Menu Close

Washington and Lee Law Review - Online Edition

Development

by Melanie D. Wilson

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this harsh treatment of jurors by exposing them to serious health risks—sometimes to decide cases with minor charges. This exploitation of jurors is short sighted. When courts endanger jurors, they create serious due process concerns for the accused and erode public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate safeguards, verdicts will be suspect, mistrials will dominate, and many citizens who are fearful or susceptible will fail to appear (or worse, contract the virus during jury service), resulting in juries less representative of the community.

Concerns over the virus are already resulting in some jurors defying their legal obligation to appear for service. Surveys also show that seventy five percent of jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting COVID-19. When jurors are worried and distracted, they may rush to a verdict—any verdict—or fail to appreciate all the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.

Roundtable

by Brandon Hasbrouck

It is time for Washington and Lee University to drop both George Washington and Robert E. Lee from the University name. The predominantly White faculty at Washington and Lee recently announced that it will petition the Board of Trustees to remove Lee from the University name. This is the first time in Washington and Lee’s history that the faculty has drafted such a petition. It is worth exploring why the faculty has decided to make a collective statement on Lee now and why the faculty has not included a demand to drop Washington in their petition. The answer is simple—it is no longer acceptable, profitable, or convenient to be associated with Lee but it is for Washington. At least for now.

Roundtable

by Leah D. Williams

Since the broadcast killing of George Floyd by four Minneapolis police officers on May 25, all levels of government, and institutions of every kind, have scrambled with breakneck speed to confront their own ties to America’s most deeply entrenched demons: White supremacy and systematic racism. Washington and Lee has certainly not been exempt from this reckoning. A majority of its faculty and student body have already passed resolutions calling for the removal of Robert E. Lee’s name from the university. As a direct descendent of those enslaved by the school, I commend these resolutions; yet, I strongly offer that a name change may be a start, but it is not enough to reconcile the sins of the past.

Roundtable

by Carliss N. Chatman

Alabama has joined the growing number of states determined to overturn Roe v. Wade by banning abortion from conception forward. The Alabama Human Life Protection Act subjects a doctor who performs an abortion to as many as ninety-nine years in prison. The law has no exceptions for rape or incest. It redefines an “unborn child, child or person” as “[a] human being, specifically including an unborn child in utero at any stage of development, regardless of viability.”

When states define natural personhood with the goal of overturning Roe v. Wade, they are inadvertently creating a system with two-tiered fetal citizenship. This is because Roe and Planned Parenthood v. Casey create a federal floor for access to the right to choose—a rule that some ability to abort a fetus exists in the United States. If these cases are overturned, that eliminates only the federal right to abortion access. Overturning Roe would not prohibit a state from continuing to allow access. In a post-Roe world, in states like New York that ensure the right to choose through their constitutions and statutes, citizenship will begin at birth. In states that move the line to define life as beginning as early as conception, personhood and citizenship will begin as soon as a woman knows she is pregnant.

Trying to define citizenship and personhood based on the laws of each state creates some far-fetched and even ridiculous scenarios. If we follow that logic, we will tie our Constitution into a knot no court can untangle.

This Article was originally published in The Washington Post on May 19, 2019. It has been edited and updated prior to its publication in the Washington and Lee Law Review.

Development

by Charles L. Slamowitz

This article takes an approachable, forward-thinking, and academic dive into congressional insider trading in the wake of the coronavirus (COVID-19) pandemic. After a confidential briefing by the Senate Health Committee warned of COVID-19, massive stock sell-offs by members of Congress and their spouses suddenly ensued. Some senators even publicly disparaged COVID-19’s viral effects while their own shares were being offloaded. By the time the American people were made aware of its dangers, vast investment holdings by congressional insiders had already been sold. Shockingly, it is unclear if congressional insiders trading on confidential coronavirus information are actually breaking the law. Congress members are also not required to timely disclose trades, even during pandemics, leaving the American people in the dark. This article provides the only viable remedy to congressional insider trading, crucial for governmental transparency and accountability to precipitously curb public health crises moving forward.

Roundtable

by Shaakirrah R. Sanders

I join Carliss Chatman’s call to fully consider the equal protection implications of the conception theory and raise an additional right to which a fetus may be entitled as a matter of equal protection: health care, which implicates state laws that provide civil and criminal exemptions to parents who choose religious healing instead of medical care for their children and minor dependents. The evidence of harm to children from religious healing is well documented. Yet, currently, approximately forty-three U.S. states and the District of Columbia have some type of exemption to protect religious healing parents in civil and criminal cases.

Religious healing is the belief that “prayer” or “spiritual means” rather than modern medicine can cure individuals. Criminal exemptions apply to prosecutions for murder and homicides, child abuse, child endangerment, child neglect, contributing to neglect or deprivation, criminal injury, cruelty, delinquency, failure to provide medical and surgical attention, failure to report suspected child neglect or abuse, manslaughter, nonsupport, and omission to provide for a child. Civil exemptions apply to claims for child abuse, child neglect, contributing to neglect, dependency proceedings, failure to provide medical care or adequate treatment, failure to report, maltreatment, negligence, nonsupport, and temporary or permanent termination proceedings.

Development

by Robert Gatter & Seema Mohapatra

As states begin to loosen their COVID-19 restrictions, public debate is underway about what public health measures are appropriate. Many states have some form of mask-wearing orders to prevent the spread of COVID-19 infection. Public health guidance from the Centers for Disease Control and Prevention and the World Health Organization has conflicted. From a public health point of view, it is not clear what the right answer is. In the absence of directives, individuals are also making their own choices about mask use. At a time when public health measures, like shelter-in-place orders and social distancing, are being used to stop the spread of coronavirus, wearing masks can be seen as a form of solidarity and desire to not infect others. Similarly, not wearing a mask can also be a political statement of sorts. Additionally, black men wearing masks have reported being asked to leave stores and fearing for their own safety. This Article provides an overview of the legal and policy landscape and focuses on the potential for policing against black Americans when mask mandates are in place. Despite the public health benefits of mask usage, due to mask mandates likely being enforced discriminatorily, we advise caution against mask mandates.

Development

by Stephen E. Smith

Maintaining social distance in the time of COVID-19 is a public health priority. A crowded courtroom is an environment at odds with public health needs. Accordingly, until science determines otherwise, it will be necessary for judges to manage courtroom attendance and exclude the public from trials, wholly or in part. Courtrooms may be closed to the public, despite the Sixth Amendment’s right to a public trial, when the closure is justified by a strong government interest and is narrowly tailored to further that interest. Typically, this heightened scrutiny is applied on a case-by-case basis and turns on a case’s specific circumstances. This Article proposes that in this period of pandemic, with indisputably strong government interests in public health and with few means available beyond closure to satisfy those interests, courtroom closures may be ordered by trial courts, and approved by appellate courts, almost categorically. It further suggests that there are alternative protections available that may be employed by courts to further the Sixth Amendment’s good government purposes in this time of emergency.

Response

by Allison Weiss

In his note, Ryan Johnson drills down on the various ways that courts within the Second Circuit are approaching the viability of § 1983 lawsuits by incarcerated individuals against supervisors within correctional facilities. But how important is supervisory liability in the first place? Qualified immunity allows courts, as Mr. Johnson puts it, to “cop-out” from engaging in difficult constitutional inquiries and instead dispose of the case by invoking the magical words: “the law is unclear.” Over the past thirty-five years, the Supreme Court has decided many qualified immunity cases, never seriously signaling a desire to reconsider its qualified immunity precedent. However, with the Supreme Court’s current trend of overruling its prior decisions, we can hope that the Court’s flawed qualified immunity jurisprudence is next on the chopping block.

This comment is a response to Ryan E. Johnson, Note, Supervisors Without Supervision: Colon, McKenna, and the Confusing State of Supervisory Liability in the Second Circuit77 Wash. & Lee L. Rev. 457 (2020), which received the 2019 Washington and Lee Law Council Law Review Award.

Roundtable

by Helen M. Alvaré

It is pointless to approach Professor Chatman’s argument on its own terms (to wit, “tak[ing] our laws seriously,” or equal application across myriad legal categories of “full personhood” rights) because these terms are neither seriously intended nor legally comprehensible. Instead, her essay is intended to create the impression that legally protecting unborn human lives against abortion opens up a Pandora’s box of legal complications so “ridiculous” and “far-fetched” that we should rather just leave things where they are under the federal Constitution post-Roe v. Wade and Planned Parenthood v. Casey. This impression, in turn, is a tool to forward Professor Chatman’s personal preference for legal abortion—which she gives away by calling legal abortion by its political name: “the right to choose.”

But her arguments, sounding in law, about the alleged chaos to flow from a law protecting unborn human lives from abortion are false on the grounds of basic legal principles concerning federal constitutional and immigration law, as well as the legal principles underlying state legislation and statutory interpretation. I will set these legal principles out below before turning to the more interesting and legally plausible matter of whether or not lawmakers should choose to take into account both the needs of pregnant women and the humanity of unborn life when crafting laws affecting both, whether the situation involves immigration, incarceration, or women’s need for financial support.

css.php