May it Displease the Court

Ep. 7 - Courage for Profit: How the Modern Right has Weaponized Language

In this episode we’re looking at specific strategies that the anti-democratic revolutionary libertarian right, the McConnell-Trump-Koch/Dark money axis of evil for short, redefines particular words such as “liberty” and “courage” and “conservatives” so that they can dupe their supporters into believing they are getting one thing--more liberty, more courage, more conservatism--while they’re in fact getting less. 
With help from Ian Haney López, author of Merge Left, and Nancy McLean, author of Democracy in Chains, this episode explores how the radical anti-democratic libertarian Right has exploited “religious liberty” and “conservatism” and how “courage” is being redeployed to mean pro-corporation and anti-democracy.
Mary revisits the ever important issue of court packing, following some Koch surrogates like Carrie Severino of the Heritage Foundation. We unpack the word “courage” popping up in strange ways to describe the judicial quality that the Trump administration has been looking for in their nomination list of Federal Judges. Looking across excerpts not only Severino but also Justica Scalia, Don McGahn (former White House Council, and Leonard Leo, it’s clear that courage is joining liberty and conservative as code words for the willingness to undermine democracy in favor of the rich getting richer.
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Resources mentioned in this episode:
"The Politics and Rhetoric of Courage" by Vatz, Richard E. - USA TODAY, Vol. 141, Issue 2814, March 2013 | Online Research Library
Analysis | Five of John McCain’s most courageous political moments
Scalia on Democracy Without Disclosure, Brennan Center
The Conservative Pipeline to the Supreme Court
Nancy MacLean, “Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America” (Viking, 2017)
Ian Haney López, Merge Left: Fusing Race and Class, Winning Elections, and Saving America (New Press, 2019)
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Ep. 6 - Innocent Then ”Proven” Guilty: Wrongful Conviction Exoneration with Don Thompson

We tell ourselves that prisons are populated by guilty people. We justify treating prisoners poorly, harshly because they "deserve to be there".
 
There is a long tradition underlying this myth. Ben Franklin reportedly said "it is better to let a hundred guilty men go free than one guilty man be convicted". The advent and continued improvement of DNA technology has proven that wrongful convictions are a regular part of our criminal justice system.
 
Mary and Lee welcome award winning attorney Don Thompson who is unfortunately an expert in wrongful conviction exonerations. Don has had five post conviction exonerations. They are amazing successes born out of epic systemic failures. 
 
Don joined forces with The Innocence Project, out of New York City, which works to exonerate people based on DNA evidence.Here are some facts about exonerations pulled from The Innocence Project website:
 
"The first exoneration occurred in 1989, to date there have been 375 more. The average number of years served before exoneration is 14. 21 of those people had been on death row. 44 pled guilty to crimes they did not commit. All but 15 of the exonerations involved some form of false confession. 60% of those exonerated were Black and 31% were white." 
 
In a functioning system the appellate system would conduct meaningful reviews of convictions and would catch wrongful convictions in short order, but it doesn't and that is in large part because Judges and District Attorneys fight tooth and nail to oppose meaningful review of the evidence to keep these convictions intact. 
 
Don discusses his representation of Valentino Dixon who was wrongfully convicted of murder even though another man confessed on camera within a day of the shooting. Mr. Dixon's conviction was affirmed by the appeals courts. He served 28 years before being released and it was in large part because of the interest taken by Golf Digest, of all publications. It is a truly fascinating and frustrating saga.
 
Wrongful convictions hurt everyone, the innocent person loses years, decades of their life that can never be recovered, the victim and the public are decided and are sold a false sense of security while the true culprit remains free to commit more crimes, creating more victims, and tax dollars are spent incarcerating an innocent person. DNA does not exist in every case and there is no guarantee that it was preserved if it was collected begging the question, how many more innocent people are populating our crowded prisons? 
 
Click here to see the episode on our website
 
Resources mentioned in this episode
https://www.innocenceproject.org/cases/douglas-warney/
https://www.innocenceproject.org/golf-digest-helps-wrongly-convicted-man-regain-freedom/
https://www.golfdigest.com/story/for-valentino-dixon-a-wrong-righted-murder-charge-vacated-by-court-after-serving-27-years-in-prison
https://www.innocenceproject.org/cases/frank-sterling/
https://www.innocenceproject.org/cases/freddie-peacock/
https://www.law.umich.edu/special/exoneration/Pages/casedetail.aspx?caseid=3702
https://www.nytimes.com/1998/05/22/nyregion/after-25-years-just-days-till-freedom-with-new-evidence-judge-voids-woman-s.html
Book: Among the Lowest of the Dead: The Culture on Death Row by David Von Drehle
Court Case: McCleskey v Kemp, 481 U.S. 279 (1987)
https://www.vera.org/publications/price-of-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends/price-of-prisons-2015-state-spending-trends-prison-spending
 

Ep. 5 - Capture the Courts: The Trump-McConnell Judicial Takeover

Get ready for a whirlwind primer in the GOP donor-funded Trump-McConnell takeover of the U.S. judiciary. Senate Majority Leader Mitch McConnell has essentially shut down the Legislative Branch for anything except confirming Trump judges. They know they’re not going to finish in Trump’s first term. If he gets a second term, they WILL finish. 
Already, the Trump-McConnell controlled courts have a unanimous victory on the 80 corporate cases that have appeared in front of the Supreme Court. That is 80, 5-4 decisions, in favor of corporate interests and that is EVERY case decided in favor of private interests and against the public good. 
Their priority is to pack the courts with judges who are young, inexperienced, and pro-corporate. McConnell and the Senate Republicans have turned the Senate and the Legislative Branch into  a conveyor belt for confirming Trump judges. The House Democrats have passed over 350 bills, 90% of which have bi-partisan support, that have yet to even be considered by the Senate.
The courts are all but captured and with Justice Ginsberg’s seat now vacant, the stakes for America have never been higher. 
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Click here to view the episode transcript
Links to research used in this episode:
The Myth of 'Captured Courts' | Opinion
President Trump's re-election rally in Tulsa
An inside look at how Trump's Supreme Court list is made: ‘A tremendous investment of time’
DPCC Report: Stabenow, Schumer, Whitehouse Unveil Report Detailing GOP's Big-Money Assault on the Constitution, Our Independent Judiciary, and the Rule of Law
Mitch Part 4: 'Not A Happy Choice' : Embedded
https://www.motherjones.com/politics/2020/07/he-defended-anti-gay-and-anti-muslim-causes-now-hes-an-immigration-judge/ 
Frequently Asked Questions, fedsoc.org
Trump’s New Judicial Litmus Test: Shrinking ‘the Administrative State’
Economic Inequality and Political Representation

Ep. 4 - McConnell Ignores Justice Ruth Bader Ginsberg’s Dying Wish

In this BONUS episode, Mary speaks for herself and Lee, who is unable to appear on this episode. Mary pays homage to the late Justice Ruth Bader Ginsberg who recently died of pancreatic cancer. Celebrating the life of this iconic legal trailblazer who dedicated her career to challenging the patriarchal world and fought against gender discrimination in all forms. A few hours after Justice Ginsberg's death Mitch McConnell publicly announced that he will ignore Justice Ginsberg's dying wish, which was for her seat to not be filled until the next President is installed.  You will hear Trump, the very next day at a rally in Fayetteville, N.C. vow to fill her Supreme Court seat quickly. This is GOP hypocrisy laid bare after they refused to fill Justice Scalia's seat 11 months before the 2016 election claiming the voters needed a say in who was nominated. The GOP is aware of the stakes and they have never been higher. The GOP donors are so close to a complete power grab. True to form, Trump says the quiet part out loud when he admits that he is counting on the captured federal courts to hand him the election by limiting what ballots actually count. The fear for democracy is real and the fight is very much on. May Ruth Bader Ginsberg's life inspire a revolution.
 
Resources cited in this episode:
https://www.c-span.org/video/?475837-1/president-trump-announce-nominee-supreme-court-next-week
https://video.search.yahoo.com/yhs/search?fr=yhs-iba-syn&hsimp=yhs-syn&hspart=iba&p=Lindsey+Graham+use+my+words+video#id=2&vid=f034f8b39d4e9e9810e3600f2e31c2b9&action=click

Ep. 3 - Captured Academics: The Myth of the Clash of Ideas

In this episode, Mary and Lee are sticking with the theme of money infiltrating cornerstone institutions of American democracy. But this episode is going to focus on academics, but not like Lee’s people, whose research is independent and rigorously evaluated. This episode is about captured academics who are selling their research and ideas to the highest bidder. 
The collective mythology of academics, at least in this country, is kind of this crazy liberal professor who sits in their ivory tower with a bad wardrobe and just churns out books. And, yes, people mostly think academics are totally out of touch with the real world but nonetheless there’s a sense that they know what they’re doing. That their research is evidence-based, rigorously judged...you know, academic. And, more importantly, that their research can be trusted.
Except now big money has infiltrated academia--public universities, private universities, law schools--using their “charitable donations” (can you hear my air quotes) to create an agenda for what research gets done and what the research says. We know that the Koch brothers have paid for a whole host of anti-climate change “science” (more air quotes). We know that the tobacco industry paid for studies that smoking didn’t harm people. We know that Volkswagon paid for studies to say that their emissions were not polluting. 
And it’s not just paying for research. They use their donations to determine who gets promoted, who gets tenure, even whether or not someone can get a book published. If we know that academics and judges and lawyers are being bought and paid for by corporations with horrifying motivations then we simply can’t trust these myths that wearing a robe or having a PhD makes you any better or worse than any other politician in the pocket of the highest bidder.
One-Third Don’t Know Obamacare and Affordable Care Act Are the Same
Private Companies Fund Public-University Research
Students want Koch, corporate influence off campus
SUNY Geneseo: We never considered discipline in Snapchat photo investigation
Nancy MacLean, Democracy in Chains: The Deep History of the Radical Right’s Stealth Plan for America
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Ep. 2 - Do Black Lives Matter in the Courtroom?

In this episode of May it Displease the Court podcast, your hosts appellate attorney Mary Whiteside and rhetorical scholar Lee Pierce are joined by Erik Teifke, 2nd Assistant Public Defender at the Monroe County Public Defender’s Office. Together, they explore the question: do Black lives matter in the courtroom?
While overt racism does exist, the vast majority of unequal racial treatment occurs due to implicit bias, which we all harbor to some degree and usually avoid confronting in ourselves. That individual sense of implicit bias is certainly a problem. But it is REALLY a problem when it invades the courtroom, causing Black and Brown defendants to face harsher consequences than White defendants.
Mary and Erik were former co-workers at the Public Defender’s Office and throughout this episode they draw on their experiences handling criminal cases to discuss how the courts regularly fail to acknowledge racial bias. Racial bias can permeate and taint every part of a criminal case, from the evidence collected, to the charges filed, to plea bargaining, sentencing, pre-trial motions, all the way up through trial. Erik explores how the current wave of BLM protests have increased awareness of police misconduct and how the groundswell of public attention and support for racial justice can be used to push for the equal treatment.
Erik details the practical ideas and strategies to revamp what it means to zealously advocate for your client. Even after 25 years of practicing Erik has taken the time to think about how he can do better to push the courts to look more critically at the evidence police present, to address implicit racial bias in plea bargaining, to allow for more time to explore jurors feelings around race with the goal of trying to stop the courts from using racial and pro-police bias to victimize BIPOC defendants. 
Click here to take the Harvard Implicit Bias Test
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Ep. 1 - Black-Robe-Itis: Bringing Judges Back Down to Earth

In the inaugural episode of May it Displease the Court podcast, your hosts appellate attorney Mary Whiteside and rhetorical scholar Lee Pierce explore what they believe to be the fundamental flaw in the court system:  the myth of objective, impartial, independent judges that hand down justice from on high.
The myth of the deified judiciary is packaged and sold through education, entertainment and the media. Mary looks specifically at how law school indoctrinates future lawyers into the notion that the law and the Judges should be respected to the point of reverence. Lee connects the myth to some nerdy rhetoric stuff about the difference between the Book of Judges and the Book of Kings in the Bible. Even though the Bible replaces Judges with Kings, it still treats the Kings as these mythical godlike beings.
The second half of the episode looks at what has happened to this myth under the Trump administration. In addition to the myth of reverence that insulates judges from criticism, we now  have big corporate money from the Koch brothers and other pro-corporate anti-democratic funders buying judges and court decisions and plotting to ruin democracy.
Links to research cited in this episode:
Why judges are better than kings
Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right
Statement on the Rule of Law and an Independent Judiciary
Click here for the episode transcript 
Click here to view the episode on our website