Judicial Notice (07.03.21): ‘Baseless’

Manhattan’s next District Attorney, a Biglaw turnaround, and other legal news from the week that was.

Justices Samuel Alito and Elena Kagan, antagonists in Brnovich v. DNC (via Getty Images).

Greetings from the Berkshires, where we’re spending the Fourth of July weekend with family. The weather leaves something to be desired, but it’s always wonderful to get away and spend time with loved ones — especially after this past year or so, when that can’t be taken for granted.

We took the train up to Hudson, New York, where my husband Zach’s parents picked us up. If you’re traveling by train with a three-year-old, I recommend grabbing a table in the cafe car. Harlan was content to hang out under the table and play fort — maybe not the most hygienic activity, but a vast improvement over walking endlessly up and down the aisles, annoying the other passengers (which on this ride included Malcolm Gladwell, doing his best to keep a low profile; blink and you’d miss him).

This week marked the end of October Term 2020 at the Supreme Court, when the Court handed down some of its biggest rulings. So I showed up in a few SCOTUS-related news articles, in Law360 (about how politicized this Term was), The Hill (about a possible retirement by Justice Breyer), and Bloomberg and Bloomberg Law (about the related subject of his law clerk hiring). I also made an appearance in Richard Morgan’s thought-provoking piece for Esquire about gay Asian-American male identity, where I represented the “suburban dad” demographic (which I’ll officially join this coming Friday, when we complete our move to the ‘burbs).

Now, on to the news.

Lawyer of the Week: Alvin Bragg.

Congratulations to Alvin Bragg, almost certainly the next Manhattan District Attorney (because Republicans can’t win New York City elections outside of Staten Island to save their lives). On Friday his main rival, Tali Farhadian Weinstein, conceded the race, paving the way for the 47-year-old Bragg to become Manhattan’s first Black DA.

On the campaign trail, Bragg highlighted his inspiring personal story, which took him from Harlem to Harvard. After graduating from Harvard College and Harvard Law School, he clerked for Judge Robert Patterson (S.D.N.Y.); worked at a top white-collar criminal defense boutique, Morvillo Abramowitz; and served as both a state and federal prosecutor (where he worked under Preet Bharara, who endorsed him).

The Manhattan DA’s office is one of the nation’s premier prosecutorial offices, state or federal — and assuming Bragg prevails in the general election, as seems almost certain (barring a bad scandal), he will take over at a particularly interesting time. The office just announced its long-awaited case against the Trump Organization — discussed in more detail below, as Litigation of the Week.

Judge of the Week: Justice David Wecht.

It’s hard to compete with the Supreme Court in the last week of June. But if you overturn the conviction of one of the country’s most notorious sexual predators, you can compete for media coverage with SCOTUS.

On Wednesday, in Commonwealth v. Cosby, the Supreme Court of Pennsylvania overturned the 2018 sexual-assault conviction of disgraced comedian Bill Cosby. The court’s opinion was written not by “a Trump judge” — a conclusion that Twitter immediately jumped to, even if this was a state rather than federal case — but by Justice David Wecht, a member of the Pennsylvania Supreme Court since 2016, when he and two other Democrats wrested three seats from Republican control.

Here’s a concise description of the Cosby ruling, from a Vox piece by Ian Millhiser:

The thrust of that opinion is that, even though then-Montgomery County District Attorney Bruce Castor [yes — the same Bruce Castor who would later defend Donald Trump in the second impeachment trial] never reached a formal agreement with Cosby that granted him immunity from prosecution, a press release that Castor sent out in 2005 — combined with Cosby’s later, incriminating testimony in a civil lawsuit — had the same effect as a formal immunity deal.

For his part, Millhiser believes that the opinion is “probably correct” in outcome, noting that six out of the seven justices on the court concluded that Cosby’s conviction had to be thrown out. Justice Wecht wrote for the four who also held that Cosby couldn’t be retried; two others would have allowed him to be retried, but without using certain (very damaging) evidence from his civil case.

Millhiser’s assessment of Justice Wecht’s opinion — likely correct in outcome, but “a train wreck” as a matter of judicial craftsmanship — is one of the more positive ones. For harsher critiques, see this Twitter thread by Stanford law professor Michele Dauber, who dives into the footnotes of the opinion to take it apart, or this thread by lawyer and author Linda Hirshman, who laments “how little justice matters when women are involved.”

In fairness to Justice Wecht, he has his defenders (some of whom are more enthusiastic than Millhiser). Former U.S. Attorney Harry Litman praised Wecht as “smart and honest,” observing that “it sounds as if the State in fact did breach an agreement with Cosby.” Prominent defense lawyer David Oscar Markus, in a New York Daily News op-ed, wrote that Justice Wecht “did the right thing…. because prosecutors cheated.” (Markus is not disinterested; he represents the infamous Ghislaine Maxwell, ex-girlfriend of another sexual predator, the late Jeffrey Epstein, and Markus wants Maxwell to go free like Cosby.)

It seems that Justice Wecht’s critics outnumber his defenders, though — which raises the question of how much longer he’ll be a judge. His term ends in 2026, and his chances of staying in office are a lot lower now, I’d say. Last year, Republican state legislators called for his impeachment based on his alleged liberal “judicial activism.” Now that much of the left is angry at him over his Cosby opinion, he’ll have enemies from both sides of the aisle. [UPDATE (7/5/2021, 10:55 a.m.): As noted in the comments, incumbent Pennsylvania Supreme Court justices face retention elections, and it’s very rare for a justice not to be retained — so Justice Wecht’s chances of remaining in office are higher than if he faced a standard reelection.]

Given his unpopularity, why is Justice Wecht the Judge of the Week? Remember that this “honor” goes to the judge who’s being talked about the most, not the judge who’s the most popular or the most praised. And by that “being talked about” standard, Justice Wecht is a worthy Judge of the Week, whether or not you agree with his Cosby ruling. Everyone has an opinion on him; they’re just not all favorable.

Runner-up: Judge Sandra Ikuta. Her court, the Ninth Circuit, went 1-11 before SCOTUS this Term. But Judge Ikuta, a leader in the conservative wing of the Ninth, fared far better. As noted by Ed Whelan, on eight occasions this Term when the Court vindicated conservative Ninth Circuit judges who dissented from liberal outcomes, Judge Ikuta led or joined the objectors in seven.

In other judicial news, President Joe Biden just announced his fifth round of judicial nominees. As usual, diversity appears to be a priority — not just in terms of race and gender, but professional background too. For an Oregon-based Ninth Circuit seat, President Biden is nominating Jennifer Sung, a state labor board member and former union-side labor lawyer — a very unusual background for a federal appellate judge, as noted by Robert Iafolla of Bloomberg Law.