Features – NYU Law Magazine https://blogs.law.nyu.edu/magazine The magazine for NYU School of Law Mon, 21 Sep 2015 20:40:09 +0000 en-US hourly 1 https://wordpress.org/?v=6.5.3 Closing Statements https://blogs.law.nyu.edu/magazine/2015/closing-statements-bryan-stevenson/ https://blogs.law.nyu.edu/magazine/2015/closing-statements-bryan-stevenson/#respond Fri, 21 Aug 2015 14:24:49 +0000 http://blogs.law.nyu.edu/magazine/?p=9470

“Bryan Stevenson may, indeed, be America’s Mandela. For decades he has fought judges, prosecutors, and police on behalf of those who are impoverished, black, or both.”
Nicholas Kristof, New York Times

 

President Barack Obama has appointed Stevenson to 2 new initiatives: the Task Force on 21st Century Policing (along with Constance Rice ’84) and My Brother’s Keeper Alliance, a nonprofit designed to help boys and young men of color.

 

Kudos for Stevenson’s 2014 book,
Just Mercy:

2015 Carnegie Medal for Excellence in Nonfiction

100 Notable Books of 2014, New York Times

5 Most Important Books of 2014, Esquire

Top 10 Nonfiction Books of 2014, Time

Outstanding Literary Work in Nonfiction, 46th NAACP Image Awards

 

“A brilliant lawyer representing America’s conscience on a mission to guarantee equal justice for all.”
Desmond Tutu on Stevenson,
Vanity Fair

The Equal Justice Initiative documented 3,595 lynchings in 12 Southern states between 1877 and 1950.
From the EJI report Lynching in America: Confronting the Legacy of Racial Terror

 

“Yet as we cringe at the hideous acts of terror being committed elsewhere today, it’s as essential as it is painful to remember what we ourselves were once capable of.”
Carl Hiaasen, Miami Herald, on the value of Stevenson’s Equal Justice Initiative lynching report

 

“I remember specifically that [my last lawyer] told me he was trying to get me life without. And I told him, ‘Get that for someone that is guilty. I’m innocent.’ I need someone that would believe in me and would fight for my life as hard as they could, and that is when Mr. Stevenson came in.”
Anthony Ray Hinton, Stevenson’s client who was exonerated in April after nearly 30 years on death row

 

In April, Time magazine named Stevenson to its 100 Most Influential People of 2015 list in the Pioneer category.

 

 

Related Links

“Bryan Stevenson on justice, and mercy”
NYU Law website, 10/27/14

“Slavery to Mass Incarceration” (Video)
Equal Justice Initiative, 7/7/15

All 2015 Features

2015 Home

]]>
https://blogs.law.nyu.edu/magazine/2015/closing-statements-bryan-stevenson/feed/ 0
Going Global https://blogs.law.nyu.edu/magazine/2015/going-global/ https://blogs.law.nyu.edu/magazine/2015/going-global/#respond Mon, 17 Aug 2015 13:10:27 +0000 http://blogs.law.nyu.edu/magazine/?p=8215 The year was 1993.

Outgoing President George H.W. Bush and Russian Federation President Boris Yeltsin signed a nuclear disarmament treaty. A new US president, Bill Clinton, forged the North American Free Trade Agreement. The European Union and something called the World Wide Web were born—heralds of international cooperation in commerce, science, transportation, finance, communications, and human rights. Economists and government leaders began using a new term to describe a nascent world of interdependent nations: “globalization.”

John Sexton

John Sexton

At the same time, a radical mission expansion at New York University School of Law was about to occur. In the summer of ’93, John Sexton, then dean of the Law School, began discussions with colleagues about an idea both brash and logical, namely, bringing the whole world of jurisprudence to Washington Square.

The result is today’s Hauser Global Law School Program, launched in the fall of 1995 as something completely different. Rather than the study of international law, NYU Law would have an international program for the study of law. “The creation of the Hauser Global Law School Program made a statement that the community of legal scholars ought to be truly global in scope, and without simultaneously setting out any sort of imperialistic agenda,” says Kevin Davis, Beller Family Professor of Business Law and since 2012 vice dean for global affairs.

The dean of NYU Law, Trevor Morrison, who arrived in 2013, concurs: “NYU Law embarked on this ambitious path to become a global law school following a bold and well-conceived plan. What distinguishes this school and enables its success time and again is the capacity of our faculty and students to embrace and incorporate new ideas. Here, it was nothing less than reconceiving how a US-based law school could execute a truly global agenda.”

The program, says Sexton, “lets us think of law in an ecumenical way by bringing together scholars from all over, by creating a world network. If there weren’t such a program, the forces of nativism could overwhelm us.”

Rita Hauser

Rita Hauser

Sexton’s nascent ambition to transform the Law School was encouraged by alumna Rita Hauser and Norman Dorsen, Frederick I. and Grace A. Stokes Professor of Law.

“I thought American law students were extremely parochial at that time,” says Hauser, former ambassador to the United Nations Commission on Human Rights who served both George W. Bush and Barack Obama as a member of the President’s Intelligence Advisory Board. “For them, American law was the be all and end all. Law schools were shortchanging their students. We had to think of a different approach.”

Sexton and Hauser approached Dorsen to take charge of the idea. Although Dorsen is known for his scholarship in US constitutional law and civil rights, he had international experience as a lecturer and had participated in human rights missions to Egypt, Northern Ireland, and the Philippines. Sexton remembers telling Dorsen, “Norman, you’re a world figure of great stature. The whole purpose here is that there are no boundaries. This is a good concept, and you should be its leader.”

Dorsen accepted the challenge, which he defined as, “How do you find a faculty to become part of a program they never heard of?” Established with an initial $6 million donation from Rita and Gustave Hauser LLM ’57, the program, then called the Global Law School Program, brought foreign faculty, postdoctoral scholars, and postgraduate law students to NYU each year to co-teach and research with their American counterparts—with cross-cultural benefits for all.

Norman Dorsen

Norman Dorsen

Dorsen, who served the Global Law School Program as its founding director until 2002, now says, “We plotted out this whole thing. And what happened? It worked.” The first class of eight global faculty recruited by Dorsen included Sir John Baker, then-dean of faculty at the University of Cambridge and an English legal historian; Justice Menachem Elon of the Israeli Supreme Court; and Ambassador Hisashi Owada, Japan’s then permanent representative to the United Nations. Over the last three decades, the global faculty has comprised Giuliano Amato, former prime minister of Italy; Catherine O’Regan, former justice of the Constitutional Court of South Africa; Dieter Grimm, former judge of the Federal Constitutional Court of Germany; and Dorit Beinisch, former president of the Supreme Court of Israel. Several current full-time members of the faculty began as global faculty as well: Philip Alston, John Norton Pomeroy Professor of Law; Professor Franco Ferrari, director of the Center for Transnational Litigation, Arbitration, and Commercial Law; David Garland, Arthur T. Vanderbilt Professor of Law; Moshe Halbertal, Gruss Professor of Law; and Gráinne de Búrca, Florence Ellinwood Allen Professor of Law, who is the current faculty director of the Hauser Global Law School Program.

The program encompasses more than faculty: it also includes 10 to 20 scholarships for foreign lawyers to pursue their LLM degrees; fellowships for academics, government officers, and lawyers from abroad; and a distinguished global fellows rotation of two-week visits to NYU Law.

[SIDEBAR: One for All: The Hauser 20th Anniversary]

In 2002, the Hausers made an additional $5 million donation and the program was renamed the Hauser Global Law School Program. University Professor Joseph Weiler, Joseph Straus Professor of Law, and University Professor Richard Stewart, John Edward Sexton Professor of Law, took the Hauser program into its second decade.

Weiler, an expert on international law and the European Union who is currently on leave to serve as president of the European University Institute in Florence, Italy, focused his efforts on orienting the program more prominently toward scholarship and the nurturing of young international scholars. He launched the Global Working Paper Series, beefed up the LLM program for overseas students, and achieved full funding for a JSD program.

When he became faculty director of the Hauser program in 2007, Stewart, now faculty director of the Frank J. Guarini Center on Environmental, Energy, and Land Use Law, focused on creating a bridge between developed and developing nations by forging partnerships with universities predominantly in the Southern Hemisphere. Stewart and Benedict Kingsbury, Murry and Ida Becker Professor of Law, are credited with defining the field of global administrative law and, through this, developed a large network of legal scholars and practitioners to tap from across the globe.

De Búrca became director of the Hauser program in 2013. A graduate of King’s Inns and University College Dublin and an expert in European Union law, she was one of the youngest fellows appointed to Oxford University and one of the first female law professors at the European University Institute. In 2005, she was appointed a Hauser Global Visiting Professor; six years later she joined NYU Law’s permanent faculty.

“We increase our network year by year,” says de Búrca. “It’s a flow, an interchange. We’re creating lifelong associations in a way that no other US law school does.”

Going forward, she adds, she will forge relationships in places where the program hasn’t yet reached, such as parts of Africa.

[SIDEBAR: Inaugural Conference on the Bernstein Institute Focuses on Inequality and Discrimination]

A lot has changed in the world since 1993. Then, Harvard’s law school had an elective international curriculum that was fading through faculty attrition, says Rita Hauser, who began her legal education there, but ultimately received her LLB from NYU Law. “But when NYU got going with a global program, it was an inspiration to Harvard,” she adds. “Now they require international studies. And now every law school of consequence has a program of comparative, global, international law.”

Looking at law from a global perspective, says Vice Dean Davis, transcends the notion of studying “international law,” with its traditional focus on regulating state behavior, such as in the laws of war or the law of the sea. It goes beyond comparing US domestic law with foreign regimes as well. “In my own work on anticorruption law,” says Davis, “I mix it all up—international, comparative, domestic. It’s become artificial to separate them.”

The global initiative at NYU Law has expanded its dimensions beyond the Hauser program. After two decades of the program’s inviting global faculty, fellows, and students to Washington Square, NYU Law is completing the circle. The new phase of the global initiative, says Davis, is “taking NYU Law faculty and students to the world.”

Two years ago, the Law School established NYU Law Abroad, under which NYU Law students study and work in Buenos Aires, Paris, and Shanghai. “This does not involve just sending students to other schools,” says Davis. “What we’ve actually done is hired our own faculty abroad and developed our own approach.” In Spring 2015, 50 students in their last semester participated, many of them supported by the Public Interest Law Center.

Taking stock of the Law School’s global initiatives now, Davis says this: “With a substantial proportion of our faculty and students hailing from overseas, a steady stream of faculty and scholars visiting from other countries, as well as students and alumni studying and working around the world, our teaching, perspectives, and outlook are becoming truly global.”

—Thomas Adcock is a freelance writer in New York City.

All 2015 Features

2015 Home

]]>
https://blogs.law.nyu.edu/magazine/2015/going-global/feed/ 0
Pros in Con https://blogs.law.nyu.edu/magazine/2015/pros-in-con/ https://blogs.law.nyu.edu/magazine/2015/pros-in-con/#respond Mon, 17 Aug 2015 13:05:06 +0000 http://blogs.law.nyu.edu/magazine/?p=8220 Constitutional law grapples with some of our most difficult—and consequential—legal, political, and social questions. The range and scope of these questions are extraordinary: individual rights; federalism and separation of powers; the limits of popular sovereignty; race and class; wartime exigencies; and voting, among others.

These questions sweep broadly and intersect with other substantive legal subjects. Indeed, the traditional law school curriculum incorporates analysis of constitutional doctrine into a number of its core subjects. Property law explores the Takings Clause; administrative law studies constitutional due process obligations; and criminal procedure applies con law—focusing just on the Fourth, Fifth, and Sixth Amendments—to the criminal justice system. Once you look closely, says Professor Samuel Rascoff, you see that “there’s con law lurking everywhere.”

In recent years, the doctrinal and methodological boundaries of con law scholarship have expanded. Today’s scholars examine constitutional issues by way of traditional doctrinal methods of analysis as well as novel interdisciplinary ones that frequently employ methods of analysis from related fields such as political science, economics, history, and philosophy. “At NYU, we come at constitutional questions from a remarkably diverse range of perspectives,” says Barry Friedman, Jacob D. Fuchsberg Professor of Law.

ConLaw_ButtonCon law scholarship now accounts for more than a dozen distinct legal specialties at NYU. Some of these topics are completely new, while others would be familiar to a law student who matriculated decades ago—although contemporary research has pushed even the traditional fields in new directions.

Take, for example, property rights. Traditionally, scholars analyzed case law and related materials to determine whether a particular action constituted a taking or implicated a regulatory state issue. Contemporary scholarship goes further. In addition to analyzing doctrine, scholars today may incorporate economic and social science analysis to study “the incentive effects of government takings on property owners and investment” and how it might affect “the behavior and decision-making of government officials,” says Daryl Levinson, vice dean and David Boies Professor of Law. Similarly, the study of the separation of powers between the president and Congress now incorporates tools from political science. Rather than relying solely on traditional doctrine—the text of the Constitution and relevant precedent—scholars in this field now also understand that the checks and balances between these two branches are profoundly affected by political parties, in particular when one party controls both branches. Modern scholarship in con law, explains Levinson, considers “the problems that arise in the real world.”

Wheel of Rights

Click to view the full-size image.

The fact that President Obama had granted fewer pardons in his first term than any president since John Adams did not pass unnoticed by Rachel Barkow, Segal Family Professor of Regulatory Law and Policy (though she applauds his more robust clemency record in his second term). While clemency is enshrined in Article II of the Constitution as a core executive power, it is generally underused and applied arbitrarily. Barkow is bringing some discipline to the process by reimagining it as a constitutional authority to oversee federal prosecutors and correct disparities among them in how they charge cases. “There are no individual remedies available for disparities among federal prosecutors, and oftentimes clemency is the only corrective for mandatory sentencing laws that are overbroad,” says Barkow. “Clemency is a needed corrective on the criminal justice system.”

ConLaw_diverse-perspectivesA critical problem with clemency, says Barkow, an expert in administrative and criminal law, lies in the institutional design of the process. The Department of Justice, as the agency that both prosecutes a case and then receives a request for clemency in the same case, has an inherent conflict of interest, she says: “Every request for clemency is at some level a criticism of the DOJ’s decision to prosecute in the first place.” Barkow, who serves on the US Sentencing Commission, advocates establishing a bipartisan commission independent of the DOJ that would make pardon recommendations to the president.

Not all con law specialties track traditional legal subjects. Events within the past 20 years have prompted scholars to develop new areas of inquiry. Three such areas stand out at NYU Law.

The law of democracy studies “the process of organizing democratic elections” and “the structures of democratic governance,” says Richard Pildes, Sudler Family Professor of Constitutional Law. Pildes co-founded the field in the mid-’90s with Samuel Issacharoff, Bonnie and Richard Reiss Professor of Constitutional Law, and Stanford Law Professor Pamela Karlan; the trio co-authored the first Law of Democracy casebook in 1998. They were motivated, in part, by then-current events, both foreign and domestic. Internationally, more new democracies were formed in the 1990s than in any comparable period, and at home the Supreme Court decided an important series of cases dealing with democracy-related questions about redistricting, term limits, and campaign finance.

These issues “emanated from the same foundational set of questions,” Pildes says, and the law of democracy “brought these issues together to examine them in a systemic way.” The field’s roots in real-life concerns kept it focused on how the institutions of governance actually functioned; scholars employed empirical tools from political science “to bring realism and the understanding of consequences to laws that regulate government processes and actors,” Pildes explains.

EnumerationsThe brand-new specialty of global constitutionalism “would have been unthinkable prior to the ’90s,” says Mattias Kumm, Inge Rennert Professor of Law. It was during the ’90s that scholars first developed the precursor field of comparative con law—which compared and contrasted national constitutions—and from that scholarship emerged a new idea: “There were so many similar structural starting points” across “a range of constitutions governing liberal democracies” that, Kumm says, he and others began to “think of the shared principles” of human rights, democracy, and rule of law as part of a “mutually supportive and complementary” transnational enterprise.

As political philosophies go, this was quite radical: Orthodox con law theory states that public laws are constitutionally legitimate if enacted by democratic systems operating through the sovereign state. The global constitutionalist idea Kumm helped refine held that national laws that span the national-international divide (for instance, climate change policy) cannot be legitimated by a single national polity. Rather, the constitutional legitimacy of such laws requires the integration of national and international legal systems—a topic scholars continue to explore.

The US government’s implementation of counterterrorism policy in the years following the 9/11 attacks transformed national security law. A new wave of scholars shaped by experiences operationalizing counterterror strategies, including Dean Trevor Morrison (former associate White House counsel) and Samuel Rascoff (former director of the NYPD’s intelligence analysis unit), brought a pragmatic, policy-oriented focus to the field. Their analyses of frontier security issues drew on established legal frameworks and scholarly approaches from related disciplines; Rascoff describes his most recent article, concerning presidential oversight of the intelligence state, as “20-year-old political science and administrative law insight as applied to five-minute-old and into-the-future problems.” It is these kinds of inventive scholarly mash-ups that are key to bringing conceptual clarity to a field, Rascoff says, “dominated by a very-short-term focus on managing disaster and scandal, and its aftermath.”

Even the traditional is being studied in untraditional ways. Amy Adler, Emily Kempin Professor of Law, has looked to biblical times to explain why she thinks the First Amendment offers greater protection to words than to images (textual over pictorial pornography, for example). Her scholarship finds this preference rooted in ancient prohibitions on graven images and historical iconoclasm, and she concludes that jurisprudential assumptions about visuality have biblical rather than constitutional roots. Increasingly, Adler notes, this approach is in tension with contemporary culture, in which the image is emerging as the dominant mode of expression. “We—and particularly our students—live in an Instagram/Snapchat world,” she says, “one that First Amendment law has little to say about and is ill-prepared to address. My scholarship seeks to better equip scholars and jurists to address this new reality.”

ConLaw_real-world-credentialsThen there is the specialty of constitutional history, which has its own interesting history. Established in the late 19th century, the subject was out of favor for much of the next hundred years. But in the 1980s, high-profile legal conservatives started to discuss the “original intent” of the nation’s founders and proposed that the Supreme Court adopt “originalism” when interpreting the Constitution. Since then, a generation of historians—most of whom hold both law degrees and PhDs in history—have sought deeper, more nuanced, and more rigorous answers to questions of historical constitutional meaning.

Constitutional history first makes clear that “the constitutional project isn’t static,” says Daniel Hulsebosch, Charles Seligson Professor of Law. The story of the original Constitution and its modification— from the founding to adoption of the amendments through more recent changes to informal but important government practices—exposes “the gap between the simple framework of the Constitution and the complicated state we have now,” notes Hulsebosch. Contemporary constitutional historians scrutinize key Supreme Court opinions and the historical claims made by the justices in those decisions. The court’s opinions are often written in such a way as to make it appear that the justices are “restating received conventional wisdom,” explains Hulsebosch. In many cases, he adds, the justices are actually “making an argument about…what the Constitution should mean.”

Whether one adheres to the living Constitution or the originalist interpretation of it, the field of constitutional law is inarguably alive and growing. “NYU has a group of imaginative, innovative con law scholars working on some of the most vexing issues of the day,” says Larry Kramer, president of the William and Flora Hewlett Foundation and former dean of Stanford Law School. Kramer, a renowned con law scholar who is a former associate dean for research and academics at NYU Law, believes the Law School’s scholars will continue to be a force in the field: “They have already helped shape how we all think about con law in a variety of areas and ways, and I expect them to continue to do so.”

—Craig Winters ’07 is the author of The Big Timers, a forthcoming book about the mutual fund scandal of 2003.

Related Link

“NYU Law faculty contribute to new Interactive Constitution”
NYU Law website, 9/21/15

All 2015 Features

2015 Home

]]>
https://blogs.law.nyu.edu/magazine/2015/pros-in-con/feed/ 0
Straddling the Thin Blue Line https://blogs.law.nyu.edu/magazine/2015/straddling-the-thin-blue-line/ https://blogs.law.nyu.edu/magazine/2015/straddling-the-thin-blue-line/#respond Mon, 17 Aug 2015 13:00:42 +0000 http://blogs.law.nyu.edu/magazine/?p=8212 As a prosecutor for the Eastern District of New York in 1999, Kenneth Thompson ’92 was working on one of the most widely publicized cases of that time. A group of white New York City police officers had been charged in connection with the brutal beating and torture of a handcuffed black Haitian immigrant, Abner Louima, in a precinct bathroom. While Thompson was the most junior member of the trial team, senior prosecutors Alan Vinegrad ’84 (now a partner at Covington & Burling) and Loretta Lynch (now US attorney general) selected him to give the opening statement. “He had worked on [the case] since the beginning,” says Vinegrad. “Loretta and I thought that he deserved it and that he’d do a great job.”

The evidence offered plenty of material for Thompson to deliver an incendiary statement. Instead, the transcript shows a powerful but restrained presentation, in which his most dramatic declaration was, “Abner Louima was tortured in that bathroom, and his torture was cruel and it was simply inhumane.” In an era before cell phone technology made images of police brutality readily available, Thompson presented an unvarnished description of the violent assault. As the evidence mounted against the lead defendant, Justin Volpe, he changed his plea to guilty midway through the trial. He is serving a 30-year sentence in federal prison.

Today, Thompson is the Brooklyn district attorney, leading the third-largest DA’s office in the nation after those in the cities of Los Angeles and Chicago.

While Louima’s assault occurred nearly two decades ago, the case still encapsulates a complex reality that Thompson faces as a law enforcer, shaped by both personal and professional experience. The son of a police officer and graduate of John Jay College of Criminal Justice, Thompson has dedicated much of his career to crime fighting. As many initiatives of his current office demonstrate, his core mission is the same as that of the cop on the beat: getting the bad guys.

But through the Louima case and in other roles—including his current position—Thompson has also investigated ways in which law enforcers themselves may misstep, sometimes egregiously, and it has at times been his job to call them to account. It speaks to Thompson’s view of justice that he has made correcting past miscarriages of it—wrongful convictions—one of the top priorities for his office.

KEY MOMENTS: 1. NYU Law graduation, 1992; 2. NYU Law Picturebook, 1989-1990; 3. as a child, circa 1972; 4. Officer Clara Thompson at the precinct, circa 1985; and 5. With Ronald Noble, 1992

KEY MOMENTS: 1. NYU Law graduation, 1992; 2. NYU Law Picturebook, 1989-1990; 3. as a child, circa 1972; 4. Officer Clara Thompson at the precinct, circa 1985; and 5. With Ronald Noble, 1992

The charged mixture of race and police brutality in the Louima case also resonates today, as a series of police killings of African Americans has made headlines and provoked public outrage. Against this backdrop, Thompson’s dual role is cast in sharp relief. From Ferguson to Baltimore to New York, there is an urgent need for effective policing in minority communities heavily affected by crime. Every day, more than 500 prosecutors in Thompson’s office work hand in glove with New York City police officers to pursue the broad array of crimes that are the bread and butter of any prosecutor’s office in a major urban area. But in these same communities, some law enforcement tactics have severely eroded trust among the people the police are sworn to protect, and community members might see a DA’s office as both part of the problem and part of a potential solution.

“We have to do better in terms of the partnership that law enforcement has to have with the community,” Thompson says. “Thousands of people have been marching, including over the Brooklyn Bridge, and some of them have lost confidence in the criminal justice system, so we have to do more to improve that.”

Prosecutors and police chiefs around the country face the same challenge. As Brooklyn’s first African American DA, Thompson may face even greater pressure to restore trust between minority communities and the police. When asked about it, Thompson says that he “gets” the question, but deflects, saying he is the district attorney for all of racially diverse Brooklyn: “It is important for people in all communities to feel that law enforcement is there for them, not there to target them.”

KEY MOMENTS: 6. Courtroom sketch of Thompson as assistant US attorney in 1999, directing Patrick Antoine on the stand, with defendant Justin Volpe in the foreground and Judge Eugene Nickerson of the US District Court for the Eastern District of New York presiding; and 7. at Bronx Supreme Court in 2012, announcing a settlement between his client Nafissatou Diallo and Dominique Strauss-Kahn

KEY MOMENTS: 6. Courtroom sketch of Thompson as assistant US attorney in 1999, directing Patrick Antoine on the stand, with defendant Justin Volpe in the foreground and Judge Eugene Nickerson of the US District Court for the Eastern District of New York presiding; and 7. at Bronx Supreme Court in 2012, announcing a settlement between his client Nafissatou Diallo and Dominique Strauss-Kahn

Sitting in his office just blocks from the Brooklyn Bridge, Thompson exudes self-assurance. Tall and broad-shouldered, he dominates the expansive 19th-floor room from behind his desk. More than his physical presence, however, it is his baritone voice that draws the listener in. He speaks deliberately, with the thoughtful cadence of someone accustomed to choosing his words carefully. While he has the polish of a veteran politician, he has been in his first elected office for less than two years.

His journey to his current position began in a public housing apartment in East Harlem. The portrait of a young Thompson that friends, family, and colleagues paint is one of a serious person and an introvert who eschewed sports and hanging out in his neighborhood, preferring to read. His mother, says Thompson, was “the most important person who had influence on me.” One of the city’s first women to serve as a patrol officer, Clara Thompson had determination and a will to “always try to do something better,” as she puts it, qualities that transformed her family’s life.

Clara had worked as a nurse’s aide and in the post office when she took the newly gender-neutral civil service exam in the 1970s. She was assigned to a beat in the Bronx when Thompson was seven, and his memories of the era are vivid. She would put on her uniform at home, because female officers were such a novelty that there were no facilities for them at the precinct. Heading out to work each morning from the Senator Robert F. Wagner Houses in a police uniform was not for the faint of heart. “I don’t think people understand the weight of her decision, in ’73, to become a police officer,” Thompson says. “A black woman, living in the projects with three kids by herself; it was extraordinary.” She believed in herself, and her son was inspired. “If you want to trace what motivated me to go into law enforcement,” says Thompson, “it was my mother.”

Clara’s new career gave him a level of comfort with law enforcement alien to many other African American boys from the projects. “I grew up in the precinct,” says Thompson. Clara’s job also elevated the family’s finances. In 1974, she moved her family to the middle-class development of Co-op City in the northern reaches of the Bronx.

Thompson became the Daily News paperboy for his 26-story building and got to know many of his neighbors. He speaks fondly about growing up there. “It was a beautiful community for us,” Thompson says. The radical change in environment fostered the development of the studious and serious boy. “When all the other kids would be hanging out behind the building, he was never one of those kids,” recalls his mother. “He was always doing his homework, being by himself.”

Planning to follow his mother’s path, Thompson took the police entrance exam when he was 18. He scored 97 percent, in the top tier of thousands of applicants, but, since he wouldn’t be eligible to join the force until he turned 20, he began looking for other ways to pursue law enforcement. In 1985, he enrolled at John Jay College of Criminal Justice, a part of the City University of New York, and after graduating magna cum laude, he entered NYU School of Law in 1989.

Thompson on his motivationDuring his third year of law school, he found the path he was seeking. An active member of the Black Allied Law Students Association, Thompson recalls that the arrival of Ronald Noble created a stir, particularly among the law students of color. Noble, who would go on to serve three terms as secretary general of Interpol—the first American to hold that position—was then a high-profile federal prosecutor who had been the president of his class at Stanford Law. Thompson signed up for Noble’s Evidence class, where he says he was “mesmerized” as Noble peppered his lectures with examples from his days as an assistant US attorney in Philadelphia. “He was so impressive and his work was so amazing; I knew from that point that I wanted to be a prosecutor,” Thompson says. “I wanted to be like him.”

In turn, Thompson made an impression on his professor, who recalls a focused and mature young man whose formal demeanor set him apart. Noble once asked Thompson whether he had a job to go to after class, because he was the only student who came to his class in a dress shirt, dress slacks, and a jacket. Thompson’s earnest answer was that he dressed to convey how seriously he took the job of being a law student.

The two got to know each other better when Thompson was selected to be one of two students on the admissions committee, on which Noble also served. It was during this time, Thompson recalls, that he told Noble of his intention to become a prosecutor and asked for advice about courses, internships, and jobs.

Through Noble, Thompson landed his first full-time job focused on criminal justice. Notably, it involved investigating a law enforcement operation that had gone awry. In 1993, the Clinton administration tapped Noble to review the siege of and assault on the Branch Davidian compound by federal agents in Waco, Texas, earlier that year. The operation had ended disastrously with the deaths of scores of people, including several federal agents. Noble—then assistant secretary of the US Treasury with oversight of agencies including the Bureau of Alcohol, Tobacco, and Firearms—reached out to his young protégé, and Thompson obtained permission for an early conclusion of his clerkship with Federal District Judge Benjamin Gibson in Michigan to join the investigative team in Washington as Noble’s special assistant. “Ken was the youngest guy on the team and the least experienced, but he established himself by being the hardest worker, with no task too small or beneath him,” says Noble. Thompson became the go-to fact expert. “You could ask him anything about agent X or Y, what he did, or document X or Y, and he would know it,” Noble recalls. The investigative report, delivered in 1993, was sharply critical of many aspects of the Waco operation.

Thompson then spent five years as an assistant US attorney in Brooklyn, working on an array of investigations and prosecutions of bank robbery, murder-for-hire, bribery, embezzlement, kidnapping, and other offenses, in addition to the Louima case. That was followed by 14 years in private practice, most of it at a firm that he and Douglas Wigdor formed to represent individuals in discrimination and civil rights cases. Here, too, Thompson handled cases that drew a media spotlight. One of their firm’s first cases was a 2003 lawsuit against Macy’s, alleging that those operating its private policing system engaged in racial profiling of suspected shoplifters. The suit claimed that Macy’s security personnel singled out Sharon Simmons-Thomas because she was black and detained her in a holding cell, where she was handcuffed and pressured to make a false confession, even though she had receipts for the items she bought. While the case settled for an undisclosed amount, it led to an investigation by Eliot Spitzer, then New York’s attorney general. Macy’s settled a complaint filed by the state for $600,000 and agreed to reform its in-store security practices.

No case drew Thompson more attention—and criticism—than his 2011 representation of hotel maid Nafissatou Diallo in her civil suit growing out of accusations of sexual assault by the then-head of the International Monetary Fund, Dominique Strauss-Kahn. Thompson stoked media interest in the case in ways that, critics said, ultimately undermined the Manhattan DA’s efforts to hold Strauss-Kahn accountable. Diallo settled her suit, and Thompson makes no apologies for how he handled the case, although he acknowledges that he might have done some things differently. “I had a woman who was in desperate need of a lawyer to protect her interests and who was going against one of the most powerful men in the world at the time,” he says. “She needed justice, and I fought to get her justice.”

Thompson had first introduced Diallo to the media at a highly orchestrated press conference at the Christian Cultural Center, a Brooklyn megachurch where Thompson has worshiped for the past two decades. Accompanying him were local politicians as well as the church’s pastor, Reverend A.R. Bernard, something of a political kingmaker (the pastor’s endorsement, reported the New York Times, was the first that Michael Bloomberg announced in his bid for a third term as New York City mayor). In that spectacle, some saw the beginnings of a campaign.

Thompson laughs at the idea that someone would take such a difficult case to set up a run for Brooklyn DA. His wife, Lu- Shawn, whom he met when they were both students at John Jay, says he had over the years occasionally talked about seeking the office. She would brush off the idea, worried that because he is “sensitive,” he would find the intense media coverage too grueling. But the crucible of the Diallo case, she says, changed her views. “They were attacking him pretty bad and it worked out.”

In his first-ever run for office, Thompson took on Charles Hynes, a 23-year incumbent as the Brooklyn DA. Hynes had seen his chances dwindle amid allegations of prosecutorial misconduct, abuse of power, and corruption. Thompson, meanwhile, attracted key backers, such as Brooklyn congressman and fellow NYU Law grad Hakeem Jeffries ’97, whom he had gotten to know when Jeffries interned in the US Attorney’s Office. They had bonded over shared backgrounds and priorities. “We both grew up in rough-and-tumble neighborhoods, and I think that has helped shape our experience and sense of social justice,” says Jeffries. Thompson’s campaign also drew on widespread popular support, including from many of the 37,000 congregants of Bernard’s church and from members of the powerful health care workers union.

Thompson on wrongful conviction workSeveral attorneys who had opposed Thompson in court, including Willis Goldsmith ’72, also got behind him. Goldsmith, a partner at Jones Day in New York, remembers Thompson as the “voice of reason” throughout a contentious 2007 race discrimination case in which Thompson represented a black-owned business contractor against Goldsmith’s client, Verizon. Goldsmith, who won that case, later became friends with Thompson. He not only supported Thompson’s campaign, but also served on his transition committee. Thompson won the November 2013 election with 72 percent of the vote

When he took office in January 2014, Thompson quickly established a shift in tone and priorities. He beefed up resources and support for crime prevention and investigation, including by setting up Brooklyn’s first Crime Strategies Unit to curb high levels of gun violence in troubled neighborhoods. Staffed by senior prosecutors, the unit aims to identify people Thompson calls “the drivers of crime” and keep them off the streets. Unlike the NYPD’s controversial stop-and-frisk policy, the crime strategies approach targets known individuals—often gang members—believed to commit most shootings. “Whenever any of these guys gets arrested anywhere in New York,” says Thompson, “we get an e-mail and our criminal strategies folks spring into action to prepare the folks in intake in terms of what’s the appropriate crime to charge them with.”

The DA’s office is also keeping an eye on the supply side. In an effort to stop the flow of illegal guns into Brooklyn, Thompson and NYPD Commissioner William Bratton announced in April 2014 that, after a seven-month joint investigation, they were bringing a 558-count indictment against six firearms traffickers who were operating an “iron pipeline” from Georgia to Brooklyn.

Thompson also took long overdue steps, such as establishing a Forensic Science Unit. “How do we convict rapists and avoid convicting innocent people if we don’t have a dedicated forensic science unit?” Thompson asks. Another new unit—developed to tackle fraud against immigrants—had its genesis in the regular lunches he has with former Manhattan District Attorney Robert Morgenthau, who had created a similar unit in his borough. Thompson also gave four-percent raises to many of his prosecutors, some of whom were making less than $60,000 after five years as assistant DAs.

Even as he has moved to strengthen the crime-fighting capabilities of his office, Thompson has worked in tandem to check practices that he sees as undermining effective law enforcement, especially in minority communities, and to correct previous injustices. Three months into his term, for example, he alerted the NYPD that his office would no longer prosecute most low-level marijuana possession cases, noting that judges end up dismissing about two-thirds of such cases, and that he could not ignore the racial disparity in these arrests. Mayor Bill de Blasio later announced that the policy would be followed citywide.

During Father’s Day weekend this June, Thompson held the first of several planned Begin Again days, in which those with outstanding arrest warrants for minor infractions, such as drinking in public or being in a park after dark, can clear them through a pop-up legal advocacy and courtroom system in a neighborhood church. According to Thompson’s office, there are about 250,000 such open warrants in Brooklyn that are taxing an overburdened court system. More than 1,000 people arrived at the Emmanuel Baptist Church in Clinton Hill that day, and 670 warrants were cleared.

But the initiative that has brought national attention to Thompson’s commitment to the integrity of the criminal justice system, and not just the pursuit of lawbreakers, is his office’s devotion of enormous resources to the review of suspected wrongful murder convictions. He had campaigned on the issue, promising to rectify past injustices if elected.

Thompson brought in Ronald Sullivan Jr., faculty director of Harvard Law School’s Criminal Justice Institute, to co-lead a renamed and reconceived Conviction Review Unit (CRU), and provided it with a dedicated staff of 10 full-time prosecutors and three investigators. Of the more than 100 cases the unit has identified for review, 37 had been completed as of July 2015, and 13 of those defendants were found to have been wrongfully convicted, some after serving decades in prison. In recent months, Thompson has expanded the original scope of the review beyond murder convictions to include other miscarriages of justice, such as the case of Michael Waithe. Falsely accused and then convicted of burglary nearly 30 years ago, Waithe served 18 months in jail and faced deportation as a result of his conviction when he returned from his eldest daughter’s Barbados wedding in 2011. “That caused me to feel strongly that I can’t limit myself to homicide cases,” Thompson says.

THE THOMPSONS IN 2013: Kenny, Lu-Shawn, Kenneth, and Kennedy.

THE THOMPSONS IN 2013: Kenny, Lu-Shawn, Kenneth, and Kennedy.

All prosecutors have a duty to investigate claims of innocence or wrongful conviction, but in the vast majority of jurisdictions, that responsibility rests on the original prosecutor. The reviews often take a long time and the prosecutors, with full dockets of ongoing cases, don’t have a mandate to prioritize them, says Deborah Gramiccioni, executive director of the NYU Law Center on the Administration of Criminal Law and a former prosecutor. In Thompson’s office, however, the CRU makes recommendations to an independent panel. “Making a dedicated CRU shows that review is a priority of the office and therefore these investigations happen more quickly,” says Gramiccioni.

This streamlined process has been criticized by some involved in the original prosecutions who say they have not been given chances to respond. Such reactions are inevitable, says Samuel Gross, a University of Michigan Law School professor and the editor of the National Registry of Exonerations, a comprehensive online database: “It’s in the nature of this sort of review that some people will get rubbed the wrong way.” The process Thompson has established, says Gross, “is remarkable for the level of openness with which the work has been done.”

For Thompson, the unit’s achievements represent justice at its most fundamental. “The wrongful conviction work is very, very important to what I stand for as a district attorney,” he says. “I’m not interested in freeing murderers into the community, but we cannot allow innocent men, or men who were wrongfully convicted, to be in prisons for murders and other crimes that they did not commit.”

Among the police shootings drawing major headlines during the past year, one was on Thompson’s turf. Akai Gurley, a young African American man, was killed by an officer’s ricocheting bullet in the dark stairwell of an East New York public housing development last November. While a number of other recent high-profile police killings of black men did not lead to indictments, this one did: Thompson’s office has charged Peter Liang with manslaughter. The move was hailed by many as an overdue demonstration that “black lives matter”—a phrase that has gained currency around the country following incidents of police violence.

The public uproar over police use of force—and how to respond when it crosses the line—continues to bring added pressures to Thompson’s job. But even as he grapples with these issues, Lu-Shawn says, her husband remains fundamentally the same person she met years ago, down to the long hours he puts in at work and the music that blares out of his headphones. “That’s how he relaxes,” she says. Thompson acknowledges that he can be “too serious,” but close friends speak of his quick sense of humor and enjoyment of family time. And it is clear that the seriousness with which he has approached each chapter of his life has led him to exactly where he wants to be. From time to time, when Thompson has had a particularly hard day, Lu-Shawn asks him, “Do you like this job?”

The answer, she notes, never changes: “He always says he loves his job.”

—Aisha Labi is a freelance writer in New York City.

All 2015 Features

2015 Home

]]>
https://blogs.law.nyu.edu/magazine/2015/straddling-the-thin-blue-line/feed/ 0