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Bar Watch Bulletin February 11, 2005

2005 ABA Midyear Meeting, President Robert Grey Briefing, American Jury Project, Rule of Law Panel
February 11, 2005
Today we report on proceedings from Friday's ABA Meetings.

Press Briefing by President Robert Grey

Today, President Robert Grey held a press conference to discuss three issues that the ABA is spending time and resources studying.

The American Jury Project was designed to evaluate the current jury system and offer recommendations that would enhance the quality of juries and create incentives for citizens to take jury service more seriously. President Grey stated that the task force looked comprehensively at the jury system from the point of a jury summons to the jury's discharge. He stated that this was not a solo effort by the ABA: "The ABA has received help and approval of other legal organizations." He went on to mention the Federalist Society as one of these organizations (several Litigation Practice Group officers participated in some of the meetings). The report outlines a long list of recommendations for improving the current jury system, from higher compensation for jurors who are away from work to allowing jurors to submit questions to help them better understand what is transpiring.

President Grey discussed why the ABA is addressing sentencing guidelines in the wake of the Supreme Court's decisions in Blakely and Booker. According to Grey, the ABA agrees with the guidelines, but maintains that it is necessary for judges to have discretion when dealing with "unique circumstances."
President Grey mentioned the ABA's work on ensuring access to legal representation. He maintained that 40 years after Gideon, there is still work that needs to be done. According to Grey, "The ABA has undertaken an examination to see how this [Gideon] has been applied in real life." The ABA's "Broken Promises" report argues that, in order to address these problems, funds need to be devoted to more resources and training. He closed by stating that the ABA was encouraged by the President's recent statements in the State of the Union.

Members of the press in attendance were interested in why the ABA was quiet during the Gonzales hearing, especially after the ABA has recently written a letter to the President asking for a bipartisan investigation into recent abuses in the military. President Grey answered: "The ABA did not feel it was in the position to stake out a claim with regard to the Gonzales hearing. We felt that there should be a fully discussed and investigative hearing as there should be with any other nominee, no matter who."


ABA and the Rule of Law

The ABA held a panel discussion on the Rule of Law. Panelists included Talbot D'Alemberte, ABA Past President; Dean Kenneth Starr, Pepperdine University School of Law; Professor Kif Augustine-Adams, Ruben Clark Law School; Neal Sonnett, Past Chair of the ABA Criminal Justice Section; and Professor J.D. Williams, University of Utah.

Mr. D'Alemberte began the panel by broadly describing the importance of the rule of law in and around the world and how important it is to respect the rule of law and human dignity. He suggested at the close of his remarks, "We've [the United States] lost our leadership and respect on human rights that we've held in the past."

Dean Starr devoted a portion of his speech to defending the USA Patriot Act and used quotes from Senate Democrats to support his ideas. He quoted Senator Joe Biden as previously stating: "Today I support the USA Patriot Act." Senator Biden went on the say that the Washington Post was "misinformed and overblown" with respect to their criticisms of the USA Patriot Act. When asked about the civil liberties abuses the Act has been believed to created, Senator Feinstein responded, "I've asked the ACLU for examples of abuses by the USA Patriot Act, they emailed me back and said there were none."

Professor Kif described the rule of law as encompassing many different elements, including the challenges of an objective interpretive process. She offered the example of Judge Paul Cassell, who has expressed unhappiness with a ruling that he had to make because of the current sentencing guidelines, which fettered his discretion. In a case involving a man who was caught with possession of marijuana, the law required a sentence of 55 years. Against what he thought was right, Judge Cassell imposed the sentence: "He didn't like it but he did it because Congress made it the law." She then went on to say that after the decision, Judge Cassell stated that the right thing to do was for the President to grant the convict clemency and for Congress to change the law.

Neal Sonnett immediately began to attack this Administration's policy on the rights of enemy combatant detainees. He repeatedly mentioned Hamdi and Padilla. He stated, "The rule of law means liberty, and we've veered from the rule of law with the practice of enemy combatants. There has been a complete denial of due process to non-citizens not charged with offenses." He then claimed that the ABA has been in the forefront to ensure the protection of these individuals and that the ABA has avoided the "knee-jerk" reactions that others have offered.

J.D Williams devoted his remarks to Alberto Gonzales, criticizing him for recommending detainees be held in Guantanamo Bay for the purpose of evading the Geneva Convention. He then went on to question Gonzales' definition of torture and non-torture. He closed by repeating twice the quote from the Gonzales hearing, "Absolutely the RIGHT DECISION not to apply the Geneva Convention."

There was a one minute period for responses. Professor Kif added that she thought there was a serious problem with sending detainees to other countries where they will be tortured. D'Alemberte further criticized the Administration: "We haven't ratified any treaties. We're the only country with capital punishment, which the rest of the world condemns. And we haven't agreed to be apart of the ICC." He also suggested it was important to look to international law for guidance on human rights. Judge Starr suggested that domestic law provides adequate protections--Congress, for example, has the power to hold the President accountable.