Apr
02

Don't Cut and Run, Representative Esty

       The people of Connecticut’s 5th Congressional District deserved far more than they’re getting from Representative Elizabeth Esty, but not for the reasons you might think.  In announcing her decision not to seek re-election in November, she knuckled under to pressure from a well-organized mob. It is hardly a profile in courage.

            The new prudery sweeping the nation claimed Esty as its latest victim. Her crime? She didn’t act quickly and vigorously enough to condemn an aide accused of harassing a female colleague.

            The allegations against Tony Baker, her former chief of staff, are ugly. He apparently got romantically involved with a staffer, and then went to pieces when the relationship ended, calling the beleaguered colleague and subordinate some 50 times one day in May 2016. When the colleague wouldn’t respond, he left a voicemail. “You better f-----g reply to me or I will f-----g kill you,” according to The Washington Post.

            Mr. Baker, it appears, has issues with rejection. (Baker apparently denies some, but not all, of the allegations. But who needs a trial in this over-heated environment? It is enough to be accused these days.)

            Esty sent Baker packing, providing him severance pay and a favorable recommendation. She did not act quickly or forcefully enough to suit the new moral censors peeking between as many sheets as they can rustle.

            Baker’s alleged misconduct took place in the days before the #MeToo movement made #IBelieveHer the new national mantra. We must believe the accuser, you see. We must punish the accused, you understand – the more severely the better.

            To Hell with due process. Accusers are victims merely because they say so.

            Calls for Esty to resign have flooded in from coast to coast. Last week, the representative stood firm: she was not resigning. This week she’s rethought things. She’s not seeking re-election.

            What a coward.

            Why not give the people of the 5th Congressional District a choice in the matter? They elected her. She is in her third term. What gives a self-righteous mob the right to drive an elected official from office.

            I would have loved to see a candidate with the moxie to stand her ground. Esty could have been a national proving ground for the new politics of pathos.

            “Yes, I erred,” she could have said while standing in any number of distressed communities in her district. “I should have, and could have, done better. But the people of this district elected me to create jobs, improve the infrastructure, and attend to the concerns of ordinary working people here in Connecticut. I’m not taking my marching orders from anyone else.”

            She could also have reminded people about civility and the rule of law, about orderly process, and the dangers of mass hysteria and leaping to conclusions.

            We have laws to punish people who transgress. The criminal code makes it a crime to threaten or harass someone. Mr. Baker may well have broken those laws.

            On the civil side, a person who claims to have been injured can pursue money damages. Presumably, the target of Mr. Baker’s rage can do that.

            Both the criminal and civil remedies for transgression are measured and proportionate. We don’t execute a man for flirting; and no one should lose their professional livelihood for isolated acts of bad judgment.

            But that doesn’t satisfy our new taste for righteous bloodlust. We’ve driven one public figure after another from the stage because they couldn’t keep their libidinal house in order. Think Matt Lauer, or Garrison Keiler, or Charlie Rose.

            Private employers are free to chart whatever course they like. If they want to bend to every hysteric wind that passes, their employees are on notice to be wary.

            But we elect public official in time-honored and time-tested processes. No self-righteous mob ought to possess the power to bully a person out of office. It is chilling to see a public official driven from office in such a manner.

What next, public lynchings?

            I hope Esty reads this. I hope she digs in and submits the question of whether she should be elected to the people in her district, not to the pundits seeking platforms on talk shows.

            Esty’s a loser in this tawdry affair. So, too, are the people of the 5th District.


Mar
27

Senator Fasano's Assault On Independent Judiciary

            After today’s Senate debate on whether to confirm the nomination of Andrew McDonald as Chief Justice of the Connecticut Supreme Court, I made a resolution: I intend to contribute to, and work for, any candidate who seeks to replace Senator Len Fasano, R-North Haven.

            Fasano led the charge against McDonald, standing in the well of the Senate and parsing recent Supreme Court decisions in high-profile cases.  He urged his fellow Senators to oppose McDonald’s confirmation because he didn’t like some of the decisions McDonald, and fellow members of the Court, made. His colleagues obliged. McDonald was not confirmed.

            Fasano’s entitled to his opinions, of course. We all are. But if you cherish an independent judiciary, the sight of Fasano playing eighth justice (there are seven justices on the Connecticut Supreme Court) was terrifying.         

            Judicial independence is important. That’s why federal judges are given lifetime tenure. We want judges to decide cases according to law. We leave passion to the polling place.

            But Connecticut does not appoint judges for life. Every eight years, each and every judge must sit for a retention hearing, and be confirmed for another term.  I’ve heard judges suggest in the privacy of their chambers that they are well aware of retention hearings. Bold minds grow cautious before these hearings.

           Why is this a bad thing?

           Law is not mathematics or quantitative science. It takes years to learn and to master the law’s doctrines and core concepts. Learning to apply them takes even more time. A fair-minded judge must try to do his her best to apply legal doctrines to factual disputes in circumstances that are often tense and uncertain. The best judge is a judge focused solely on the task at hand, and dedicated to nothing other than the desire to get the decision right.

          Aristotle once wisely observed that “it is the mark of an educated man to look for precision in each class of things just so far as the nature of the subject admits; it is evidently equally foolish to accept probably judgments from a mathematician and to demand from a rhetorician scientific proofs.” Those educated and experienced in the law learn to respect its ambiguities.

          Politicians, especially politicians steeped in overheated partisanship, eschew subtlety.

          Because the law’s building blocks are imprecise, there is often room for honest disagreement about what getting it right means. That’s why Appellate and Supreme Court decisions are often accompanied by dissenting opinions. There’s nothing wrong with that.

            What is wrong is bullying judges with the threat of punishment if you disagree with their decision. It takes a wise lawmaker to learn to respect a judge whose decision outrages him.

            Senator Fasano is not a wise lawmaker.

            He talked from the floor of the Senate today about his disagreement with the Supreme Court’s decision releasing Richard Lapointe from prison decades after Lapointe was sentenced to prison for murder. Yes, the Lapointe decision was controversial: the Supreme Court recognized a new rule permitting it to make credibility determinations about experts, a role reviewing courts almost never embrace.

            But what, beyond that, does the Senator really know about the case other than that he did not like the outcome? My office took Lapointe’s direct appeal to the Supreme Court many, many years ago. The senator did not attend arguments. He never called to ask about the case. I doubt he ever read the briefs, or that he ever read more than a briefing paper on the Lapointe case.

            Playing eighth justice from the Senate floor was a disgraceful performance.

            Fasano also talked about the Supreme Court’s decision in the Michael Skakel case. He rebuked justices for writing about the possibility that someone other Mr. Skakel committed the crime. Justices can’t do that, he decried, calling it TV justice.

            This hideous chirping demeans the Senate and sheds a dark light on the Senator.

            Is he truly ignorant of the legal doctrine known as third-party culpability? Did he read the record of the habeas corpus proceeding that resulted in freedom for Skakel? The justices in the Skakel case read the record, listened to legal argument, and decided the case according to law.

            The Senator merely brayed.

            Sure, Senator, it plays well with constituents to strut tough on crime. But the courts are supposed to stand between a mob’s demand for rough justice and an accused. The tawdry example you set from the Senate floor today sends a message to sitting judges: The rights of the accused ought not to tip the scales of justice when the public demands a pound of flesh.

            I’ve met Senator Fasano. I know him to be a kind, affable man. It’s no wonder he knows electoral success. He is a crowd pleaser.

            But pleasing the crowd isn’t what judges do. Judging is solitary, often lonely work. The work of a judge is to take the condensed wisdom of centuries of legal scholarship and apply it to the crises and controversies of the day. Judges are entitled to do their work in peace; they ought not to be rousted by rabble-rousers.

            Shame on you, Senator Fasano. Your extemporaneous commentary on the law and simple-minded exegesis of difficult legal decisions discredits the Senate, and sets a new low mark in the state’s confirmation proceedings.

            Suddenly, the ethos of raw partisanship has crept from Washington, D.C., to Connecticut. We’re no better for it. I blame Senator Fasano in large measure. He could have behaved like a Solon today, giving wise counsel and respecting a process that has served this state well for generations.

            Instead, he declared war on an independent judiciary.

            I will never be a judge. I don’t have the temperament for it. But I am a trial lawyer. My clients and I depend on an independent judiciary in conflicts that are often desperate and life-altering. You undermined the judiciary today, Senator.

            Senator Fasano is now on a list I hitherto had not created: I’ll call it Lawmakers Who Ought Not To Serve Another Term.

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About Norm Pattis

Norm Pattis is a Connecticut based trial lawyer focused on high stakes criminal cases and civil right violations. He is a veteran of more than 100 jury trials, many resulting in acquittals for people charged with serious crimes, multi-million dollar civil rights and discrimination verdicts, and scores of cases favorably settled.

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I believe that the state is a necessary fiction and that failing to combat it is the first step toward tyranny.
– Norm Pattis

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Nothing in this blog should be considered legal advice about your case. You need a lawyer who understands the context of your life and situation. What are offered here are merely suggested lines of inquiry you may explore with your lawyer.

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