A Tradition That Will Truly Be Unlike Any Other

There are events, mainly holidays, that mark the passing of time and, for lack of a better way of putting it, the rhythm of the year. For golfers, or even those simply interested in sports, the Masters is such an event. The Masters marks the arrival of Spring and the start of the major championship golf season, with long summer days just ahead. 

I started playing golf when I was 11 or 12 at a nine hole public course outside of West Des Moines, Iowa. I often played golf with my mother, who was a good athlete and a decent golfer. Although I never was good at it, my personal interest in golf waxed and waned throughout the years, reaching its height in the 1990s. Golf, often considered an unfair game, provided a nice respite from my law firm, where things at the time were really unfair. 

My wife took up the game and we pretty much arranged our few private hours, including vacations, around the game. Golf took us on trips to Canada, Ireland, and other places. We also had some short trips to North Carolina and Florida with my parents, as Dad had also resumed playing. It's not surprising, I guess, that I have played very little since Mom died in 2008.

Through it all, we were fans of the professional game. We were fans of Jack Nicklaus when he played. The Masters was always a centerpiece. Through a few lucky connections, I was able to attend the Masters several times in the 1990s. We also got to go to practice rounds, and I was able to take my parents for practice rounds on two occasions, which made me very happy. I especially remember Ben Crenshaw, quite improbably, winning in 1995. 

If you have never been to Augusta National, it is something to behold. First, it is located just off a road that could literally be "Anywhere, U.S.A." As soon as you enter the gates, however, it becomes magical. It really is as beautiful as Jim Nantz says, and looks like every blade of grass was clipped with manicure scissors. Everything is predominantly green with bright splashes of color from dogwoods, azaleas, and the spring attire of the patrons (the Masters has "patrons," not, God forbid, "fans"). The course is very hilly, much more so than is apparent on television. Although it is very difficult to obtain tickets (badges, actually), they are not overpriced, and the concessions are downright, well, inexpensive (I don't think the Masters folks would like me to say "cheap"). The folks at Augusta National really know how to put on a a tournament.

But now we get to the crazy and generally awful year of 2020 where the world has been turned upside down by a virus. The Masters will be held this week, in the middle of a very strange football season and just before Thanksgiving. There will be no patrons and thus no need for concessions, including the iconic pimento cheese sandwich (the chicken sandwich is actually much better, I think). There will be none of the famous roars through the pines in appreciation of great shots. It will be interesting to see how the course looks--green for sure and maybe a hint of late fall color. We will have to see about flowers.

Jack Nicklaus and Gary Player will presumably be there on Thursday morning for the ceremonial first tee shots. Tiger Woods is the defending champion. Jim Nantz will be there to extol the course's many virtues.

 Despite these familiar figures, it will not be the same. The Masters will end the championship golf season instead of beginning it. Some will argue that the Masters should have been cancelled in 2020, as was the Open Championship. 

As for me, I guess a very strange Masters in November is better than no Masters. But it truly will be a tradition unlike any other.

COVID-19 and Legal Services

As a seasoned lawyer (some would say old geezer) who recently left the large law firm world, but who still practices a little and tries to stay in touch, I have watched "Big Law's" reaction to the COVID-19 situation with interest. Many law firms have put out alerts and bulletins. Some have put on webinars. Many of these resources are excellent and most are free. I commend them to your attention, with the gentle admonition that if your company needs specific and tailored advice, it should be prepared to pay its own lawyer for it.

I'm writing this post to add my two cents as to what law practice areas are likely to be most affected by the outbreak. Of course, the situation is fluid and may (and probably will) change. But here are my educated guesses.

1. Employment law. Virtually every aspect of employment law is potentially implicated, including OSHA, labor law (management/union relations), leave policies, and employment discrimination. My former firm, Thompson Hine LLP, held an informative webinar on these issues on March 10, which as of this writing can still be accessed on that firm's website. 
2. Employee Benefits. Health care plans and other employee benefit plans (disability, etc.) are regulated and implicated in the outbreak. Benefits lawyers should be very busy, particularly in the next few months.
3. Insurance. As events are cancelled and business is disrupted, companies will look to their insurers for coverage. I anticipate a lot of claims, but also expect a lot of denials. To the extent companies have business interruption insurance (and many do not), it typically requires a direct physical loss to property. Will there be coverage for bodily injury claims allegedly resulting from exposing someone to COVID-19? Maybe, but I expect insurers to rely on specific exclusions and, in some states, even the pollution exclusion. Policies are different and courts in different states interpret policies differently. Check with your insurance broker or agent and, if necessary, a coverage attorney.
4. Litigation. In our litigious society, it is not surprising that COVID-19 cases have already been filed. I would expect companies in the travel industry to be the initial targets, but the creativity of the plaintiffs' bar never ceases to amaze me. There will be claims for personal injury ("bodily injury" in the insurance world). There will also claims relating to cancellations of events. I expect a lot of contract litigation resulting from impaired and delayed performance. Expect a lot of litigation about what constitutes "force majeure" sufficient to excuse delays.
5. Bankruptcy. Expect a significant increase in bankruptcy filings. Many businesses will suffer because of the outbreak. Companies in the travel, hospitality and oil businesses have already been seriously affected. Many companies will postpone capital expenditures. Expect many companies to "slow pay" on their obligations, which will have a negative impact on vendors. All of these factors will cause some companies to seek protection in bankruptcy court.

Other areas will be affected, and this list is by no means exclusive.

Apollo 11: Fifty Years Later and I Feel Cheated

The fiftieth anniversary of the Apollo 11 landing on the Moon is upon us. Rightly considered perhaps the greatest technological achievement of all time--and one that was completed from start to finish in less than ten years--I am happy to be in the minority of living Americans who witnessed the first steps on the Moon live on television. It was amazing.

It was especially amazing for a kid who was not quite 12, but who had, like many others at the time, immersed himself in the space program for his entire life. I remember watching the Mercury and Gemini missions on our faithful old black and white Magnavox TV. I read everything I could get my hands on about the space program. I put together model airplanes and later model rockets. By the time of the first Moon landing, my parents had splurged on a new color TV (G.E., if memory serves), but the Moon walk of Armstrong and Aldrin was broadcast in black and white, so it did not matter.

To a kid, Neil Armstrong was the perfect American hero, but, then again, so were all of the astronauts. Not only were they cool guys, they almost all had kids like my brothers and me. They all trained hard, seemed fearless, and, at least as presented by NASA, all were perfect role models. 

As fast as the space program moved, it moved too slowly for my juvenile sensibilities. For one thing, we needed to beat the Russians--the bad guys who caused us to "duck and cover" under our desks in elementary school. Waiting for the Moon landing seemed like waiting for Christmas morning--it took forever. When the Moon landing finally happened and the mission unfolded flawlessly, it seemed almost too good to be true. NASA could accomplish anything! 

After Apollo, the next stop had to be Mars and the other planets. Star Trek in real life was possible. Lost in Space, another TV program from the era, was set in 1997 and they were  headed to Alpha Centauri. Even that did not seem too far-fetched after Armstrong and Aldrin walked on the Moon. But the best thing was the certainty that the future was going to be even more amazing than Apollo 11. By 1997 we surely would  have been to Mars and maybe to other planets. Even better, by 1997 I would just be turning 40, which was about my Dad's age at the time of the Moon landing. Dad did not seem too old. And who knew where we would be by the time I became really old, like 60? The solar system--and maybe beyond--was to be my generation's oyster!

The adventures and advances that seemed predestined in July of 1969, it sadly turns out, never happened. As this is written, no person has ventured outside of low Earth orbit since the last Apollo mission in 1972. Embarrassingly, our country cannot even put a person into low Earth orbit without hitching a ride on on Russian Soyuz rocket, a spacecraft of 1960s vintage that seems downright primitive compared to Apollo. This has been the case since the last Space Shuttle launch nearly eight years ago. This lack of capability is even more embarrassing given that Apollo was perfected and flown to the Moon in slightly less than eight years.

Thus, I feel cheated and our country should feel cheated. The "one giant leap," as Armstrong so aptly put it, has been squandered. In fact, we have gone backward. The extent of the regression is perhaps best put in context by comparing the 50 years before Apollo 11 to the 50 years after. In 1919, only 16 years after the Wright Brothers' first flight, we were flying airplanes made of wood and cloth. By 1936, Douglas had introduced the DC-3, a metal monoplane that can fairly be called the first modern airliner. By the 1940s, the first jet military aircraft were flying and, in 1947, Chuck Yeager broke the sound barrier in the Bell X-1. The B-52 bomber was introduced in 1955, is still in service today, and is expected to be in service for decades to come. Shortly thereafter, Boeing's 707 launched jet passenger service domestically and internationally. 

And after the Soviets launched Sputnik in October 1957 and shook our country out of its complacency, Alan Shepard's first Mercury suborbital flight happened in May 1961, followed by John Glenn's first orbital Mercury flight in February 1962. Then came Project Gemini, where we truly learned to "fly" in space. Next came Apollo 7 in 1968, the intervening Apollo flights, and the Apollo 11 landing in 1969. In short, the 50 years before Apollo 11 were marked by never-ending progress.

The 50 years after Apollo 11 are not so good. Other than the remaining Apollo missions which ended in 1972, we have not accomplished much in space. Our attention was diverted for 30 years by the Space Shuttle, a flawed and somewhat dangerous craft that was impressive only for its size. The Shuttle, unlike Apollo, never accomplished what its designers said it would (it was never a truly reliable "space truck," as had been represented). The Shuttle never ventured beyond low Earth orbit and much of what it carried into space could have been put there by other launch vehicles. The worst thing about the Shuttle was that it completely stunted development of other, more capable, manned systems. It is not surprising in the least that the current designs proposed for returning Americans to space resemble Apollo, not the Shuttle. 

The rest of aerospace has also not had an impressive run since July 1969. Other than incremental improvements in fuel efficiency and noise, modern airliners are no more capable than the 707s and 727s that flew then. Americans travel in the same way, and for the most part less comfortably, than in July 1969. Concorde was retired 16 years ago.

By now you are probably asking, "OK, I understand that you feel cheated out of your science fiction-like future, but what is the real cost?" The short answer is that we can never fully know, but it is a lot. First, we lost a primary impetus for young people to pursue what we now call STEM in their studies and careers. Apollo made it cool to study math, science and engineering. At its height, Apollo supported 400,000 jobs, many in engineering and manufacturing. If the space program had remained on the front burner instead of being treated as an afterthought, it is certain that we would have many more scientists and engineers and more high paying jobs in those fields. Those who complained about the cost of Apollo (which was many times less than the cost of the Vietnam war) seemed to assume that the funds were burned up like rocket fuel when, in reality, they supported the education, training, advancement, and employment of hundreds of thousands of their fellow citizens, mostly in private industry.

Second, we lost a huge driver of beneficial technology. As the fiftieth anniversary approaches, books and articles have chronicled how Project Apollo fostered the development of the integrated circuit and the digital computer. Other notable technological developments from the space program that we use every day (admittedly, not necessarily derived from Apollo) include communication satellites, weather satellites and global positioning systems. The Jet Propulsion Laboratory has listed 20 notable inventions developed from the space program, and there are undoubtedly hundreds more. Although we have these inventions, we can only dream of what else might exist if space exploration had remained a priority.

Third, we lost a tremendous source of national pride and unity. This might be the greatest cost. Almost everyone in the U.S. watched Neil Armstrong step on the Moon, and many more watched world wide. And then everyone held their collective breath and watched as the crew returned safely to Earth. After years of declining prestige, the Moon landing re-established our country for a shining moment as not only the world leader in technology, but as the leader of the free world. Unlike the Soviet program, which was kept under wraps until after missions were completed successfully (and unsuccessful missions were simply kept under wraps), our missions were broadcast live for the whole world to see.

We could surely use of source of national pride and unity today. Instead, our so-called leaders on all sides exchange caustic barbs, insults and taunts like junior high school kids on Twitter (surely the worst invention of the 21st Century). Our politicians seem to become dumber every year. No one has, as George H.W. Bush put it, "the vision thing." And there is no John Kennedy or Ronald Reagan on the horizon. Despite our prosperity and creature comforts, it is in many respects a sad and slightly embarrassing time to be an American.

And so, while remembering the first Moon landing in all its glory, it is impossible for me not to wonder what could have been and should have been if we had not squandered the one giant leap. As I have now entered the twilight of late middle age (or, perhaps more accurately, early old age),  there is no certainty that I will live to see a return to the Moon (we have to get back to low Earth orbit first), and any chance of witnessing a Mars landing seems like a pipe dream. Elon Musk and Jeff Bezos are working on it (as is, to some degree, NASA), but from my perspective, they really need to get on the stick! In 1969, time seemed unlimited. Now it does not.

But at least there is Apollo 11. I watched Armstrong and Aldrin walk on the Moon when it happened. Most Americans living today cannot say that. They should really feel cheated.

My Favorite Books of 2018

Most of my mornings involve time listening to audiobooks while working out. These are my favorites from 2018. Most were published in 2018 or recently. My tastes currently run toward history and biographies. Perhaps you will find some inspiration for your next read. I've included links to Amazon. All of these are first rate.

1. Bad Blood: Secrets and Lies in a Silicon Valley Startup, by John Carreyrou. This is the riveting story of the rise and fall of Theranos and its founder, Elizabeth Holmes. They claimed to have developed proprietary technology for blood tests from finger stick samples. This book reads like a novel and is difficult to put down. There are many lessons about life and business in this book--many of them about what not to do. The famous lawyers involved do not cover themselves or the legal profession with glory. Highly recommended.

2. The Shipwreck Hunter: A Lifetime of Extraordinary Discoveries on the Ocean Floor, by David Mearns. This is the story of the career of David Mearns, who is, as the title indicates, a shipwreck hunter. He has located the wrecks of many famous ships, including the Hood, the Bismark, and the Sydney. I was unaware of Mearns before reading this book, but his life is truly extraordinary. Very well written and written with a lot of compassion for the victims. It also reads like a novel (well, actually, a collection of short stories), and is difficult to put down.

3. Ship of Fools, by Tucker Carlson. This shortish book by Fox News contributor Tucker Carlson (let's get the Fox News connection out of the way) is pretty outstanding. It explains quite lucidly how our country is being led, literally, by a ship of fools from both parties. Carlson explains that, by abandoning mainstream America, both parties sowed the seeds that allowed Trump to be elected. Carlson's analysis of how liberals have largely abandoned the working class and liberal ideas (such as an expansive reading of the First Amendment) hits the mark. In other words, this is probably a more informative book for liberals than for the Fox News crowd. It will make you think.

4. Rocket Men: The Daring Odyssey of Apollo 8 and the Astronauts Who Made Man's First Journey to the Moon, by Robert Kurson. Having grown up in the 1960s, it's not surprising that I'm a space program junkie. Apollo 8 (we have just reached the 50th anniversary of the mission) was daring and audacious. The book tells the story well. It was a time when our country dreamed big and seemed capable of accomplishing almost anything. I miss those days and rue the squandered opportunities about what we could have and should have accomplished in the intervening half century.

5. Mission: Jimmy Stewart and the Fight for Europe, by Robert Matzen. This book is about Jimmy Stewart's service in the Army Air Corps in World War II, a subject that Stewart did not discuss much in his lengthy career after the war. Stewart was a true patriot, literally having to fight for the right to fight for his country. And he did not fly a desk--he flew B-24 Liberators. A really great book.

6. The Accidental President: Harry S. Truman and the Four Months That Changed the World, by A.J. Baime. So much has been written about Harry Truman that I wondered if there would be anything new here. But, then again, I really like A.J. Baime. Baime focuses on the first four months of the Truman Administration after Truman became President on the unexpected death of FDR in April 1945. Baime ably makes the case that those four months set into motion events that would shape the remainder of the 20th Century and beyond. The book is well-written and really moves along.

7. The Age of Eisenhower: America and the World in the 1950s, by William I. Hitchcock. As the author notes, President Eisenhower has risen steadily in recent years in the historical rankings of presidents. The book focuses mainly on Ike's years in office, not on his outstanding military career. Hitchcock's balanced treatment demonstrates that Eisenhower faced many challenges during his presidency. Eisenhower approached them cautiously and with a steady hand. Given what we have dealt with in the 21st Century, a return to the Eisenhower approach would be very welcome--even though it does not appear to be on the horizon. 

8. Three Days in Moscow: Ronald Reagan and the Fall of the Soviet Empire, by Brett Baier and Catherine Whitney. Yes, it's that Brett Baier of Fox News. Do not let that dissuade you from reading this book. The book focuses on a speech President Reagan made to university students in Moscow focusing on freedom and liberty near the end of his presidency. The speech was truly a remarkable event--given that Reagan bashed the Soviet Union as an "evil empire" upon taking office--and an event that would largely be lost to the sands of time but for this book. The book provides a fairly intimate look at the relationship between Reagan and Gorbachev--two very different men who somehow found a way to work together. They (along with George H.W. Bush and Margaret Thatcher) made the world seem to work for a short period of time. Unfortunately, Putin (and others) came along and it did not last. The book moves along well and is well-written.

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Where Is Our Apollo 8 Moment?

As I write this on election day in 2018, our country is fractured. People disagree over everything, even minutiae, and, some would say, especially minutiae. Politics has descended into a mixed marital arts fight, with each side trying to destroy the other. Truth and decency do not matter. Forgiveness and redemption seem to be lost concepts. We do not dream big anymore or live big dreams. Shame on both sides. 

Our country has been through similar times before. My mind has recently drifted back many times to 1968. I turned 11 in 1968, so it may seem odd that I actually remember those times. Then again, a friend from years back commented that I was born 35. A funny comment, but I do remember.

1968 was, by and large, an awful year. The country was tearing itself apart over the Vietnam war. Young men were being drafted and sent off to fight and some to die. Martin Luther King, Jr. was assassinated. Then Robert Kennedy. There were riots in the streets at the 1968 Democrat convention in Chicago. National pride and unity seemed to be lost causes.

In the background, the Cold War was still raging. Like many of my generation, I can remember the "duck and cover" drills--as if hiding under your school desk would help. 

The hottest part of the Cold War, however, was the space race, and it was at full tilt. The U.S. had started far behind. The Soviets had launched Sputnik, the first satellite in October 1957. They followed that up with multiple firsts, including the first man in space, Yuri Gagarin, in April 1961, the first woman in space, Valentina Tereshkova, in 1963, and the first space walk, by Alexei Leonov in 1965. 

The Soviet success in space was a huge blow to national pride and also created doubts about national security. In May 1962, President Kennedy issued this call and challenge to Congress: "I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the Moon and returning him safely to the Earth. No single space project in this period will be more impressive to mankind, or more important for the long-range exploration of space; and none will be so difficult or expensive to accomplish."

Despite being behind, the U.S. made steady progress. Alan Shepard made a suborbital flight in a Mercury space capsule in 1961. John Glenn made an orbital flight in January 1962. From 1964-1966, Project Gemini flew two-man crews on a series of missions designed to create a bridge to the Moon. Project Gemini proved that spacecraft could rendezvous and dock, which would be essential for landing on the Moon in Project Apollo.

Project Apollo was massive, involving hundreds of thousands working for NASA and civilian contractors. The Apollo spacecraft was designed for three men in the primary command module, with a separate spindly lunar module (LM) to ferry two of the men to the surface of the Moon and back. Apollo was to be proven out in a series of incremental flights, progressing from low Earth orbit to high Earth orbit, then a trip around the Moon, and finally a lunar landing.

The entire space program was dealt a severe blow in February 1967, when Apollo 1 caught fire on the pad during testing, killing astronauts Gus Grissom, Ed White, and Roger Chaffee. The fire resulted in extensive, and necessary, modifications to the command module, as well as delay.

Apollo did not fly a manned crew until Apollo 7 in October 1968, a low Earth orbit mission by Wally Schirra, Donn Eisele and Walter Cunningham. Apollo 7 flew into orbit on a Saturn IB rocket, not the much larger Saturn V that would be needed to take men to the Moon.

Apollo 8 was to be another orbital mission. But the LM had fallen behind schedule and was not ready for testing. There were also rumors that the Soviets planned to fly a mission around the Moon before the end of 1968. In August 1968, NASA administrator George Low conceived the rather audacious idea of changing Apollo 8's mission to fly to the Moon in December 1968. Somewhat surprisingly, given the prior incremental plan, the NASA brass approved the change.

I'm not sure that the public understood--either at the time or in subsequent years--just how radical the Apollo 8 mission change was. First, it would be the initial manned flight using the Saturn V booster. The most recent unmanned test of that booster had significant problems. Second, the mission involved minute and precise planning that had never been done before. Third, it was only the second flight of the Apollo command module. Fourth, the trip would be made without the LM, which could have served as a "life boat," as it subsequently did on Apollo 13. Fifth, the mission would be flown with only four months training, a relatively short period, and one that was made shorter by the fact that the mission plan was being created on the fly.

Despite the many challenges and unknowns, Frank Borman, Jim Lovell and Bill Anders agreed to go. Because of the "launch window" needed for the mission, they would, if all went according to plan, launch on December 21, and be orbiting the Moon on Christmas Eve and Christmas. That is exactly what happened.

The launch was perfect, and the power of the Saturn V astonishing. Other than a bout of space sickness by Borman, the flight was also perfect. True to the plan, Apollo 8 was orbiting the Moon on Christmas Eve, with a broadcast from the Moon planned.

Along with others in our Nation and around the globe, my family and I gathered on Christmas Eve, watching every minute of the mission we could. This was truly astonishing. In less than eight years, we had gone from a single man making a 15 minute suborbital flight to visiting another heavenly body--a place where no person had gone before. It could have been science fiction, but it was better. It was real. As part of the broadcast, the crew sent "all the people back on Earth" a message, reading from the creation story in the Book of Genesis. A recording of this remarkable broadcast is readily available. The crew returned safely to Earth.

The effect of the Apollo 8 mission was extraordinary. For at least one shining moment, the country, at least for the most part, put aside its differences and stood in awe of this remarkable achievement. "Earthrise," a photo taken by Bill Anders became one of the most memorable of all time. The sight of our shining blue planet above the Moon's cratered and lifeless surface put our small, but unique, place in the universe in perspective.

Time Magazine named the astronauts their men of the year. As of this writing, all of the astronauts are still alive, with Borman and Lovell each 90 years old. Time put together a nice retrospective on the mission a few years ago, which is well worth watching.

Nearly 50 years later, and in an equally fractious and turbulent year, I wonder if we will have our own Apollo 8 moment. It seems very far away. NASA is out of the dream business and cannot even put a man in low Earth orbit without hitching a ride on a Soviet rocket (ironically, of the same vintage as Apollo). But, for some of us, we have the memory. And, for all of us, we have the history.

If you would like to learn more about this incredible journey, I recommend Apollo 8: The Thrilling Story of the First Mission to the Moon, by Jeffrey Kluger and Rocket Men: The Daring Odyssey of Apollo 8 and the Astronauts Who Made Man's First Journey to the Moon, by Robert Kurson. There are also some good interviews of the astronauts available on You Tube.

Have Some Prosecutors Gone Amok?

I am not a prosecutor nor a criminal defense attorney. As an attorney and citizen, however, several recent high profile prosecutions, locally and nationally, have caused me a great deal of concern. Our constitutional system is based on the rule of law and the rule of law is largely based on the protection of the individual citizen from the state. Overly zealous prosecutors--largely unconstrained by budgetary concerns and backed by the enormous power of the government--threaten the rule of law.

Almost 40 years ago at the University of Georgia School of Law, Associate Dean Walter Ray Phillips taught the course on Legal Ethics. We learned that prosecutors have a greater responsibility than doing whatever is necessary to send people to prison. Stated in a very general sense, we learned that prosecutors represent the citizens (and do not, for example, represent the victim) and have special ethical obligations that go beyond the obligations imposed on ordinary attorneys. Put simply and broadly, prosecutors have duty to seek justice.

Recent cases have caused me to wonder if something has changed. After some brief research, it became clear that the standards have not changed much at all. What seems to have changed is the application of the standards (or complete perhaps complete disregard of the standards) in some cases.

The American Bar Association Model Rules of Professional Conduct are adopted by most state bar associations as the rules governing the practice of lawyers in the jurisdiction. Sometimes, they are adopted with amendments or deletions, and not all rules will apply in all jurisdictions. But the Model Rules are significant and they establish generally accepted norms of conduct. 

Without comment, here in the blue type is the full text of ABA Model Rule 3.8, entitled "Special Duties of Prosecutors":

The prosecutor in a criminal case shall:

(a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause;

(b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel;

(c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

(d) make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense and to the tribunal all unprivileged mitigating information known to the prosecutor, except when the prosecutor is relieved of this responsibility by a protective order of the tribunal;

(e) not subpoena a lawyer in a grand jury or other criminal proceeding to present evidence about a past or present client unless the prosecutor reasonably believes:

(1) the information sought is not protected from disclosure by any applicable privilege;

(2) the evidence sought is essential to the successful completion of an ongoing investigation or prosecution; and

(3) there is no other feasible alternative to obtain the information;

(f) except for statements that are necessary to inform the public of the nature and extent of the prosecutor's action and that serve a legitimate law enforcement purpose, refrain from making extrajudicial comments that have a substantial likelihood of heightening public condemnation of the accused and exercise reasonable care to prevent investigators, law enforcement personnel, employees or other persons assisting or associated with the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.6 or this Rule.

(g) When a prosecutor knows of new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted, the prosecutor shall:

(1) promptly disclose that evidence to an appropriate court or authority, and

(2) if the conviction was obtained in the prosecutor’s jurisdiction,

(i) promptly disclose that evidence to the defendant unless a court authorizes delay, and

(ii) undertake further investigation, or make reasonable efforts to cause an investigation, to determine whether the defendant was convicted of an offense that the defendant did not commit.

(h) When a prosecutor knows of clear and convincing evidence establishing that a defendant in the prosecutor’s jurisdiction was convicted of an offense that the defendant did not commit, the prosecutor shall seek to remedy the conviction.

The text of the rule can also be found here. 

The ABA has also commented on the special role of prosecutors in the legal system. The ABA's Comment 1 to Rule 3.8 provides in part:

A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons. The extent of mandated remedial action is a matter of debate and varies in different jurisdictions. 

The ABA Criminal Justice Standards for the Prosecution Function (4th ed.) also provides useful commentary. Section 3-1.2(b) states:

The primary duty of the prosecutor is to seek justice within the bounds of the law, not merely to convict.  The prosecutor serves the public interest and should act with integrity and balanced judgment to increase public safety both by pursuing appropriate criminal charges of appropriate severity, and by exercising discretion to not pursue criminal charges in appropriate circumstances. The prosecutor should seek to protect the innocent and convict the guilty, consider the interests of victims and witnesses, and respect the constitutional and legal rights of all persons, including suspects and defendants.

A link to this publication can be found here. 

There are no doubt prosecutors at every level of government who try to meet these standards every day. However, and without commenting on any particular case, anyone who follows the news and is aware of these standards should be very concerned. Simply stated, it appears these rules sometimes (and perhaps often) have been kicked to the gutter in favor of partisanship (on both sides), publicity, or worse.

Dean Phillips at UGA law school taught us well all those years ago. The basic rules have not changed, and it's a shame some have forgotten them or never learned them in the first place. Our legal system and society will not be well served until we expect and demand that all prosecutors live up to these well-established, but sometimes overlooked, standards. The rule of law is simply too important to put in jeopardy.

Ode to an Old Friend

I actually wrote this post two years ago today, on April 9, 2016. I did not publish it until today. My friend who is the subject of the post died weeks after it was written. His name was Hans-Joachim Schreiber. He was a brilliant, good and decent man, and a true friend in every respect.

Growing older can bring perspective, wisdom, and sometimes joy. But it can also bring sadness. Last week, I learned that a dear old friend from Germany has untreatable cancer. He cannot see visitors. There is nothing to be done except to send thoughts and prayers.

It came suddenly. I spoke to him only four or five weeks ago. He had a bad cold, but felt he was getting better, and was planning a trip. I had called more recently to try to arrange a lunch or dinner on an upcoming trip across the pond, and learned the bad news.

It has not yet sunken in for me. He is a true friend. Someone you can always count on. Incredibly intelligent. A true genius, actually. He speaks German as a native language, and is fully fluent in French and English. He actually knows Latin. He knows more about more things, and at a detailed level, than anyone I have known. Always looking to learn new things. He has an amazing sense of humor and remembers every joke he ever heard. We did not get to see each other often, but I always looked forward to seeing him. We talked about life, family, cars, aircraft, inventions, and, yes, legal issues. It was always a good time. I honestly cannot remember ever having a disagreement with him, although there are subjects on which we agreed to disagree. He always seemed like the older brother I never had.

In trying to process this, I have thought about what he would probably say. I imagine it would go something like this: "It's very sad, but there is really nothing to be done. Try to be kind to my wife and family. Remember the good times and me with a smile. Try not to be sad, because it will not accomplish anything. I've had a truly good and interesting life, a wonderful family, and many friends. I would have liked a few more years, but I really can't complain."

A few more thoughts. The Romans said "carpe diem," or seize the day. Psalm 118:24 tells us: "This is the day the Lord has made. Let us rejoice and be glad in it." He is not a religious man, but I think he would agree with the sentiment. We need to try to live and enjoy every day and every interaction with family and friends. You never know if it will happen again.

Here's to you, old friend. You will be greatly and profoundly missed and always remembered. I will try to do that with a smile and not a tear.