – including a $7,500 premi-um for claimants winning an arbi-tration award greater than AT&T’slast settlement offer—might, ormight not, be generous to individ-uals depending on implementa-tion. But such benefits certainlyhelp the everyday unrepresented,non-filing consumer less than aclass action – whether in AT&T orfuture conflicts (where less attrac-tive arbitration prizes will surelyexist).

The majority opinion alsounflinchingly dismissed the factthat California had limited theDiscover Bank rule specifically toprovisions in contracts of adhe-sion. In brutal honesty, Scaliaacknowledged “the times in whichconsumer contracts were any-thing other than adhesive arelong past.” In short, the majorityrecognized that consumers hadneither bargaining power to alterterms before entering contracts,nor the right to challenge, effec-

tively, those terms later by pool-ing resources.

The AT&T dissent, penned byJustice Stephen Breyer, empha-sized that the California law “fallsdirectly within the scope of theAct’s exception permitting courtsto refuse to enforce arbitrationagreements on grounds that exist‘for revocation of any contract.’”Advancing – somewhat amusing-ly – under a federalist banner, thedissent further noted “we havenot … applied the Act to strikedown a state statute that treatsarbitrations on par with judicialand administrative proceedings.”Pragmatically, the dissent alsowarned the decision would fosterthe abandonment of consumerclaims, rather than supportingand streamlining generous corpo-rate bilateral arbitration systems.

Dismantling the Class ActionMechanism: What Next?

Before the end of the day,America’s behemoth commerciallaw firms began publicly pushingclients to adopt AT&T-like arbitra-tion provisions in consumer,employment, and other contracts.

In the meantime, just how farthe AT&T decision reachesremains in question. Variouscommentators have declared theend of consumer class-actionrights (or, precisely, class-actionrights in consumer contract situa-tions), and beyond. Other advo-cates have begun looking to othergrounds (whether substantivefederal laws, or other) for invali-dating AT&T-esque class actionwaivers.

The AT&T decision in factprompted immediate action bysome members of Congress, whointroduced The Arbitration

by Jeff Thorn

I

Continued on page 10

September 2011 Mass Dissent Page 7

he Court again this term vin-dicated criminal defendants’

rights under the ConfrontationClause, while also (again) creat-ing significant obstacles to civilrights suits by those accused ofcrimes. Somewhat surprisingwas the Court’s decision affirminga lower court Eighth Amendmentdecision requiring California sig-nificantly to reduce its prison pop-ulation.

The Confrontation ClauseCase

The old adage that politics makesfor strange bedfellows appliesequally to constitutional law, asJustices Ginsburg, Sotomayorand Kagan teamed up withJustices Scalia and Thomas toextend Constitutional protectionsfor criminal defendants. In itsrecent decision in Bullcoming v.New Mexico, 131 S.Ct. 2705(2011), the United StatesSupreme Court applied its earlierholding in Melendez-Diaz v.Massachusetts, 129 S.Ct. 2527(2009) to reverse a DUI convic-tion from the State of NewMexico. In so doing, the Courtrejected the prosecutor’s attemptto admit a blood-alcohol concen-tration (“BAC”) test result througha surrogate witness in lieu of tes-timony from the lab technicianwho performed the test and certi-fied the lab report. TheBullcoming case involved adrunk-driving prosecution inwhich the prosecutor – at theeleventh hour – decided not tocall the lab technician who per-formed the forensic blood alcoholtest and certified the BAC report(the lab technician was put onunpaid leave shortly before trial).

The prosecution attempted toadmit the lab report through asurrogate witness who purported-ly was familiar with the testingprocess and lab procedures.

The US Supreme Courtrejected the prosecutor’s use of asurrogate witness and ruled thatthe admission of the lab reportwithout testimony from the labtechnician who performed thetest and drafted/certified the BACreport violated the ConfrontationClause. In light of the Melendez-Diaz decision, which was decidedwhile the Bullcoming case waspending before the New MexicoSupreme Court, the lab reportwas clearly testimonial in nature,“rendering the affiants ‘witnesses’subject to the defendant’s right ofconfrontation under the SixthAmendment.” Bullcoming v. NewMexico, 131 S.Ct. at 2712. Inaffirming the admission of theBAC report at trial, the NewMexico Supreme Court sought todistinguish this case fromMelendez-Diaz by down playingthe role of the lab analyst, essen-tially comparing his role to that ofa scrivener. Id. at 2713. TheNew Mexico Supreme Court rea-soned that the BAC report couldbe admitted through testimonyfrom a surrogate witness from thelab who could provide “experttestimony” concerning lab proce-dures, the testing process, themachine used to test the blood-alcohol levels, and who would besubject to cross-examination. Id.This argument failed to pass con-stitutional scrutiny, according tothe Supreme Court, for severalreasons. First, the Court empha-sized the important need for thelab analyst to testify about howthe BAC test was performed, cit-ing the legitimate concern forhuman error in performing the

tests and certifying the results.Id. at 2711, Fn. 1 (citing reportsthat 93% of errors in laboratorytests for BAC levels are humanerrors that occur either before orafter machines analyze samples,with Amici citing that in Coloradoalone there have been at least206 flawed blood-alcohol read-ings over a three year span). Inaddition, the surrogate witnesscould not convey what the labanalyst who performed the test atissue “knew or observed aboutthe events his certification con-cerned, i.e., the particular testand testing process heemployed”, id. at 2715, nor didthe State claim that the lab ana-lyst was unavailable. Id. at 2716.

Finally, the Supreme Courtruled unequivocally that the BACreports, like the lab reports inMelendez-Diaz, were testimonialand subject to the ConfrontationClause’s protections. Id. 2716-17(in “ all material respects, the lab-oratory report in this case resem-bles those in Melendez-Diaz).

A “Single” Brady Violation WillNot Support A Civil Rights

RemedyIn Connick v. Thompson, 131S.Ct. 1350 (2011), JusticeKennedy joined the reliable con-servative bloc (the Chief Justiceand Justices Scalia, Thomasand Alito) to hold that a “single”Brady violation, see Brady v.Maryland, 373 U.S. 83 (1963),apparently however egregious,is insufficient to support a civildamages remedy.

John Thompson spent 18years in prison, 14 on death row,before his innocence - and prose-cutorial misconduct - was estab-lished a month before he was tobe executed. Thompson wasconvicted in 1987 of murder and

The Court’s Civil Rights and Criminal Casesby Noah Rosmarin

T

Continued on page 8

a later armed robbery. The pros-ecutors withheld both eyewitnessdescription of the murderer thatdid not match Thompson andblood from the armed robberyassailant that was notThompson’s - in fact, the bloodsample was removed from thepolice property room whenThompson’s attorney inspectedthe physical evidence.Thompson, denied critical excul-patory evidence despite hisBrady requests, was convicted ofboth crimes.

There were four prosecutors,working together, directlyinvolved in Thompson’sLouisiana convictions, and oneactually confessed to another thathe had intentionally suppressedthe blood evidence. Despite theoverwhelming evidence of prose-cutorial misconduct, Louisianaretried Thompson for the murder.The jury, seeing the evidencewithheld at Thompson’s first trial,deliberated only 35 minutesbefore finding him not guilty. InThompson’s subsequent civilsuit, the jury specifically foundthat the prosecutor’s office with-held exculpatory evidence andthat Thompson’s rights wereinfringed by the office’s deliberateindifference to establishing poli-cies and procedures consistentwith Brady. The jury awardedThompson damages of $14 mil-lion.

It is hard to imagine a casewhere the violation of theaccused’s rights was more perva-sive or more was at stake -Thompson was saved from exe-cution only by his own investiga-tor’s literal last-minute discoveryof one part of the suppressed evi-dence. But Justice Thomas, writ-ing for the five-member majority

(the Chief Justice and JusticesScalia, Kennedy and Alito), heldthat the prosecutor’s office couldnot be liable without proof, ineffect, of a pattern of similar con-stitutional violations by untrainedemployees. Moreover, the major-ity held, four reversals of convic-tions by the Louisiana courts forBrady violations in the ten yearsbefore Thompson’s trials wasinsufficient to put the prosecutor’soffice on notice of the need forproper training. And see Kyles v.Whitley, 514 U.S. 419 (1995) (thissame prosecutor’s office failed todisclose various exculpatory evi-dence in another capital case).

The fact is that the Brady vio-lations in Thompson’s cases“were not singular and they werenot aberrational,” as JusticeGinsburg wrote, 131 S.Ct. at1384, and this case would seemto demonstrate that this Court -unless Justice Kennedy changeshis mind - is unwilling in theextreme to deter Brady violations,all too common as they are, byimposing real civil remedies.

Prison OvercrowdingAnd in a refreshing development,Justice Kennedy, writing for him-self and the more liberal bloc(Justices Ginsburg, Breyer,Sotomayor and Kagan), affirmedthe judgment of the three-judgedistrict court ordering a substan-tial reduction in the Californiaprison population within twoyears. Brown v. Plata, 131 S.Ct.1910 (2011). California, themajority found, had tolerated seri-ous constitutional violations in itsprison system for years, causedby substantial overcrowding, andthe only feasible remedy left toremedy these Eight Amendmentviolations was a court-orderedreduction of the prison popula-tion.

California’s prisons weredesigned to house about 80,000inmates, but the population wastwice that size at the time of twoclass action lawsuits, one repre-senting prisoners with seriousmental illness not receiving mini-mal adequate care, and the otherrepresenting inmates with otherserious medical problems. Thethree-judge district court found,and the majority affirmed, byclear and convincing evidence,see 18 U.S.C. sec. 3626(a)(3)(E)(the Prison Litigation Reform Actof 1995), that prison overcrowd-ing was the primary cause of thedeprivations of the prisoners’basic Eighth Amendment rights,and that the long-standing depri-vations could only be redressedby a reduction of the prison popu-lation. Additionally, the Courtfound, California’s prison popula-tion could be reduced by about50,000 inmates without adverselyaffecting public safety by, forinstance, diverting low-riskoffenders to community pro-grams.

Underlying the Court’s affir-mance of the three-judge districtcourt was its clear recognitionthat, in light of California’s mas-sive fiscal problems, and theextraordinary time that hadpassed since the constitutionalviolations were first acknowl-edged (16 years in the case ofthe prisoners denied minimallyadequate mental health servic-es), there was no practical possi-bility that California could addressthe violations short of significant-ly reducing the prisoner popula-tion. Nor, the Court made clear,was there any reason to believethat California would or evencould honor past promises, includ-ing, for instance, to build additionalprison facilities.

September 2011 Mass Dissent Page 8

The Court’s Civil Rights and Criminal CasesContinued from page 7

Continued on page 10

September 2011 Mass Dissent Page 9

he Court handed down threeFirst Amendment decisions,

each with a different majority,each appearing to vindicate FirstAmendment rights, and only oneclearly unfortunate (the Arizonaelection case). But a consistenttheme in the cases appears to bea mistrust of government thatcould augur poorly for preserva-tion of the health care bill intact.

First, the unfortunate result -and one consistent with CitizensUnited v. Federal ElectionCommission, 130 S.Ct. 876(2010), and the Court’s clearunwillingness to tolerate attemptsto control money in electoral poli-tics. In Arizona Free EnterpriseClub’s Freedom Club v. Bennett,131 S.Ct. 2806 (2011), the Courtstruck down Arizona’s publicfinancing law. Chief JusticeRoberts wrote for the five-membermajority, including Justices Scalia,Kennedy, Thomas and Alito.

Then-Senator Obama pri-vately raised three-quarters of abillion dollars for his 2008 presi-dential race. Had he opted to staywithin public financing guidelines,he would have received just over$100 million in public funds.Clearly, optional public financingof elections, at least at current lev-els, will never replace privatemoney in the most important elec-tions. But public financing, whichis aimed at limiting the corrosiveeffect of private campaign contri-butions, may still have a chance inlocal elections. (Currently, aboutone-third of the states have publicfinancing election laws.) But thisbecame an even slimmer possibil-ity with this case.

Buckley v. Valeo, 424 U.S. 1(1976), held that large politicalcontributions may result in “politi-

cal quid pro quos” that underminedemocracy, and it declared thepresidential public financing sys-tem constitutional. Arizona’smodest law gave public funds tocandidates who opted into thesystem, and addressed publicfinancing’s main problem - how toset the subsidy at a realistic level- by augmenting the initial pay-ment with additional paymentsbased on the spending of thepublicly financed candidate’sopposition. Thus, a candidate forthe Arizona senate who opted forpublic financing (and its limits),got an initial subsidy of $21,479,and twice that amount morebased on his/her opponent’sspending, to a total subsidy of$64,437. Yet, in reasoning thatturns common sense on its head,the majority found that this sub-sidy impermissibly burdens thefree speech of the privately fund-ed opponent, in violation of theFirst Amendment. Thus, a sub-sidy that was intended to, andapparently did, create morespeech and more debate, wasstruck down as supposedly doingthe opposite.

Underlying Free EnterpriseClub, like Citizens, is a single anddisturbing fact: this Court hasdecided that attempts to “level theelection playing field” are impermis-sible under the First Amendmentand, even when the states provideother rationales - like fighting cor-ruption in politics - their laws willnevertheless be subject to intrusivescrutiny that is highly suspicious ofanything that attempts to limit pri-vate money in politics.

In Brown v. EntertainmentMerchants Association, 131 S.Ct.2729 (2011), Justice Scalia, writ-ing for justices who often findthemselves in disagreement(Kennedy, Ginsburg, Sotomayorand Kagan, Alito concurring),

engaged in what seemed to be aroutine First Amendment analysisto strike down a California statutethat prohibited sale of violentvideos to minors without parentalconsent. Justice Scalia rea-soned: 1) video games qualify forFirst Amendment protection; 2)government has no power torestrict expression because of itscontent, except in a few well-rec-ognized areas, primarily obsceni-ty; 3) new categories of speechmay not be classified as “unpro-tected” by government; 4)because California’s law imposesa restriction on the content of pro-tected speech, it is invalid unlessit passes strict scrutiny, that is, itis justified by a compelling gov-ernment interest and is narrowlydrawn to serve that interest; 5)the California statute does notmeet that standard, andCalifornia cannot show even a“direct causal link between violentvideo games and harm tominors.” Id. at 2738.

While the majority’s analysesseems uncontroversial (and cer-tainly more convincing than theAlito, Roberts concurrence onvagueness grounds), one cannothelp but think that, at least in part,its outcome is motivated by a kindof anti-government animus, seeid. at 2735 (rejecting “expansiveview of government power”) andthat the Court, had it wanted to,could easily have found a way tojustify California’s modest controlson video games graphicallydepicting, for instance, decapita-tions and making players into “vir-tual”rapists, mass murderers, andthe like. Justice Breyer’s dissentfound a compelling interest inCalifornia’s need to protect par-ents’ “authority in their own house-hold to direct the rearing of theirchildren,” id. at 2767, and his opin-

The Court’s First Amendment Casesby David Kelston

Continued on page 10

T

monality. Additionally, the rulingmay affect class action suitsinvolving other areas of law:any case where a pattern of acorporate culture is at issue willrequire more individualizedallegations of unlawful prac-tices.

And if plaintiffs are forcedto bring individual suits, theywill not bring the social changethat is still greatly needed. Thegoal of class action litigationunder Rule 23(2)(b) is often toobtain injunctive and declarato-ry relief to end a discriminatoryor otherwise harmful practice—money damages may not bethe primary goal. In individual

suits, plaintiffs will likely focusmore on money damagesrather than injunctive relief; andin fact, most aggrieved employ-ees are unlikely to have theresources, financial or emo-tional, to bring individual suits.The Wal-Mart decision doesnot just affect the livelihood ofclass action attorneys, as somewould have us believe; it alsoremoves a crucial tool for rem-edying societal infirmities.

September 2011 Mass Dissent Page 10

Brown v. Plata is animportant case, though per-haps the underlying situationthere, and California’s fiscalcrisis, are extreme. But thefact is that many states arein fiscal extremis, this isunlikely to change soon, andfiscal considerations canmotivate good criminal jus-tice policy (consider thedefeat of death penaltyefforts in Massachusetts).This case, again showingthe importance of one man -Justice Kennedy - is aweight on the right side ofthe scale.

Criminal Cases First Amendment Cases

Meredith Carpenter is a 2L stu-dent at Cornell Law School.She worked as the intern forthe new Litigation Committee ofthe NLG MassachusettsChapter this past summer.

Continued from page 5

Continued from page 8

Continued from page 6

Wal-Mart Stores, Inc. v. Dukes AT&T v. Concepcion

Fairness Act of 2011, broadly ban-ning mandatory pre-dispute arbitra-tion agreements in consumer,employment and civil rights matters,and specifically eliminating classaction waivers. Finally, others havenoted the Consumer FinancialProtection Bureau, newly operatingas of July 21, 2011, has also beenempowered to take action againstanti-consumer provisions, thoughCongress may, in turn, upend anysuch decisions.

At present though, there’s just atad less justice for the little guy.

Jeff Thorn is an Associate at Adkins,Kelston & Zavez, P.C. in Boston.

ion seems perfectly reasonable. Like much this last term, this

case may be a part of a preview toa showdown on the health care act.

Finally, there is Snyder v.Phelps, 131 S.Ct. 1207 (2011), like-ly not an opinion that breaks anynew ground, but nevertheless inter-esting - and appreciated - as show-ing again how vigorous the FirstAmendment can be in serving itspurpose of protecting unpopularspeech. In Snyder, where onlyJustice Alito dissented, the“Westboro Baptist Church” - appar-ently little more than the Phelps fam-ily - had been held liable (to the tuneof almost $12 million) for intentionalinfliction of emotional distress uponthe Snyder father by virtue of thechurch’s picketing the funeral ofMarine Lance Corporal MatthewSnyder, killed in Iraq. While thechurch’s picketing did not directlydisrupt the funeral, their activities -

including signs reflecting their beliefthat God hates the United Statesbecause of its tolerance of homo-sexuals and kills American soldiersas punishment - caused the Snyderfather great distress.

But the Court rightfully foundthe church’s activities protected, ifunpopular speech that could not beabridged by civil tort remedies: “Ifthere is a bedrock principle under-lying the First Amendment, it is thatthe government may not prohibitthe expression of an idea simplybecause society finds the idea itselfoffensive or disagreeable,” id. at1219, quoting Texas v. Johnson,491 U.S. 397 (1989). It is good tobe reminded that the core purposeof the First Amendment is otherthan promoting business interestsand thwarting government attemptsto, say, make elections more dem-ocratic.

Noah Rosmarin is an attor-ney at Adkins, Kelston &Zavez.

David Kelston is an attorney atAdkins, Kelston & Zavez.

Continued from page 9

September 2011 Mass Dissent Page 11

NLG Massachusetts Chapter Sustainers YES, INCLUDE MY NAME AMONG NLG MASSACHUSETTS CHAPTER

SUSTAINERS!

I, _____________________________________, ammaking a commitment to support the MassachusettsChapter of the Guild with an annual contribution of:

_____ $500 (not including my membership dues)

$ ________ (other above $500)

As a sustainer I will receive:• special listing in the Dinner Program;• 1/8 page ad in the Dinner Program;• acknowledgement in every issue of Mass Dissent;• two (2) free raffle tickets for a Holiday Party raffle;• invitation to special events.

Three ways to become a sustainer:• contribute $500 or more a year (not including dues)• pair up with another person and pay $250 each, or• join the “Guild Circle” and pay $50/month minimum.

Please mail to: NLG, Massachusetts Chapter14 Beacon St., Suite 407, Boston, MA 02108

In the spring of 2003, the Massachusetts Chapter of the NLG initiatedthe Chapter Sustainer Program. Since its inception, the Program hasbeen very successful and has been enthusiastically joined by the fol-lowing Guild members:

Adkins, Kelston & Zavez • 2 Anonymous •Michael Avery • Samuel Berk • Neil Berman •Howard Cooper • Barb Dougan • Robert Doyle •Melinda Drew & Jeff Feuer • Carolyn Federoff •Roger Geller & Marjorie Suisman • Lee Goldstein& Shelley Kroll • Benjie Hiller • Stephen Hrones• Andrei Joseph & Bonnie Tenneriello • MyongJoun • Martin Kantrovitz • Nancy Kelly & JohnWillshire-Carrera • David Kelston • EleanorNewhoff & Mark Stern • Petrucelly, Nadler & Norris• Hank Phillippi Ryan & Jonathan Shapiro • AllanRodgers • Martin Rosenthal • Sharryn Ross •Anne Sills & Howard Silverman • Judy Somberg• Stern, Shapiro, Weissberg & Garin

The Sustainer Program is one of the most important Chapter initiatives tosecure its future existence. Please consider joining the Program.

SSuunnddaayy,, SSeepp.. 2255,, 2200111122::0000 -- 66::0000 PPMM11 BBrraaiinnttrreeee SStt..,,

AAllllssttoonnThe store will be open only for us!

Bring your family and friends!Win a raffle for a $100 gift card

for shopping.

Drinks and snacks provided!Free parking.

Please RSVP to 617-227-7008 ornlgmass@igc.org

The “love child of haute couture and Filene’sBasement,” Designers Circus is an under-the-radarclothing event, sample sale, warehouse sale, pop-up store - all in one!

Find unique and few-of-a-kind women’s clothescreated by over 70 local and national designers,all discounted from 50-90% off retail price.

Mass DissentUSPS 0760-110 PERIODICAL

The National Lawyers Guild is...

Periodical

Postage & Fees

PAIDUSPS Permit

0760-110

" ... an association dedicated to the need for basic change in the structureof our political and economic system. We seek to unite the lawyers, lawstudents, legal workers and jailhouse lawyers of America in an organiza-tion which shall function as an effective political and social force in theservice of people, to the end that human rights shall be regarded as moresacred than property interests. Our aim is to bring together all those whoregard adjustments to new conditions as more important than the venera-tion of precedent; who recognize the importance of safeguarding andextending the rights of workers, women, farmers, and minority groupsupon whom the welfare of the entire nation depends; who seek actively toeliminate racism; who work to maintain and protect our civil rights andliberties in the face of persistent attacks upon them; and who look uponthe law as an instrument for the protection of the people, rather than fortheir repression."

Preamble to the Constitution of the National Lawyers Guild,originally adopted February 22, 1937, and most recentlyamended in July 1971.

Please Join Us!

Dues are calculated on a calendar year basis (Jan.1-Dec.31)according to your income*:

Jailhouse Lawyers. . . . . . . . . . . . . . . . . . . . . . . . . . . . FreeLaw Students . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $25up to $15,000. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $40over $15,000 to $20,000. . . . . . . . . . . . . . . . . . . . . . . $50over $20,000 to $25,000 . . . . . . . . . . . . . . . . . . . . . . . $75over $25,000 to $30,000 . . . . . . . . . . . . . . . . . . . . . . . $100over $30,000 to $40,000 . . . . . . . . . . . . . . . . . . . . . . . $150over $40,000 to $50,000 . . . . . . . . . . . . . . . . . . . . . . . $200over $50,000 to $60,000 . . . . . . . . . . . . . . . . . . . . . . . $250over $60,000 to $70,000 . . . . . . . . . . . . . . . . . . . . . . . $300over $70,000 to $80,000 . . . . . . . . . . . . . . . . . . . . . . . $350over $80,000 to $90,000 . . . . . . . . . . . . . . . . . . . . . . . $400over $100,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $500

* Any new member who joins after September 1 will be carriedover to the following year. Dues may be paid in full or in quarter-ly installments. Dues of $80 cover the basic membership costs,which include publication and mailing of Mass Dissent (theChapter's monthly newsletter), national and regional dues, and theoffice and staff. No one will be denied membership because of inability to pay.

Fill out and send to:National Lawyers Guild, Massachusetts Chapter14 Beacon St., Suite 407, Boston, MA 02108

NAME: ___________________________________________________

ADDRESS: _______________________________________________

CITY/STATE/ZIP: __________________________________________

PHONE: (w)____________________________ (h)________________

E-MAIL: __________________________________________________

FAX: _____________________________________________________

Circle one:Lawyer Legal Worker Law Student Jailhouse Lawyer

Alumna/Alumnus of ___________________________ Year _________

Dues (from schedule): ________________________________________

I am interested in working on the following projects:_____ Lawyer Referral Service_____ Street Law Clinic_____ Mass Defense Committee_____ Litigation Committee_____ Mass Dissent (monthly publication)_____ National Immigration Project