Anonymous Tip: About That Cert Petition

Anonymous Tip: About That Cert Petition November 18, 2016

A Review Series of Anonymous Tip, by Michael Farris

Pp. 425-432

Last week I got bogged down in Christmas after promising I wouldn’t. Some of you let me know that it’s not as atypical to open all presents on New Year’s Eve as I’d thought it was—I learned something new! Either way, the gist of last week was that Peter proposed and gave Gwen a huge traditional diamond ring—slipping it into the pocket of the suit he bought her to wear when they go before the Supreme Court (if that actually happens—at this point that’s uncertain). Now Peter’s cert goes before the Supreme Court. Will they take his case?

Oh yes—and Donna is still miserable. She’s also acting nothing like Farris’s feminist stereotype of her—surprise!

For god knows what reason, Peter has to pay $4500 to have his brief printed. He’s going with a print shop located in D.C., with a long history of printing for the Supreme Court. I’m assuming the cost is related to the number of copies they’ll need to print. Regardless, Peter does not have the money. So he calls Heart of America, the skeevy evangelical fundraising org pick backing off Gwen’s case. Cindy picks up. She tells Peter that his case is very important to them and that they’ve raised “quite a lot.”

“I’ll have [Mr. Humphrey] call you. And I’ll make sure you get a check today or tomorrow.”

“I’m really in a pinch—I will need it sent overnight.”

“No problem, Mr. Barron. It will be my pleasure.”

Humphrey never returned his call that day. But before noon the following day, a check for $4,500 arrived from Heart of America. Humphrey preferred to simply mail a check for the needed amount rather than answer a lawyer’s follow-up questions about money. Peter was curious about all this, but he couldn’t argue with the results.

As we readers know, Humphrey is raising hundreds of thousands of dollars using Gwen’s case as an ask, and giving Peter peanuts. Fun.

Gail Willet was sent a copy of Peter’s cert. She deliberated on whether to make any reply, but ultimately sent “a short letter saying that they believed that the decision below had been correct and they saw no need to respond.” That apparently suited Gail well.

Willet liked the approach. Short, haughty, and confident.

Okay then. I though there style was competent, but what do I know.

Now we turn to Stephen, who is back in D.C. working for Justice Rose.

Stephen Stockton had been watching the docket like a hawk. He had commandeered a copy of the cert petition as soon as it was filed in the clerk’s office. His plan was to offer to trade the case for another one with Justice Rose’s other clerk. The case, being from his home town, would naturally hold a special interest for him, he would argue.

Is that special interest, or conflict of interest?

Stephen ended up drawing the case naturally though, so no need for the intrigue. Once he had the case, Stephen worked very hard at writing up the summary for the judge, because “it would be very bad for him personally if the judge looked into the case and found his analysis to be deliberately misleading.” Ya think? He geared his effort toward diminishing “Justice Rose’s natural interest in this kind of case.” Farris gives us Stephen’s introduction, which portrays the case as one that has interesting facts but ultimately deals with underlying issues that are already well established by the Supreme Court—namely, judicial immunity and etc.

Will Justice Rose be fooled? Will he deny cert to the case?! I can tell you’re all on the edges of your seat! What is going to happen next?!

Justice Rose is reviewing the cert petitions with his clerks. He picks up Landis.

“Hmm. Interesting facts. I always like cases with interesting facts. But we can’t go around pleasing ourselves, can we? We’ve got a Supreme Court to run here. Doctrines to pronounce. Decisions to make. Protests to engender. Creating the fodder for the next election. Important stuff here. I can’t just grant cert because the facts amuse me.”

Well that’s . . . peppy.

Justice Rose notices that the case is from where Stephen is from. He asks Stephen if he knows any of the lawyers involved, and Stephen says he doesn’t. “The case made news last summer while I was studying for the bar,” he says, “but I have only seen the lawyers on TV.” Stephen suddenly realizes he’s let on that the case was enough of a big deal to make the news, but Justice Rose informs him that “just because a case makes news in Spokane doesn’t mean it meets the criteria for Supreme Court review.”

At no point to Stephen let Justice Rose know his personal connection to one of the social workers involved. It seems like it would go badly for him if Justice Rose found this out later, because while Stephen wasn’t asked directly, I’m pretty sure Justice Rose wouldn’t accept that as an excuse. Stephen is playing a dangerous game.

Justice Rose sets the case aside at that, but luckily for Gwen, he takes his work home to read on his spare time. And this time, that included the Landis cert. He was initially not impressed, but then he got to the bit about “a sitting federal judge going into a state office building with a computer expert and personally discovering tampered documents.” That he finds very interesting indeed. And then he notices “his old acquaintance Charley French’s name” on the front of the cert. That gets his attention too, and Stephen’s intrigues aside, Justice Rose decides to argue that the Supreme Court should take the Landis case.

Chief Justice Winston leads the meeting on February 3rd, when the Landis case will come up. Most of the back and forth is what you would expect. At one point, though, Winston shuts Justice Dowling down for pointing out that he wasn’t on the case when LaHue v. Briscoe was decided (it’s relevant to the Landis case) and that the outcome might be different today. Winston says that that’s no reason to grant cert, and Dowling says: “No, Chief, you’re right, I guess.” Maybe I’m completely out of the loop on Supreme Court protocol, but that seems odd.

After brief discussion, they take a vote, and only three justices vote to take the case. They need four. But before it can be denied, one of the other justices—Justice Swindon—asks for another week to consider his vote—he says he may want to vote yes, but he’s not sure. So they table it.

Justice Swindon, typical for a swing voter, suddenly became very popular. Rose, Stauffer, Dowling, Krause, and the Chief Justice each called and made appointments with his secretary for visits in the next three working days.

He listened politely, even intently, to their arguments, but was noncommittal at the end of each conversation.

Stephen tries to talk to Swindon’s clerks to figure out what Swindon is thinking, but he’s unsuccessful in his attempt. The meeting when the case will come up again arrives, and Swindon says he’s going to vote no. But just as cert is about to be denied, this happens.

“OK. Cert denied will be the order,” the Chief Justice said, smiling.

“Chief?” said Justice Gilbert, one of the two women justices. “I heard about all the meetings you all were having with Justice Swindon, and I got intrigued with what all the fuss was about. So I went back and studied the case with interest. I’m going to vote yes. So I guess that means ‘Cert granted’?”

Stephen finds out immediately and wants to call Donna, but no one is allowed to announce this until the following Monday at 10am (this meeting was held on a Friday).

Any breach of security, if discovered, would cost him his job and brand him for life. He wanted to help, but Corliss wasn’t worth the risk. And he had an interesting evening planned with the redhead from the Senate.

I’m going to hold everyone’s reactions until next week, but I want to pause here to consider these three sentences. Stephen decides not to tell Donna ahead of time about the cert decision, because the risk is too great, but he’s already risked a lot to help her—he would probably be fired by Justice Rose if Rose knew he’d intentionally tried to keep him from choosing the case because the case involved his one-time fiancé. But he might also get in deeper ethical trouble, depending on what the rules are for things of that sort.

But it’s not just Stephen who has been willing to play fast and loose with ethics. Peter pursued Gwen while being her lawyer—her charity lawyer, no less. Lawyers are not supposed to pursue their clients romantically, especially when those clients are dependent on them the way Gwen was (she couldn’t afford another lawyer). Once Gordon died Peter regretted that he’d pursued Gwen only because he did so while her ex-husband was alive and not because he’d done so as her lawyer.

What’s troubling here is that you can’t use adherence to ethical guidelines to sort the good guys from the bad guys—and it goes further than just Peter and Stephen. Donna strip-searched a screaming Casey and decided to open a case to get back at Gwen for calling her a witch and a Nazi. But Gwen packed her bags, donned dark glasses, and staked out the foster family’s home intent on kidnapping Casey and going on the lam. That would have been a most unhealthy childhood for Casey, growing up in hiding.

In the end, this book doesn’t really have good guys and bad guys. It has a mottly collection of ethically compromised individuals with deep flaws. Ordinarily, I’d say that makes for good writing. Books with unsullied good guys and unquestioningly bad guys tend to read as too simplistic. Books where every character is deeply flawed, while still having various good points, are fascinating. The trouble is that that’s not what Farris thinks he’s writing. Oh sure, Farris thinks he’s written Peter as flawed, but he’s got what’s a flaw and what’s not all mixed up.

The problem isn’t that Farris pursued Gwen while Gordon was still alive, it’s that he pursued her when he’s her lawyer. He also insisted on keeping the case and arguing it even though he knew he was not a Constitutional lawyer—a mistake that may cost him this case, unless he can convince the Supreme Court that several new arguments—arguments he should have been making from the beginning—are not actually new arguments. Farris has Peter go so far as to wonder whether he committed malpractice before having his mentor character assure him that no, he did not.

Why has no one asked Peter why he didn’t pass the case on to someone more experienced? Why has no one ever queried whether he decided to keep the case even though he knew he wasn’t well versed in this area of law simply because he wanted to stay in Gwen’s life? And how is that really that different from Bill Walinski throwing the initial hearing so that he could carry on as Gwen’s lawyer and get in her pants?

I’ll leave you to muse on that and make predictions about how Donna is going to respond when Stephen calls her on Monday after the news is released.

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