Parole Denied For An Assassin, Several Steps Forward, The Emoji Defense, And Sing It, Aretha

// Most ATL readers, except for dinosaur lawyer readers, are way too young to remember the assassinations of Dr. Martin Luther King Jr. and Robert F. Kennedy, both happening within two months of each other in 1968. Anyone over the age of 60 and sentient will remember both horrifying events, acts of domestic terrorism that began when President John Kennedy was slain in 1963. Dinosaurs among us remember those times and ponder the “what ifs?” I know I do.

King’s murderer, James Earl Ray, died in prison. However, Sen. Kennedy’s murderer is alive and well in a California prison. The California Parole Board said that Sirhan Sirhan was eligible for parole. Although the state parole board had recommended release, whether he would be paroled would be up to Gov. Gavin Newson. For all of us who remember Kennedy’s murder, right after the results of the California presidential primary had been announced, and he was moving through the kitchen of the Ambassador Hotel here in Los Angeles, it was another moment that viewers would never forget. (King’s murder, on the balcony of a Memphis hotel room, was not televised.)

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Newsom denied Sirhan parole. In an op-ed in the Los Angeles Times, he explained why. Newsom quoted a line that Kennedy had given in a speech in Cleveland a few months before: “Surely we can begin to work a little harder to bind up the wounds among us and to become in our hearts brothers and countrymen once again.” That comment as well as the text of Kennedy’s remarks are worth considering again now when we are as divided, if not more so, than in 1968. For those who know history and for those who lived that history, the times were very anguished and uncertain. Binding up wounds takes work, and, in our profession, clients are often so entrenched in their respective positions of misery that they see no way out except to fight to the figurative death of the other side (and the assets of both).

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Pakistan has a long way to go, but it’s now expected that the first woman will join its Supreme Court. Ayesha Malik is being elevated to the highest court in that country with the support of the country’s chief justice. By a 5-4 vote, the justice, who presently sits on the Lahore high court, was approved by the country’s Justice Commission. It’s expected that her nomination, which now goes to a parliamentary committee, will be approved for a 10-year term. Progress may be glacially slow, but progress it is.

The late Justice Ruth Bader Ginsburg said that she would be satisfied when there were nine women on the Supreme Court. “People ask me sometimes, when — when do you think it will it be enough? When will there be enough women on the court? And my answer is when there are nine.” Pakistan has a long way to go (and we do, too).

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It’s way too early to herald the demise of the bar exam, but there appear to be some glimmers of different thinking, dare I say creative, even innovative? The NCBE has decided that it’s too late to switch to a remote format for the February bar. But Nevada is taking matters into its own hands and will have a remote bar next month with no multiple choice. The two-day exam will have seven Nevada essay questions and two Nevada performance test questions. No “multiple guess.”

Oregon is looking at two possible alternatives to bar admittance, in addition to its current use of the Uniform Bar Examination. How about experiential learning and supervised practice as alternative paths? Why not? If the goal is not only to have lawyers who know the law but know to how to interact with clients, manage a law practice, including client trust accounting, and the myriad other things that compose lawyering, then experiential lawyering and supervised practice may well be ways to go to make lawyers practice ready. (Not everyone goes into Biglaw where others manage mundane tasks.)

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Do you think that an emoji can show a consciousness of guilt? In an insider trading case involving a professor at Loyola University Chicago Law School, after transactions which netted the professor a nice chunk of change, the tipper texted the tippee (and if you don’t know these terms, you should) with emoji dollar signs over the eyes. (In dinosaur times, we had to prove smoking guns by other ways.)

Does the emoji defense compare in any way to the “dog ate my homework defense,” the popular defenses in drunk driving cases of “I ate breath mints before the breathalyzer test,” “I can’t pee into this bottle,” or my personal favorite, “I wasn’t behind the wheel?” I am also partial to the “empty chair” defense, which I used when we had no defense witnesses because the client had either fired or laid off anyone with percipient knowledge. No emojis in those days, except there should have been one with the CEO weeping as the settlement check was written.

Occasionally, I get it right, and when I have said that the words “with all due respect,” usually directed at the court, are code words for “you moron” or something similar, now there’s research that supports my thinking. Validation! Researchers in England found that when barristers use such polite terminology with opposing counsel or judges, they are really dissing whoever is the subject of that remark. So, it makes sense to leave the word “respect” to Aretha Franklin. No need to spell it out.

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Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at [email protected].

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Aretha Franklin, California, Emojis, Jill Switzer, Sirhan Sirhan, Small Law Firms