U.S. Supreme Court Upholds the Voting Rights Act (For Now)

Yesterday the Supreme Court did not, as expected, strike down the 1965 Voting Rights Act in Northwest Austin Municipal Utility District Number One v. Holder. That legislation was passed and intended to rectify the appalling history of disenfranchising African-Americans. In relevant part, the Act requires covered jurisdictions and their subdivisions (including Texas, the State in this case) to seek Justice Department pre-clearance of election-related changes, such as re-districting. Affected jurisdictions may, however, seek "bail-out" from these requirements. The issue here was whether Section 5 of the Act was unconstitutional if the affected subdivision could not obtain bail-out.

The Supreme Court did not address the constitutional question. The "avoidance doctrine" was cited as a basis to avoid the issue. The decision is found here. It has been reported that, based upon the oral argument, it was expected the Court would strike down the Act as unconstitutional. That is precisely what the lone dissenting Justice, Clarence Thomas, would have done. He claims there is no evidence that there is any continuing racial discrimination in the elections of the covered districts, so that the race-conscious remedy is unnecessary and unlawful.

The Justice Department and civil rights groups were pleased by the decision. The tenor of the Court's decision makes apparent that, if addressed in the future, the Act will likely be declared unconstitutional.

Sammy Sosa Steroid Disclosure - Breach of Attorney Confidentiality Obligations

It has been widely reported that Sammy Sosa's results from the MLB "anonymous" drug testing, from 2003, have been leaked by to the press by an attorney. The positive results for steroids have been reported by The New York Times. Lost amid the hubbub about another sports hero's reputation further sullied is the issue about the source of disclosure.

It has been reported that one of several attorneys involved in the process must have leaked it. I have absolutely no idea if that is the case. If true, it is quite disturbing to me, as a practicing attorney, who has been trained not to reveal information obtained during the course of representation. There is no "juicy information" exception to confidentiality obligations.

Yet, in practice, the confidentiality obligation is sometimes honored in the breach. Some attorneys wrongly believe that disclosing to a journalist as an anonymous media source is proper. It is not. I suppose the premise of this thought process is that he or she will never be found out. But not getting caught is not the basis to disclose confidential information.

Other attorneys may believe that disclosure is proper if your client (who may be other than Sosa) is not hurt by the disclosure. I would think this is incorrect also. I suspect that the attorneys involved - possibly for MLB or another entity - expected complete confidence. Indeed, the entire basis for the testing was anonymity.

If there was a breach of confidentiality obligations, then the source may be subject to sanction under the relevant State's disciplinary system. But we, of course, do not know the source. I doubt we ever will.

Even if there is a breach, this does not help Sammy Sosa. The fact is that, if true, the information may and will be used against him in the court of public opinion. That court is a lot less forgiving - and has fewer known procedural rules for preventing - prejudice to those anonymously accused.

If the information is false, then perhaps Sosa has the basis for a defamation and/or libel claim. But there are many hurdles to such a suit. The New York Times is likely protected from liability under the applicable standards. The source will likely never become known because the Times will fight tooth and nail to prevent disclosure under the press shield laws. They will probably win this battle.

So an anonymous steroids test was not really anonymous. Shocking. The upshot is that MLB will never again be able to claim anonymity for players providing information supposedly in confidence. Like everything else in life, secrecy is relative and always subject to question.

NJ State Trooper Trial - Thorough Defense but Uninspired Closing

Attorney William Subin is defending State Trooper Robert Higbee in a vehicular homicide trial in Cape May County, NJ. He has called multiple experts to discuss highly technical aspects of the accident reconstruction and Higbee's "amnesia" about certain aspects of the crash. He has called 39 character witnesses. Higbee testified extremely effectively, a sure sign that he was well prepared. In my opinion, Subin has done an extremely thorough job. In my further opinion, this tragic situation should NOT have resulted in any criminal charges in the first place.

My respectful disagreement with Subin -- a fine attorney -- is the manner by which he presented his closing argument today. Subin remained, true to form, extremely thorough and thoughtful. Yet, respectfully, I feel that Subin missed the opportunity to take the upper hand and to harness the natural advantages of his position. Subin is, after all, a dream defendant. An unblemished State trooper, former football star, community volunteer, friend to everyone, ever-helpful and polished. He spends his days and nights protecting the public. Thirty-nine of his friends, colleagues and acquaintances all agree that Robert Higbee is one of the best people they have ever met. He is the poster boy for a good citizen.

Instead of jumping right in and pounding on these obvious points with every fiber of his being, Subin instead spent more than an hour parsing for the jury the most boring and technical minutiae of the vehicular homicide statute and jury charges. By doing so, he virtually conceded that the jurors should be hyper-critical in their review of Higbee's actions that night.

But this is not a bench trial. This is not a civil trial. This is a criminal trial where twelve people -- including some who were brought to tears by Higbee's earlier testimony -- will make a fundamental choice: does Robert Higbee deserve to be criminally convicted?

Subin will likely win this trial. For justice sake, I sure hope so. But in my opinion Subin would have been better served in his closing argument by pointing to his client, referencing his testimony and his 39 character witnesses and sitting down.