2000 Pichon Baron and the U.S. Constitution

[JimHow]

.... time to drink something good.

I've uncorked a 2000 Pichon Baron to celebrate. Mmmmm.

So today, we got before the U.S. First Circuit Court of Appeals on our so-called "Batson" claim in the matter of Malik Hollis v. Warren Magnusson, Warden of the Maine State Prison.

Thank you, Howard Marc Spector (HM$), for helping me with the last section of my 87-page federal appeals court brief, you are a great friend and colleague, it has been my honor to know you. We did very well today in the Boston federal appeals court.

I've been practicing criminal law for over 35 years, it is very, very hard, arduous, incredibly frustrating work, but I assure you, it is exponentially harder to defend minorities than Caucasians, like I was today.

We will probably lose at this level because of something called the "standard of review" in habeas corpus cases, but it is nonetheless inspiring to hear judges from the United States First Circuit Court of Appeals in Boston -- the next level down from the U.S. Supreme Court -- basically telling us that what the state did to us was bullshit.

I have fought discrimination for over 40 years, defending minorities, defending gay rights, defending anyone who just wants to live their life in happiness without harming others, I'm not sure we are any better off than we were 40 years ago. I would say that, in some ways, with Fox News, and Trump, and the great divide in the country, we are worse off. Still, we must fight on.

Anyway, here is the oral argument in my case. I was dealing with the legendary Judge Sandra Lynch, who is considered to be the meanest judge on the First Circuit, but I think I won her over by the end of the 45 minute proceeding, I think by the end she was even on my side. So block off 45 minutes, grab a fine northern Medoc, sit back with the lights dimmed, and listen to what we deal with on a daily basis, here on the ground, defending constitutional rights for EVERYONE, black, white, rich, poor....

It's a battle, my friends:

https://www.sunjournal.com/2021/04/06/f ... mans-case/

If you want to hear the oral argument, go to this link of the U.S. First Circuit Court of Appeals, and click the third case down, "Hollis v. Magnusson"....

https://www.ca1.uscourts.gov/oralargsrss

[JimHow]

Is 2000 Baron a disappointment?
I mean, there's lots of sediment, but that doesn't make it a great wine.
I loved this wine in its infancy, drank probably at least a dozen half bottles and another half dozen 750s.
The 3-4 bottles I've had in the past 2-3 years have been okay, but disappointing.
92 points.

[Nicklasss]

3-4 disappointing bottles of 2000 Pichon Baron in a row is surely not a good thing. Normally 20 years old would be the start of the sweet spot for that wine I guess. Would it be a few bad bottles in a row, or your palate preference for younger red Bordeaux?

I was considering buying some Baron not that long ago but choke with the high price. And now your comment about the 2000 is leaving me like many: should i really pay more than 200 $ for a bottle of red Bordeaux?

I liked the 2008 Chateau d'Issan the other day, and for me, i don't know if it will really better in 20 years... i guess now to maximum +8 years should be ok.

[JimHow]

Don't buy the 2000 Baron, Nicola, I have a few bottles left.

[OrlandoRobert]

Damn, Jim, that was impressive. They were all over your sh*t for the first 7 minutes and you kept pummeling back. Loved the comment about how Marshall would have applauded the 2019 Cavenaugh decision.

I would encourage everyone to listen to this. Hard to explain how incredibly challenging, and exhilarating, it is to do this. And you are seeing serious talent in action there.

[JimHow]

Ha thanks OB, yeah they came after me at first! But I’m very happy with how it went, it is exhilarating indeed, the battle moves onward! Thanks for listening to it, my friend.

[OrlandoRobert]

Ha thanks OB, yeah they came after me at first! But I’m very happy with how it went, it is exhilarating indeed, the battle moves onward! Thanks for listening to it, my friend.

Looking forward to breaking bread some day, pulling corks. Would love to hear your war stories. Mine are boring, you know, how exciting can a contract be, right?

Actually, the coolest thing I ever did in law was totally pro bono. A 5-year representation of a former congressman that was caught in a huge dragnet conspiracy prosecution that went way off the rails. The prosecutor as a very bad hombre. A three month jury trial in fed court, and everyone was convicted. I handled the appeal, went before the 11th twice. My guy was totally exonerated, and unlike the others, not even sent back to retrial. He was innocent and just got phucked by association - some core defendants were dirty - and by a ridiculously aggressive, zealot of a prosecutor, who later got chastised by the 11th. So the cost: My guy lost his wife, his job, his friends, his company and his wealth. And lived through 10 years of hell with the prospect of 20 years hard time hanging over him. Hard for one may to go against the federal govt. And he had means at the time. I cannot imagine being indigent, or frankly given the costs, even of decent means. I could not have afforded that defense.

[Hm$(still)]

I was happy to help you Jim but you needed very little help. I listened to your argument and am proud of you for making it. Your bench was not as friendly as I would have expected in the US northeast. It sounded a lot like the Fifth Circuit Court of Appeals (I think I am 3-3 there).

Hm$

[JimHow]

HM$, my brief was due the next day, I had written 87 pages, but it required one last paragraph, you gave it to me like immediately, I cut and pasted it, and filed it. Much thanks, mi amigo.

That's a great story about the congressman, OB, indeed, the practice of law affords many great stories, we deal with the daily terror of life, be it a businessman engaging in a multi-million dollar contract, or a poor inner city kid from Philadelphia.

I wish I could fight the battles forever, but all we can do is take them on one little increment at a time, and hope and pray at the end that things are at least just a little better than the way we took them on.

On racial issues, I'm not sure I can say we are better off than when I started 35 years ago. Indeed, we may have taken a step back. I dunno.

Win or lose, in the end we can drink fine northern Medoc, and contemplate what is the truth, and what is justice.

[stefan]

It was fascinating listening to the proceedings. When will the Circuit Court give its decision, Jim?

[JimHow]

It varies, Bill, probably a couple months. I’ll post the written decision when I get it.

[marcs]

Like the US Constitution, the 2000 Pichon Baron appeared brilliant in the early going, despite some kinks that had to be worked out due to youth. But as it ages some cracks are showing. I'm a bit concerned since the 2000 PB is my single largest holding of any wine, I have a couple of cases.

I will say that it's tough for any wine to live up to the expectations that we bring to this bottle as a long time favorite. It's always been excellent for me but the question is whether it's GREAT and we judge it if it falls short of that very difficult standard. A quick note from my last tasting of it, which represents the last two times I had it pretty well --

"Has the crazy 100-point nose I remember right from the decanter. The palate opened up over the evening with notes of chocolate and licorice but didn't really reflect the intrigue and exoticism of the nose despite the fact that it appears to be approaching maturity, the tannins are clearly receding compared to past years. Has a nice quality of food-friendly lightness and low alcohol like old wines do. This was a terrific version of a classic left bank Bordeaux but didn't really surpass other Bordeaux to the level I had hoped for in its youth. Very very good but perhaps not great -- 93 points?"

I will say that this and the other bottle I've had over the past few years were purchased on the secondary market, so who knows the storage. I do have 6 bottles purchased at release and stored professionally since then, interested to see how those show up.

Jim, I'm listening to your oral argument and you really seemed to move the panel who were hostile at the beginning and almost beating a retreat by the end...

[JimHow]

Yeah, the last couple bottles of the 2000 Baron have been good but not great, certainly not the great wine I recall from its youth.

Yeah I felt the judges came along after the initial assault. My law school buddies in Boston had warned me about Judge Lynch, she has a reputation for being mean. My case was sixth and last on the docket, I watched the previous five arguments, she was skewering the lawyers, especially one of them in the case just before mine. All you can do is parry the initial assault when they come after you like that, and then hope they give you a chance to talk by the end, which they did. The argument was on video conference so we were able to see each other, which helped. As I understand it SCOTUS arguments have been just over audio, which has got to be really difficult. The problem for me is going to be the deference in the standard of review that they give to the lower courts, but it was at least rewarding to hear them express concern over what happened to the attorney general. We randomly get assigned three judge panels out of the dozen or more judges on the circuit court, I was happy to get Judge Kermit Lipez, he's 79 now, he used to be a superior court judge here in southern Maine and actually sat for a while in the same Androscoggin County courtroom where this Hollis trial happened. He's a really sweet guy and super smart, I hadn't seen him in over 20 years. Towards the end I noted that the prosecutor had been "spanked" by a lower federal court judge and for an instant I thought, oh shit, they're not going to like that use of words, but Judge Lynch actually smiled and Judge Lipez outright chuckled, so I think they were okay with it.

It's a pretty egregious case, and of course relevant with all that's going on in Minnesota and elsewhere. I spoke about it to a UMaine Zoom class yesterday and it drew a very animated discussion.

A picture of my computer screen from one of the earlier arguments, complete with the brick and rock that have been thrown through my office windows over the years, that's Judge Lynch at center bottom and Judge Lipez, upper left. Judge Kayatta lower left was a long time Portland big firm corporate lawyer, I had never met him before. I really wish I could have made a day of it in Boston, it was my first First Circuit Court of Appeals argument of my career, but it wasn't too bad doing it by video.

I got my second vaccination this morning, hopefully we can travel soon!

[rthomaspaull]

I know very little about the law, but congratulations JH ! rthomaspaull

[JimHow]

Thanks RT, so do I!

[JoelD]

Finally got a chance to finish this. That judge was tough, on everyone. Good arguments, Jim. I'll be curious to hear how it turns out.

Seems highly likely to me that race was a factor in the exclusion of that juror. But isn't that the lawyer/prosecutors job to try to exclude jurors less favorable? I feel like this probably happens every day during jury selection in different ways. So race, religion, sex, or ethnicity are exclusions to this?

Was a Batson challenge used in the initial trial?

Just to be clear, I'm not in favor of this in any way. Just trying to understand where the line is supposed to be drawn and why. Interesting stuff.

[JimHow]

Yes, the judge denied my Batson challenge at the trial level.
The problem for me is that, while the appellate courts have been troubled by the judge and prosecutor's conduct at the trial -- the Maine Supreme Court, the Federal District Court, and now the First Circuit Court of Appeals -- they are required to give a high degree of deference to the trial judge's decision. So, I'm likely going to lose, but that's the plight we usually face when representing criminal defendants, especially minorities.

[Dandersson]

Thank you Jim, So happy to see your dedication for justice!
For me as a newish US citizen this means a lot, thank you!
Hope to join you for some great wines when you get down to the DC/MD area.

Best, Dan

[JimHow]

Indeed, Dan, I got my second vaccination the other day, let’s get the party started!

[s*d*r]

So what was the “egregious error” by the trial court judge in applying the Batson rule?

What is meant by “the prosecutor’s demeanor”?

[JimHow]

Very good question, Stu, it goes to the crux of our argument.
Back around the Civil War, blacks couldn't even serve on juries.
Then they passed the Fourteenth Amendment with its Equal Protection Clause.
But then Jim Crow came along, and for the better part of a century, as a matter of practice, blacks were excluded from juries.
By 1965, with the civil rights movement, they started to make at least a little progress.
In the 1965 case of Swain v. Alabama, the Supreme Court said you could challenge the prosecutor's exclusions if you could show that they were engaging in "systemic" discrimination of black jurors. And, in fact, some prosecution offices were indeed routinely engaging in such systemic policies. But proving "systemic" discrimination was pretty difficult.
So, by 1986, after Thurgood Marshall had been around for a quarter century, the Supreme Court tightened it up even further, basically saying that prosecutors had to state very clearly on the record the reasons why they were excluding a black juror, and that there did not need to be "systemic" exclusion. You could engage in a "Batson violation" even if you excluded ONE black juror, only one time, if you did not have a legitimate reason.
And since Batson, the SCOTUS has ringingly endorsed and strengthened Batson, even the Roberts Court has been very supportive of it. Kavannaugh wrote the 2019 decision in Flowers v. Mississippi, which strongly endorsed Batson. (Most of the cases that go up to the Supreme Court are death penalty cases, although Batson was a simple burglary.)
So the problem in my case is that, at the time I raised my objection, the judge said there was no evidence of "systemic" discrimination by this prosecutor, and therefore excluded the juror. That's the "egregious" mistake that Judge Lynch said the trial judge, Justice Bill Stokes, who I go way back with to my days in the Attorney General's Office and who is very brilliant and we like a lot, made at the time of trial. He applied the outdated 1965 standard from Swain, rather than the applicable 1986 standard from Batson.. After the trial he tried to fix his mistake by holding a sort of Batson hearing, and that's where he scrambled by saying he believed the prosecutor's demeanor when she said she excluded the lone black juror because he only had an 11th grade education, rather than the 12th grade educations that the white jurors had. Indeed, the trial judge made no findings about the prosecutor's demeanor, I have no idea what in the record he is talking about.
Which is a bunch of bullshit, of course. Even the trial judge himself criticized the prosecutor for doing it, and when I took it up to the Maine Supreme Court, they were "very skeptical" about her actions as well, and when I went to federal district court, the judge there really blasted her. At the First Circuit the other day, they likewise seemed to not believe her. But... unfortunately for me, the standard of review is extremely deferential to the trial judge, so it is unlikely they will flip him, even though they disagree with him.
When I appeal to the Supreme Court I'll try to argue that there should be "strict scrutiny" of these rulings, and that peremptory challenges without cause should be eliminated completely, which Marshall argued in his concurring decision in Batson back in '86, and which Breyer argued in his concurrence in the 2005 Miller-El case. (It's extremely unlikely they will take this case, though, they would more likely take my Alaska case because it raises a new issue on the fourth amendment applicability to warrantless searches of DNA databases like ancestry.com, etc.)

[Dandersson]

Jim, I have a couple of weeks until my second shot, then I will be ready for party! Let me know if you plan to be in the greater DC area, would be fun to meet up, and enjoy some good Bordeaux wine . I will eventually visit Maine again but will not be able to travel until earliest this winter for other reasons.