Litigation Section

Our nation is at a crossroads with regard to racial justice issues. Where society and the law will go next is unclear, but significant changes—long overdue—are brewing. This issue of California Litigation focuses on some of these important topics, looking forward, looking back, and examining where we are today. Read more

I have a vivid recollection of the client. He limped into the jail interview room, wincing as he sat on the bench. His face was bruised and swollen. His version of the events stood in stark contrast to the officer’s account in the police report. Similar experiences are shared by most, if not all, seasoned defense attorneys. Defense attorneys have an important duty to investigate in circumstances suggesting law enforcement misconduct. This article addresses the legal means of getting records and information from law enforcement officers’ personnel files. Read more

The greatest generation grew up during the depression and fought in World War II. The greatest of the greatest did all that and battled Jim Crow as well. Read more

Imagine being a teenager; not just the awkward moments, but the moments we live to reminisce about. Now imagine being a teenager arrested, accused, convicted, and sentenced to life imprisonment for a murder you did not commit. That was the reality of Zavion, and Franky, Arturo, Obie, Armando, and countless others. Read more

My grandfather was a well-respected, reasonably successful lawyer in post-colonial India. Lawyers also seem disproportionately likely to lead nation-states, movements, and revolutions, and to transition seamlessly into politics and government. But I didn’t become a lawyer to pay homage to family tradition. Nor did I aspire to lead a movement or rise through the ranks in the public sector. Read more

An essential prerequisite to an impartial jury is that it be drawn from a representative cross-section of the community. Courts at the federal and state level have been grappling with this issue for decades in cases where prospective jurors who were members of a minority group (typically based on race or gender) were removed from venires by peremptory challenges. The law has evolved from allowing attorneys to make peremptory challenges without showing a reason (see Swain v. Alabama (1964) 380 U.S. 202) to adopting a methodology to test whether members of cognizable groups were improperly removed from juries. The process began with two cases. Read more

In view of recent events in our communities and through the nation, we are at an inflection point in our history. It is all too clear that the legacy of past injustices inflicted on African Americans persists powerfully and tragically to this day. Each of us has a duty to recognize there is much unfinished and essential work that must be done to make equality and inclusion an everyday reality for all. Read more

Happenings in the United States were frenzied and chaotic after the Civil War. Besides attending to matters of Reconstruction, the country was engaged in wars with Native Americans, a transcontinental railroad was being built, and record numbers of people were immigrating to the Western Territories. Many of the bills Congress passed to aid the freedmen were vetoed by Lincoln’s successor, President Andrew Johnson. Sometimes Congress was able to override those vetoes, but not always. Eventually Johnson was impeached, surviving conviction in the Senate by one vote. Somewhat amazingly, it was amidst such turmoil that the post-Civil War constitutional amendments were written by congressional supporters of recently freed slaves. Read more

America has always rested upon the proposition that "all [persons] are created equal." Judicial analytics have a crucial role to play in redeeming that promise by showing the degree to which extra-legal factors such as judges’ personal values, ideology, life experiences, race, and gender impact decision making — a study which has never been more important than now, with the fight for racial and gender equality dominating the news this year. Read more

Like me, some 46 million Americans —roughly 20% of the adult population — trace their roots to settlers under the Homestead Act. Like my family, the vast majority of homesteaders were White. (Keri Leigh Merritt, Masterless Men: Poor Whites, Slavery and Capitalism in the Deep South (2017) p. 38.) As an heir to homestead land, I cannot ignore the role race has played in my family’s generational upward mobility. My immigrant forbearers established their citizenship while they perfected their claims by living on and cultivating their 160-acre parcels. As they did so, Native Americans, who had inhabited the lands for millennia, continued to be dispossessed. And emancipated African Americans, who had labored over two-and-a-half centuries to bring land in the American South into productivity, remained destitute. Read more