Suffolk Journal of Trial & Appellate Advocacy

MOOT COURT HONOR BOARD SUFFOLK JOURNAL OF TRIAL & APPELLATE ADVOCACY Volume XXV 2019-2020

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Law School Faculty Marie Ashe, Research Professor of Law R. Lisle Baker, B.A., L.L.B., Professor of Law Andrew Beckerman-Rodau, B.S., J.D., LL.M., Professor of Law and Co-Director, IP Concentration William L. Berman, B.A., J.D., Clinical Professor of Law Carter G. Bishop, B.S., M.B.A., J.D., LL.M., Professor of Law Karen Blum, B.A., J.D., LL.M., Professor of Law Eric Blumenson, Research Professor of Law Sarah Boonin, B.A., J.D., Director of Clinical Programs and Clinical Professor of Law Erin Braatz, Assistant Professor of Law Richard L. Buckingham, B.A., J.D., M.L.I.S., Director of Law Library and Associate Professor of Law Christine Butler, Practitioner in Residence Rosanna Cavallaro, A.B., J.D., Professor of Law Gerard Clark, B.A., J.D., Professor of Law David Colarusso, Clinical Fellow and Director of the Legal Innovation and Technology Lab Meredith Conway, B.A., J.D., LL.M., Professor of Law William Corbett, A.B., M.B.A., J.D., LL.M., Director of Tax LLM Program and Professor of Law Rebecca Curtin, A.B., J.D., Ph.D., Assistant Professor of Law Loletta Darden, Assistant Clinical Professor of Law and IPEC Director Sabrina DeFabritiis, B.A., J.D., Professor of Legal Writing Christopher Dearborn, B.A., J.D., Clinical Professor of Law Sara Dillon, B.A., M.A., J.D., Ph.D., Director of International Program and Professor of Law Steven Eisenstat, B.A., M.Ed., J.D., Professor of Law Kathleen C. Engel, Research Professor of Law Valerie C. Epps, Research Professor of Law Bernadette Feeley, B.S., J.D., Clinical Professor of Law Steven Ferrey, B.A., M.A., J.D., Professor of Law Joseph Franco, B.A., M.A., J.D., Professor of Law Nicole Friederichs, Practitioner in Residence Shailini George, B.A., J.D., Professor of Legal Writing Christopher Gibson, B.A., M.P.P., J.D., Director of Business Law and Financial Services Concentration and Professor of Law Joseph Glannon, B.A., M.A.T., J.D., Professor of Law Dwight Golann, B.A., J.D., Professor of Law Ben Golden, Health Law Clinical Fellow Lorie Graham, B.S., J.D., LL.M., Professor of Law and Co-Director, International Law Concentration Janice C. Griffith, B.A., J.D., Professor of Law Leah C. Grinvald, B.A., J.D., Associate Dean for Academic Affairs and Professor of Law Vanessa Hernandez, Juvenile Defender Clinical Fellow Stephen C. Hicks, M.A., LL.B., LL.M., Professor of Law Nadiyah Humber, Housing Discrimination Testing Program, Clinical Fellow John Infranca, B.A., M.T.S., Associate Professor of Law Philip C. Kaplan, B.S., J.D., Associate Professor of Academic Support Maritza Karmely, B.A., J.D., Associate Clinical Professor of Law Bernard V. Keenan, B.A., J.D., LL.M., Professor of Law Rosa Kim, B.A., M.A., J.D., Professor of Legal Writing Catherine LaRaia, Clinical Fellow Renee Landers, A.B., J.D., Director of Health and Biomedical Law Concentration and Professor of Law Jamie Langowski, Housing Discrimination Testing Program, Clinical Fellow Jeffrey Lipshaw, A.B., J.D., Professor of Law James Matthews, Clinical Fellow Stephen Michael McJohn, B.A., J.D., Professor of Law Kim McLaurin, B.S., J.D., Associate Dean of Experiential Learning for the Law School Christina Miller, Assistant Clinical Professor of Law Samantha A. Moppett, B.A., J.D., Associate Director of LPS and Professor of Legal Writing Russell G. Murphy, B.A., J.D., Research Professor of Law Sharmila Murthy, B.S., M.P.A., J.D., Assistant Professor of Law Dyane O’Leary, B.A., J.D., Assistant Professor of Academic Support Bernard M. Ortwein, B.A., J.D., LL.M., Doctor of Laws (hon.), Professor of Law Marc G. Perlin, B.A., J.D., Professor of Law Andrew M. Perlman, B.A., J.D., LL.M., Dean and Professor of Law Richard G. Pizzano, A.B., J.D., Professor of Law Jeffrey J. Pokorak, B.A., J.D., Vice Provost for Faculty and Curriculum and Professor of Law Anthony P. Polito, S.B., J.D., LL.M., Professor of Law Herbert N. Ramy, B.A., J.D., Director of Academic Support Program and Professor of Academic Support Rene Reyes, Assistant Professor of Law Elbert L. Robertson, B.A., M.A., J.D., Professor of Law Marc A. Rodwin, B.A., M.A., J.D., Ph.D., Professor of Law Charles E. Rounds, Jr. B.A., J.D., Professor of Law Michael Rustad, B.A., M.A., J.D., LL.M., Ph.D., Co-Director of IP Concentration and Professor of Law Sarah J. Schendel, Assistant Professor of Academic Support Ilene B. Seidman, B.A., J.D., Professor of Law Ragini Shah, Clinical Professor of Law Patrick Shin, A.B., J.D., Ph.D., Associate Dean for Academic Affairs and Professor of Law Linda Sandstrom Simard, B.S., J.D., Professor of Law Robert H. Smith, A.B., J.D., Professor of Law Elizabeth Z. Stillman, B.A., J.D., Associate Professor of Academic Support Gabriel Teninbaum, B.A., J.D., Associate Professor of Academic Support L. Danielle Tully, Assistant Professor of Legal Writing Kathleen Elliott Vinson, B.A., J.D., Director of Legal Writing, Research and, Written Advocacy Timothy Wilton, A.B., J.D., L.L.M., Professor of Law David Yamada, B.A., M.A., J.D., Director of the New Workplace Institute, Co-Director of Labor and Employment Law and Professor of Law

Professors Emeriti Joseph D. Cronin, A.B., M.A., J.D., Professor of Law, Emeritus Kate Nace Day, B.A., J.D., Professor of Law, Emeritus Victoria J. Dodd, Professor of Law, Emerita Thomas Finn, Professor of Law, Emeritus Diane S. Juliar, B.A., J.D., Professor of Law, Emerita Joseph P. McEttrick, A.B., J.D., M.P.A., Professor of Law, Emeritus Richard M. Perlmutter, A.B., LL.B., Professor of Law, Emeritus David J. Sargent, J.D., LL.D. (Hon.), President Emeritus

Board of Trustees Robert C. Lamb, Jr., Chair Mark E. Sullivan, Vice Chair Nancy Stack, Secretary John L. Brooks, III Kent John Chabotar Jeanette G. Clough Daniel F. Conley Susan M. Connelly Joseph Delisi Maria DiPietro John Fernandez Patricia J. “Trish” Gannon Christine Garvey Ernst Guerrier John F. “Jack” Harrington J. Robert Johnson Patrick F. Jordan, III Dr. Ivana Magovcevic-Liebisch Konstantinos “Kosta” Ligris Stacy Mills Bevilton E.J. Morris The Hon. Amy L. Nechtem Carol Sawyer Parks Susan Rugnetta E. Macey Russell Larry Smith Suffolk University Law School Moot Court Honor Board Suffolk Journal of Trial & Appellate Advocacy 2019-2020

President Editor-in-Chief TIMOTHY RENNIE NICHOLAS MCLAUGHLIN

Vice President Managing Editor JESSICA MEHAYLO DEAN FIOTTO

Chief Competition Executive Editor Director STEPHANIE SADER MARISA AGGANIS Associate Managing Editor Executive Director of STEPHANIE CALDERON Appellate Competitions CAIRIN FAY Associate Executive Editors HELEN HUANG Executive Director of JANE INNIS Trial Competitions SIERRA LOVELY ANNA MCCABE SHAUNI LYNCH HUNTER WILDRICK Associate Director of Competitions Lead Articles Editors PATRICK GENOVESE STEPHEN HARRIS THOMAS STIRRAT AUBREY TRUDEAU

Note Editors CARLOS ARREDONDO DANIELLE PAULSON EMILY SMITH

Case Comment Editors BRITTANY BEGEN JOSEPH DONAHUE RICHARD PIZZANO

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4B EDITOR’S NOTE

Dear Reader:

On behalf of the Suffolk University Law School Moot Court Honor Board, I am proud to present the first Issue in Volume XXV of the Suffolk Journal of Trial & Appellate Advocacy. This Issue contains one lead article and eight student-written pieces, each designed to provide insight and be of practical use to lawyers and judges at the trial and appellate levels.

The lead article, The Use and Abuse of Dogs in the Witness Box, was written by John J. Ensminger, Sherri Minhinnick, James Lawrence Thomas, and Itiel E. Dror. John Ensminger is a member of the New York and United States Supreme Court bars and is the author of Service and Therapy Dogs in American Society and Police and Military Dogs. Sherri Minhinnick is the Director of Operations, canine trainer, and handler at K9 Resources in Kings Mills, Ohio. She served for a time as a limited special deputy with the Warren County Sheriff’s Office in Ohio. Additionally, she holds a Special Investigator License in four states and holds clearance for Class 33 High Grade Explosives with the U.S. Department of Justice. James Lawrence Thomas is a clinical psychologist, neuropsychologist, and the founder of The Brain Clinic in New York City. He has held faculty appointments at New York University School of Medicine, Fordham University, and John Jay College. Itiel E. Dror is a Senior Cognitive Neuroscience researcher at University College London. He researches a variety of issues regarding psychology, bias, and the law and works closely with the judiciary and law enforcement in the U.S., U.K., and other countries.

The Use and Abuse of Dogs in the Witness Box provides an overview of how courts and state legislatures have sought to define the parameters of using dogs to support children and vulnerable adult witnesses testifying in legal proceedings. The authors postulate that while courts have evaluated when individual dogs can be used to assist in testifying, legislatures have restricted the use of dogs in courtrooms to those that have received specified types of training and certification. This has, they argue, created an unnecessary monopoly and may even be excluding dogs that courts have previously found acceptable and have helped witnesses testify effectively in the past.

The student-written pieces address topics that are of interest to members of the bar in Massachusetts and nationwide. The topics covered involve:

• a look at the use of the individualized theory as compared to the conspiracy-wide theory in drug charge sentencing, and an argument that the individualized theory is the proper method to be implemented in the federal courts (Hunter R. Wildrick); • an examination of the historical development of animal testing in the cosmetic industry, and a review of the modern animal testing regulations in the U.S. and abroad (Jane K. Innis); • an analysis of the pros and cons of the United Kingdom’s post-employment promise, known as Garden Leave, and its implementation into the newly-enacted Massachusetts Noncompetition Agreement Act (Helen Yuxuan Huang); • a historical examination of the constitutionality behind the authority to tax, and an analysis of its relation to the current trade climate (Jessica A. Mehaylo);

• an examination of the current legal climate surrounding sexual misconduct on college campuses (Aubrey Trudeau); • an analysis of the First Circuit’s decision that found the terrorism exception under the Foreign Sovereign Immunities Act inapplicable to an alleged extrajudicial killing of a United States citizen (Stephanie M. Sader); • a discussion of the Sixth Circuit’s decision on the attachment of the Sixth Amendment right to counsel to critical stages of prosecution that occur prior to the formal commencement of judicial proceedings (Sierra Lovely); and • an analysis of the D.C. Circuit’s decision on the application of the political question doctrine regarding the use of armed drones to conduct conventional strikes abroad (Stephen R. Harris).

My thanks and gratitude go out to the twenty-seven staff members of the Moot Court Honor Board who helped put this Issue together with hard work and dedication. Special thanks goes out to our Executive Editor, Stephanie Sader, whose hard work, support, and commitment was vital throughout the editing process. I want to also thank our Managing Editor, Dean Fiotto, who sought out and polished an exceptional lead article; Associate Managing Editor, Stephanie Calderon, who worked diligently to format this Issue; Associate Executive Editors, Jane Innis, Helen Huang, Sierra Lovely, Shauni Lynch, and Hunter Wildrick, who ensured the quality of our staff members’ cite checking; Lead Article Editors, Thomas Stirrat, Aubrey Trudeau, and Stephen Harris, who polished and provided important feedback on the lead article; and President, Timothy Rennie, Note Editor, Danielle Paulson, and Executive Director of Trial Competitions, Anna McCabe, who all took part in a final executive editing round. The Moot Court Honor Board is indebted to the entire editorial staff for the countless hours devoted to the editing process. Finally, I would like to thank the Board’s advisor, Professor Richard G. Pizzano, the Board’s Staff Assistant, Janice Quinlan, and the Deans and Faculty of Suffolk University Law School for their continued support of the Suffolk Journal of Trial & Appellate Advocacy and the Moot Court Honor Board,.

Thank you for reading the first Issue in Volume XXV of the Suffolk Journal of Trial & Appellate Advocacy. I am confident judges, practitioners, professors, and students will benefit from our scholarship. My best wishes in your endeavors, and I hope you will find this Issue thought-provoking, relevant, and useful. Lastly, we hope that you and your families and friends remain healthy and safe during this unprecedented time.

Sincerely,

Nick McLaughlin Editor-in-Chief

THE USE AND ABUSE OF DOGS IN THE WITNESS BOX

John J. Ensminger, Sherri Minhinnick, James Lawrence Thomas, and Itiel E. Dror1

ABSTRACT

The movement to allow dogs to accompany children and vulnerable adult witnesses during testimony has led to an increasing number of judicial decisions and statutes across the United States. Courts must balance the fact that certain witnesses find testifying less traumatic when accompanied by a dog with the possibility that allowing a dog beside the witness may prejudice the jury. Judges may too easily accept that they can overcome such a bias through specific cautions and instructions given to jurors, but research on the implicit biases of juries arising from the presence of dogs in the courtroom is only the beginning. Statutes are meant to assure that dogs can be comfort items, like dolls and teddy bears, just as previous statutes assured that support persons could be available for certain witnesses. An additional concern, however, is that of monopoly; legislation in some states has resulted in one national organization becoming the sole source for courtroom comfort dogs in those states.

1 John J. Ensminger is a member of the New York and United States Supreme Court bars and is the author of Service and Therapy Dogs in American Society and Police and Military Dogs. Sherri Minhinnick is the Director of Operations, canine trainer, and handler at K9 Resources in Kings Mills, Ohio. She served for a time as a limited special deputy with the Warren County Sheriff’s Office in Ohio. Additionally, she holds a Special Investigator License in four states and holds clearance for Class 33 High Grade Explosives with the U.S. Department of Justice. James Lawrence Thomas is a clinical psychologist, neuropsychologist, and the founder of The Brain Clinic in New York City. He has held faculty appointments at New York University School of Medicine, Fordham University, and John Jay College. Itiel E. Dror is a Senior Cognitive Neuroscience researcher at University College London, United Kingdom. He researches a variety of issues regarding psychology, bias, and the law and works closely with the judiciary and law enforcement in the U.S., U.K., and other countries. 2 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

TABLE OF CONTENTS

I. INTRODUCTION ...... 3 II. CRIMES, WITNESSES, AND DOGS ...... 9 A. Crimes in Which Dogs are Commonly Used by Witnesses ...... 9 B. Child Witnesses in Case Law ...... 11 C. Vulnerable Adult Witnesses in Case Law ...... 13 D. Statutory witness restrictions by age and capacity ...... 14 III. THRESHOLD ISSUES AND OBJECTIONS ...... 20 A. Judicial Consideration of Training and Training Organizations ...... 20 B. Legislative Perspectives on Training and the Growth of a Monopoly ...... 21 C. Handler Qualification ...... 33 D. Insurance Requirements ...... 36 IV. CONDUCT OF TRIALS WITH FACILITY DOGS ...... 38 A. Witness Becoming Familiar with Dog Before Trial or at Preliminary Hearing ...... 38 B. Placement of Dogs During Trials ...... 40 C. Presence and Visibility of Handler With or Near Dog ...... 45 D. Misbehavior of Dog ...... 47 E. Facility Dogs Present in Court but Not During Testimony ...... 49 V. DOGS AND JURIES ...... 50 A. Arguments on Jury Prejudice ...... 50 B. Jury Cautions and Instructions ...... 54 C. Cross-species Communication and Implicit Bias ...... 58 D. Research on Impact on Juries of Dogs Accompanying Witnesses ...... 60 VI. CONCLUSION ...... 63 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 3

I. INTRODUCTION

For many decades, psychologists and other mental health professionals have investigated the advantages of dogs to enhance the communication skills of ordinary children, mental patients, special-needs children, prisoners, and other groups.2 There is considerable research on the difficulties that children face while testifying in the presence of those who may have abused them, as well as the difficulties of testifying in open court in general.3 Studies have shown that the presence of a dog makes it more likely that a child will be able to recount frightening experiences, even in difficult environments.4 Measurements of stress biomarkers in children during forensic interviews regarding sexual abuse situations determined that children accompanied by a therapy dog maintained lower heart rates and cortisol levels than children describing the situations without such a dog.5 These benefits have also been verified to apply to adults with various disabilities.6 Increasingly, courts are permitting children and other vulnerable witnesses to be accompanied by dogs when taking the stand for difficult testimony.7 At least thirty-one states have implemented courthouse dog

2 See JOHN J. ENSMINGER,SERVICE AND THERAPY DOGS IN AMERICAN SOCIETY:SCIENCE, LAW AND THE EVOLUTION OF CANINE CAREGIVERS 73–86 (Charles C. Thomas 2010) (discussing service dog support of individuals with mental disabilities); Lorie Fike, Cecilia Najera, and David Dougherty, Occupational Therapists as Dog Handlers: The Collective Experience with Animal- Assisted Therapy in Iraq, U.S. ARMY MED.DEP’T J. 51, 53 (Apr. – June 2012) (describing how, in the presence of a therapy dog, “service members appeared more likely to share their concerns, fears, and goals, and to let down their guard for a short time,” and that such dogs, when incorporated into classes, helped soldiers “assist with self-esteem, anger management, or communication skills.”). 3 See Gail S. Goodman et al., Testifying in Criminal Court: Emotional Effects on Child Sexual Assault Victims, 57 MONOGRAPHS OF THE SOC’Y FOR RES.IN CHILD DEV. 1, 1–159 (1992). 4 See Novine Bardill & Sally Hutchinson, Animal-Assisted Therapy with Hospitalized Adolescents, 10 J. CHILD &ADOLESCENT PSYCHIATRIC NURSING 17, 18 (1997) (recounting research showing pets “serve as catalysts for positive social interactions”). 5 See Cheryl A. Krause-Parello & Elsie E. Gulick, Forensic Interviews for Child Sexual Abuse Allegations: An Investigation into the Effects of Animal-Assisted Intervention on Stress Biomarkers, 24 J. CHILD SEX ABUSE 873, 881–83 (2015). 6 See Caroline LaFrance et al., The Effect of a Therapy Dog on the Communication Skills of an Adult with Aphasia, 40 J. COMM.DISORDERS 215, 216–17 (2007) (explaining benefits of service dogs for aphasia, Alzheimer’s, and other hospitalized psychiatric conditions). 7 See Marianne Dellinger, Note, Using Dogs for Emotional Support of Testifying Victims of Crime, 15 LEWIS &CLARK L. REV. 171, 175–77 (2009) (discussing early examples of dogs being used effectively during witness testimony). Although both the popular press and peer-reviewed publications generally favor the use of dogs in courtrooms, this position is far from universal. A student Note focused on New York law and argued that therapy dogs should not be permitted to assist children testifying during criminal trials. See Abigayle L. Grimm, Note, An Examination of Why Permitting Therapy Dogs to Assist Child-Victims When Testifying During Criminal Trials 4 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV programs.8 Decisions concerning the use of dogs on the witness stand have been issued by courts in Arizona,9 California (including one federal habeas),10 Connecticut,11 Idaho,12 Indiana,13 Michigan (one federal habeas),14

Should Not Be Permitted, 16 J. GENDER,RACE &JUST. 263, 267–70 (2013) (arguing, based on New York law, that dogs should not assist children during testimony in criminal trial). 8 See Ellen O’Neill Stephens, Testimony in support of H.B. NO. 1668 A Bill for an Act Relating to the Use of Dog in Judicial Proceedings, OFF.PROSECUTING ATT’Y (Feb. 12, 2016 2:00PM), https://www.capitol.hawaii.gov/session2016/testimony/HB1668_TESTIMONY_JUD_ 02-12-16_.PDF [https://perma.cc/XMB2-27JG] (indicating there were ninety-eight courthouse facility dogs in thirty-one states working at time of testimony). 9 See State v. Millis, 391 P.3d 1225, 1233–35 (Ariz. Ct. App. 2017) (showing how use of facility dog by witness was not prejudicial against defendant). 10 See Spence v. Beard, No. 14-cv-1624, 2015 WL 1956436, at *1 (S.D. Cal. Apr. 9, 2015) (habeas petitioner from preceding case); People v. Shepler, No. D073594, 2018 WL 3979282, at *1 (Cal. Ct. App. Aug. 21, 2018) (trial court did not abuse discretion by allowing support dog); People v. Riley, No. D070277, 2017 WL 2375504, at *1 (Cal. Ct. App. June 1, 2017) (presence of support dog does not impact defendant’s due process rights); People v. Chenault, 175 Cal. Rptr. 3d 1, 4 (Ct. App. 2014) (presence of support dog not prejudicial or violative of defendant’s constitutional rights); People v. Spence, 151 Cal. Rptr. 3d 374, 404–05 (Ct. App. 2012). 11 See State v. Devon D., 138 A.3d 849, 865 (Conn. 2016) (trial court may exercise discretion to permit dog for witness’s comfort). 12 See State v. Nuss, 446 P.3d 458, 462 (Idaho Ct. App. 2019) (district court did not abuse discretion by allowing dog and handler to accompany witness). 13 See Stewart v. State, No. 45A03-1506-CR-553, 2016 WL 915708, at *5 (Ind. Ct. App. Mar. 19, 2016) (trial court did not err in permitting comfort dog); see also Buskirk v. State, No. 18A- CR-350, 2018 WL 5260658, at *1 (Ind. Ct. App. Oct. 23, 2018). 14 See United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *1 (E.D. Mich. Sept. 28, 2016); People v. Shorter, 922 N.W.2d 628, 635 (Mich. Ct. App. 2018) (“[A] fully abled adult witness may not be accompanied by a support animal or support person while testifying.”); People v. Tomaszycki, No. 329224, 2017 WL 1244174, at *4 (Mich. Ct. App. Apr. 4, 2017) (rejecting defendant’s claim that dog was allowed in error); People v. Johnson, 889 N.W.2d 513, 528 (Mich. Ct. App. 2016) (use of dog did not implicate confrontation clause); People v. Degner, No. 327025, 2016 WL 3344503, at *2 (Mich. Ct. App. June 14, 2016) (trial court within its discretion to permit use of dog). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 5

New York,15 Ohio (one federal habeas),16 Tennessee,17 Texas,18 and Washington.19 Fifteen states and the territory of Guam passed legislation allowing the use of dogs (variously denominated) during witness testimony.20

15 See People v. Geddis, 102 N.Y.S.3d 846, 848–49 (App. Div. 2019) (reversing and remanding in part because allowing use of dog at trial was error); People v. Tohom, 969 N.Y.S.2d 123, 134 (App. Div. 2013) (use of dog was unobtrusive). 16 See George v. Lazaroff, No. 5:16cv1963, 2017 WL 3263454, at *1 (N.D. Ohio June 22, 2017) (involving habeas petitioner from State v. George); State v. Lacey, No. 2017-CA-63, 2018 WL 5307079, at *6 (Ohio Ct. App. Oct. 25, 2018) (use of support dog had no effect on outcome); State v. Hasenyager, 67 N.E.3d 132, 135 (Ohio Ct. App. 2016) (defendant must object to dog at trial); State v. Jacobs, No. 27545, 2015 WL 6180908, at *7 (Ohio Ct. App. Oct. 21, 2015) (permitting dogs under particular circumstances); State v. George, No. 27279, 2014 WL 7454798, at *8 (Ohio Ct. App. Dec. 31, 2014) (declining to address use of dog as defendant failed to present argument to trial court). 17 See State v. Davis, No. M2017-00293-CCA-R3-CD, 2018 WL 1468819, at *1 (Tenn. Ct. App. Mar. 26, 2017); State v. Reyes, 505 S.W.3d 890, 897 (Tenn. Crim. App. 2016) (trial court did not abuse its discretion in permitting use of facility dog). 18 See Lambeth v. State, 523 S.W.3d 244, 248 (Tex. Ct. App. 2017) (any error with service dog was harmless); Smith v. State, 491 S.W.3d 864, 877 (Tex. Ct. App. 2016) (no error in allowing service dog). 19 See State v. Dye, 309 P.3d 1192, 1200–01 (Wash. 2013) (trial court properly balanced benefits and prejudice of facility dog); State v. Moore, No. 44221–3–II, 2014 WL 1917289, at *1 (Wash. Ct. App. May 13, 2014) (indicating trial court did not err by allowing use of service dog); State v. Coria, No. 66995–8–I, 2012 WL 1977439, at *2 (Wash. Ct. App. June 4, 2012) (dog’s presence did not violate defendant’s right to fair trial). 20 See ALA.CODE § 12-21-148 (2017) (defining and permitting certified facility dog to reduce witness stress); ALA.CODE § 12-21-147 (identifying requirements for emotional support dog training and appearance in courtroom); ARIZ.REV.STAT. ANN. §§ 8-422, 13-4442 (2016) (permitting victims under eighteen access to qualifying assistance dog for court testimony); ARK. CODE ANN. § 16-43-1002 (West 2015) (defining and permitting use of certified facility dog and certified handler in courtroom); CAL.PENAL CODE § 868.4 (2018) (permitting therapy or facility dogs that meet credentials for criminal or juvenile hearings); COLO.REV.STAT. § 16-10-404 (West 2019) (providing procedural guidance for use of service dog in proceeding); FLA.STAT. § 92.55 (2017) (indicating service dog use permitted for minor, intellectually disabled, or victims of sexual assault); HAW.REV.STAT. § 621-30 (2019) (allowing court discretion for use of facility dog in testimony of vulnerable witness); IDAHO CODE § 19-3023 (2017) (permitting service dog for child witnesses in criminal matters); 725 ILL.COMP.STAT. § 5 / 106b-10 (West 2015) (identifying circumstances where facility dog use in testimony is permissible and its limitations); LA.STAT. ANN. § 15:284 (2018) (providing requirements for use of facility dog and jury instructions when necessary); MICH.COMP.LAWS § 600.2163a (West 2019) (defining permissible tools for vulnerable witness testimony including courtroom support dog); MISS.CODE ANN. § 99-43- 101(2)(f) (West 2019) (defining and permitting trained facility animal, category of support animal, including dog or miniature horse under Miss. Code Ann. § 43-6-153(e)); OKLA.STAT.ANN. tit. 12, §§ 2611.2(F), 2611.12 (2014) (recognizing need for support dog and where it may replace “support person”); VA.CODE ANN. § 18.2-67.9:1 (West 2018) (providing circumstances in which court may enter order and authorize facility dog for witness); WASH.REV.CODE §10.52.110 (2019) (permitting use of facility dog in any judicial proceeding for minor or disabled witness); 10 GUAM CODE ANN. § 34401(i)(1) (2018) (defining therapy dog, courthouse companion dog, and facility dog training). 6 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Case law in various states has established that it is within the discretion of the trial court judge to permit vulnerable or adolescent witnesses to use dogs to aid in their testimony.21 Not all courts have accepted this practice, and some have set limits. For instance, a Michigan judge presiding over a federal prosecution for sex trafficking allowed a seventeen- year-old witness to use a dog in the lobby area and attorney conference rooms, but not in the witness box.22 A New York appellate court reversed a conviction on multiple grounds, including the trial court’s allowance of a victim to testify accompanied by a therapy dog, without any analysis concerning why the use of a service dog was deemed an error.23 A Michigan appellate court reversed a trial court decision that allowed a dog to accompany an adult witness without a disability during testimony, requiring a new trial.24 A Michigan federal court specifically denied a motion by the government to allow a “canine advocate” to accompany minor victims at trial, noting that the Child Victims’ and Child Witnesses’ Rights statute “does not provide for a support animal to accompany a child in addition to the adult attendant.”25 Although excluding the support animal from the courtroom, the Michigan court accepted that the witnesses could be with the dog before and after testimony, and during breaks “in the hallway outside of the courtroom or in the attorney conference room being used by the Government.”26 Courts have generally rejected a requirement of necessity— that the witness needed the dog to be able to testify reliably and completely.27

21 See People v. Chenault, 175 Cal. Rptr. 3d 1, 7–8 (Ct. App. 2014); State v. Devon D., 138 A.3d 849, 867 (Conn. 2016); State v. Nuss, 446 P.3d 458, 462 (Idaho Ct. App. 2019); People v. Johnson, 889 N.W.2d 513, 522 (Mich. Ct. App. 2016) (discussing Mich. Comp. Laws § 600.2163(a)); People v. Tohom, 969 N.Y.S.2d 123, 126 (App. Div. 2013). 22 See United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *21–22 (E.D. Mich. Sept. 28, 2016) (ruling based on facts available to court on motion). 23 See People v. Geddis, 102 N.Y.S.3d 846, 849 (App. Div. 2019) (finding court abused discretion in allowing victim to testify accompanied by therapy dog). 24 See People v. Shorter, 922 N.W.2d 628, 633 (Mich. Ct. App. 2018) (discussing use of animal support does not transfer to able bodied adult witness). 25 See United States v. Neuhard, No. 15 cr-20425, 2017 WL 971677, at *2 (E.D. Mich. Mar. 14, 2017) (citing 18 U.S.C. § 3509 (2019)). The court also noted that the two child witnesses had previously testified without a canine advocate, “albeit in a closed courtroom during preliminary examination . . . .” Id. at *3. Further, “[t]he Government has not pled facts that indicate that [the two child witnesses] will be unable to testify in the absence of a support animal.” Id. at *3–4. 26 See id. at *4. 27 See People v. Chenault, 175 Cal. Rptr. 3d 1, 11 (Ct. App. 2014) (stating trial court should “determine whether the presence of a support dog would assist or enable that witness to testify without undue harassment or embarrassment and provide complete and truthful testimony.”); State v. Devon D., 138 A.3d 849, 865 (Conn. 2016) (concluding compelling need not required as “the pivotal question is not whether the special procedure is necessary but whether it will aid the witness in testifying truthfully and reliably.”); People v. Shorter, 922 N.W.2d 628, 634 (Mich. Ct. App. 2018) (declaring use of dog should not be granted merely because witness will “be ‘more 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 7

Some courts have referred to “implicit” findings of necessity.28 A Connecticut appellate court reversed a trial court on the grounds that a showing of necessity had not been made at trial, but that ruling was then reversed by the Connecticut Supreme Court.29 In a federal habeas petition, the magistrate judge said that the state trial court should have required a showing of specific need as to particular witnesses.30 Hawaii’s statute requires a determination that a compelling necessity exists that calls for the use of a facility dog.31 Washington’s statute requires that the party seeking to use a courthouse facility dog provide “reasons why the courthouse facility dog is necessary to facilitate a witness’s testimony,” and the statute provides that the witness may use the dog on the finding of such a necessity.32 At present, the predominant judicial and legislative term for a dog accompanying a witness during testimony is “facility dog,” and that is the term that will be the default for this Article.33 Cases, statutes, and both legal

comfortable’ or because ‘this is something she wants.’”); People v. Johnson, 889 N.W.2d 513, 528 (Mich. Ct. App. 2016) (stating no requirement of necessity if Confrontation Clause not violated); People v. Tohom, 969 N.Y.S.2d 123, 126–27 (App. Div. 2013) (finding defense’s argument that showing of necessity should have been required was “without merit”; court was obligated to consider procedures “to protect [the witness’s] mental and emotional well-being while testifying”); State v. Jacobs, No. 27545, 2015 WL 6180908, at *12 (Ohio Ct. App. Oct. 21, 2015) (holding trial court is to “protect witnesses from harassment or undue embarrassment” under Ohio R. Evid. 611(A)); Smith v. State, 491 S.W.3d 864, 874 (Tex. App. 2016) (accepting dog’s presence for “child’s comfort and anxiety and mental well-being”). 28 See Chenault, 175 Cal. Rptr. 3d at 7–8; People v. Spence, 151 Cal. Rptr. 3d 374, 403 (Ct. App. 2012) (quoting Dye that “necessary balancing was implicit in the court’s ruling . . . .”); State v. Dye, 309 P.3d 1192, 1199 (Wash. 2013) (ruling that prosecution had burden “to prove that a special dispensation for a vulnerable witness is necessary”). 29 See Devon D., 138 A.3d at 868; State v. Devon D., 90 A.3d 383, 405–406 (Conn. App. Ct. 2014), rev’d, 138 A.3d 849 (Conn. 2016). 30 See George v. Lazaroff, No. 5:16CV1963, 2017 WL 3263454, at *1 (N.D. Ohio July 31, 2017). The Ohio appellate court dismissed arguments regarding necessity on appeal as not preserved because not made at trial. State v. George, No. 27279, 2014 WL 7454798, at *6 (Ohio Ct. App. Dec. 31, 2014). See United States v. Neuhard, No. 15 cr-20425, 2017 WL 971677, at *3 (E.D. Mich. Mar. 14, 2017) (“Government has not pled facts that indicate that [the two child witnesses] will be unable to testify in the absence of a support animal.”). 31 See HAW.REV.STAT. § 621-30(b) (2019) (“[C]ourt may permit the use of a facility dog in a judicial proceeding involving the testimony of a vulnerable witness if the court determines that there is a compelling necessity for the use of a facility dog to facilitate the testimony of a vulnerable witness.”). 32 See WASH.REV.CODE §§ 10.52.110(4d), (5) (2019) (authorizing courts to permit use of courthouse facility dogs). 33 See State v. Hasenyager, 67 N.E.3d 132, 135 (Ohio Ct. App. 2016); State v. Davis, No. M2017-00293-CCA-R3-CD, 2018 WL 1468819, at *3 (Tenn. Crim. App. Mar. 26, 2018). For a judicial discussion on why some terms may be confusing or even prejudicial and the reasoning behind settling on the use of “facility dog.” See State v. Devon D., 90 A.3d 383, 400 (Conn. App. Ct. 2014), rev’d, 138 A.3d 849 (Conn. 2016); see also People v. Johnson, 889 N.W.2d 513, 525 (Mich. Ct. App. 2016). 8 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV and scientific literature have also called them courthouse dogs,34 courthouse facility dogs,35 companion dogs,36 courthouse companion dogs,37 courtroom support dogs,38 therapy dogs,39 canine therapy dogs,40 service dogs,41 comfort dogs,42 therapeutic comfort dogs,43 therapy assistance animals,44 support dogs,45 support canines,46 canine advocates,47 and in one case a dog was described as a comfort item.48 Although dogs performing certain public functions, such as tracking, are often chosen from a limited number of breeds, no breed preference has been demonstrated for facility dogs; however, occasionally a court describes the breed of the dog used, of which many are Labradors.49

34 See People v. Johnson, 889 N.W.2d 513, 531 n.6 (Mich. Ct. App. 2016). The term is used by the Courthouse Dogs Foundation, the principal institutional advocate for the use of dogs in courthouses. Id. 35 See State v. Reyes, 505 S.W.3d 890, 896 (Tenn. Crim. App. 2016); see also State v. George, No. 27279, 2014 WL 7454798, at *4 (Ohio Ct. App. Dec. 31, 2014). In George, the dog was referred to variously as a facility dog, a companion dog, and a working dog. 2014 WL 7454798, at *4; see WASH.REV.CODE §10.52.110(9)(b). 36 See State v. Jacobs, No. 27545, 2015 WL 6180908, at *1 (Ohio Ct. App. Oct. 21, 2015). “Companion animals” often refer to pets. See ANTHONY L. PODBERSCEK ET AL., COMPANION ANIMALS AND US:EXPLORING THE RELATIONSHIPS BETWEEN PEOPLE AND PETS (Cambridge Univ. Press 2005). 37 See 10 GUAM CODE ANN. § 34401(i)(1) (2018). 38 See MICH.COMP.LAWS § 600.2163a(1)(a) (West 2019). 39 See, e.g., United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *7 (E.D. Mich. Sept. 28, 2016); People v. Johnson, 889 N.W.2d 513, 531 n.6 (Mich. Ct. App. 2016); State v. Dye, 309 P.3d 1192, 1197 (Wash. 2013). In Gardner, the dog was referred to by the court as a “therapy dog,” although the dog’s training had involved Leader Dogs for the Blind, a guide dog organization. Id.; see State v. Carlson, No. 63652-9-I, 2011 WL 198633, at *2 (Wash. Ct. App. Jan. 24, 2011) (mentioning an “in-court therapy dog” who was not at witness stand but for which the seven-year old witness left the witness chair to play with). 40 See People v. Spence, 151 Cal. Rptr. 3d 374, 401 (Ct. App. 2012); see also State v. Carlson, No. 63652-9-I, 2011 WL 198633, at *2 (Wash. Ct. App. Jan. 24, 2011) (mentioning an “in-court therapy dog” who was not at witness stand but for which the seven-year old witness left the witness chair to play with). 41 See State v. Devon D., 90 A.3d 383, 400 (Conn. App. Ct. 2014), rev’d, 138 A.3d 849 (Conn. 2016); Smith v. State, 491 S.W.3d 864, 868 (Tex. App. 2016); State v. Moore, No. 44221–3–II, 2014 WL 1917289, at *1 (Wash. Ct. App. May 13, 2014) 42 See Johnson, 889 N.W.2d at 525. 43 See People v. Tohom, 969 N.Y.S.2d 123, 125–27 (App. Div. 2013). 44 See id. at 125. 45 See People v. Riley, No. D070277, 2017 WL 2375504, at *2 (Cal. Ct. App. June 1, 2017); State v. Reyes, 505 S.W.3d 890, 897 (Tenn. Crim. App. 2016). 46 See People v. Chenault, 175 Cal. Rptr. 3d 1, 7 (Ct. App. 2014). 47 See Johnson, 889 N.W.2d at 521. 48 See Stewart v. State, No. 45A03-1506-CR-553, 2016 WL 915708, at *9 (Ind. Ct. App. Mar. 10, 2016). 49 See People v. Johnson, 889 N.W.2d 513, 521 (Mich. Ct. App. 2016) (describing black Labrador retriever named Mr. Weeber); People v. Tohom, 969 N.Y.S.2d 123, 125 (App. Div. 2013) 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 9

II. CRIMES, WITNESSES, AND DOGS

A. Crimes in Which Dogs are Commonly Used by Witnesses

While the most frequent use of a dog with a witness in a courtroom has been to accompany a child while testifying about a sexual crime,50 other types of crimes in which dogs have accompanied witnesses include murder,51 child abuse,52 aggravated assault (against the mother of the child witness),53

(noting presence of golden retriever); Lambeth v. State, 523 S.W.3d 244, 246 n.1 (Tex. App. 2017) (describing yellow Labrador retriever named Ranger); State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013) (describing golden retriever); State v. Carlson, No. 63652-9-1, 2011 WL 198633, at *2 (Wash Ct. App. Jan. 24, 2011) (describing black Labrador retriever named Ariah). 50 See People v. Shepler, No. D073594, 2018 WL 3979282, at *1 (Cal. Ct. App. Aug. 21, 2018) (support dog was present during trial for violations under Cal. Penal Code § 288); People v. Riley, No. D070277, 2017 WL 2375504, at *2 (Cal. Ct. App. June 1, 2017) (explaining minor witnesses allowed to use dog in trial for Cal. Penal Code § 288 violations); People v. Chenault, 175 Cal. Rptr. 3d 1, 3 (Ct. App. 2014); People v. Spence, 151 Cal. Rptr. 3d 374, 380 (Ct. App. 2012) (exercising discretion, trial court allowed therapy dog to accompany child during sexual offense testimony); State v. Devon D., 90 A.3d 383, 386-87 (Conn. App. Ct. 2014), rev’d, 138 A.3d 849, 852 (Conn. 2016) (allowing dog in trial for first-degree sexual assault, injury to child, and risk of injury to child); Stewart v. State, No. 45A03-15060CR-553, 2016 WL 915708, at *4 (Ind. Ct. App. Mar. 10, 2016) (allowing dog as a comfort item for child victim in child molestation trial); People v. Tomaszycki, No. 329224, 2017 WL 1244174, at *4 (Mich. Ct. App. Apr. 4, 2017) (showing thirteen multiple sexual assault victims used dog even though defendant was absent from courtroom); People v. Johnson, 889 N.W.2d 513, 527–28 (Mich. Ct. App. 2016) (describing sexual conduct violations); People v. Geddis, 102 N.Y.S.3d 846, 849 (App. Div. 2019) (allowing dog to accompany testifying victim in lower court was abuse of discretion); Tohom, 969 N.Y.S.2d at 128 (describing jury instruction including presence of “companion dog” in trial for child sexual assault); State v. Lacey, No. 2017-CA-63, 2018 WL 5307079, at *1 (Ohio Ct. App. Oct. 25, 2018) (noting thirteen year old child rape victim allowed to be accompanied by facility dog); State v. Hasenyager, 67 N.E.3d 132, 135 (Ohio Ct. App. 2016) (permitting dogs to accompany witnesses in trial with charges of rape and gross sexual assault); State v. Jacobs, No. 27545, 2015 WL 6180908, at *5 (Ohio Ct. App. Oct. 21, 2015) (court allowed sexual assault victim to testify with dog); State v. George, No. 27279, 2014 WL 7454798, at *1 (Ohio Ct. App. Dec. 31, 2014) (noting dog named Avery to be used at trial to assist children’s testimony regarding charge of rape of child); State v. Davis, No. M2017-00293-CCA-R3, 2018 WL 1468819, at *1, *4 (Tenn. Ct. App. Mar. 26. 2018) (noting child witness had dog during trial for aggravated sexual battery); State v. Reyes, 505 S.W.3d 890, 898 (Tenn. Crim. App. 2016) (court permitted use of facility dog during trial for rape of child under thirteen years of age); Lambeth, 523 S.W.3d at 246 (sexual abuse of child and aggravated sexual assault against child). 51 See State v. Millis, 391 P.3d 1225, 1233 (Ariz. Ct. App. 2017) (facility dog allowed to sit next to mother of child victim because she too was considered victim under statute). 52 See People v. Degner, No. 327025, 2016 WL 3344503, at *2 (Mich. Ct. App. June 11, 2016). 53 See Smith v. State, 491 S.W.3d 864, 876 (Tex. App. 2016) (noting child allowed to testify with assistance of dog in aggravated assault). 10 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV aggravated theft and residential burglary,54 second degree assault with domestic violence,55 and sex trafficking of children.56 Statutes generally provide that facility dogs may be present in criminal matters; such provisions are often contained in a state’s criminal procedure laws.57 Arizona specifies that a facility dog may accompany “the victim while testifying” and presumably would be restricted to the victim of a crime.58 However, the Hawaii and Washington statutes refer only to a judicial proceeding, without restricting this to criminal matters.59 Mississippi’s statute provides for the use of a “properly trained facility animal”60 in any proceeding in which a child (an individual under 18) testifies.61 The statute does not define a facility animal though it describes a proceeding for the section’s purposes as a “criminal hearing, criminal trial or other criminal proceeding in the circuit or county court in which a child testifies as a victim of a crime or as a witness as to a material issue” or a “youth court proceeding in which a child testifies as a victim of a crime or a delinquent act or as a witness to a crime or delinquent act.”62 Guam refers to the use of “courthouse companion dogs” in a “court room setting,” but requires the territory’s Attorney General to develop policies and practices on the issue.63

54 See State v. Dye, 309 P.3d 1192, 1194 (Wash. 2013). 55 See State v. Moore, No. 44221–3–II, 2014 WL 1917289, at *1 (Wash. Ct. App. May 13, 2014) (explaining charge was filed by wife of defendant). 56 See United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *7 (E.D. Mich. Sept. 28, 2016) (noting adult was child at time of offense, but dog was not allowed on witness stand). 57 See ARK.CODE ANN. § 16-43-1002(b) (West 2015) (certification of facility dogs for child witnesses); COLO.REV.STAT. § 16-10-404 (West 2019) (defining use of court facility dog); FLA. STAT. § 92.55(2) (2017) (explaining appropriate use of therapy animals or facility dogs); IDAHO CODE § 19-3023(1) (2017); 725 ILL.COMP.STAT. § 5/106B-10 (West 2015); LA.STAT.ANN. § 15:284(a) (2018); OKLA.STAT.ANN. tit. 12 §§ 2611.2(f), 12-2611.12 (2014). 58 See ARIZ.REV.STAT.ANN. §§ 8-422(a), 13-4442(a) (2016) (describing use of facility dogs in court proceedings). 59 See HAW.REV.STAT. § 621-30 (2019) (explaining use of facility dog); WASH.REV.CODE §10.52.110(1) (2019). 60 See MISS.CODE ANN. § 99-43-101(2)(f) (West 2019) (permitting properly trained facility animal or comfort item to be present). 61 See id. § 99-43-101(2) (establishing rights of children who testify). 62 See MISS.CODE ANN. §§ 99-43-101(1)(b)(i), (ii). 63 See 10 GUAM CODE ANN. § 34401(i)(1) (2018) (defining therapy dog). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 11

B. Child Witnesses in Case Law

Court opinions generally mention the age of a child witness at the time of the crime as well as at the time of testimony.64 Some crimes occurred over multiple years and the time span is generally indicated. In Coria, the boy was nine at the time he witnessed a violent assault on his mother and was eleven when he testified with a therapy dog.65 In Spence, the victim was ten at the time of the sexual assault and eleven during testimony.66 In Tohom, the abuse began when the girl was eleven and continued until she was fifteen, which was her age when she testified.67 In Chenault, the abuse began when the two girls were five and six, yet they testified when they were eleven and thirteen years old.68 The two children in George were six and eight at the time of the crime and seven and ten during the trial.69 Reyes indicates the boy was ten at the trial, the same age as the child witness in Smith.70 Johnson involved a three-year-old girl whose abuse was witnessed by her six-year- old brother; they were six and ten when testifying and both were accompanied by a support dog during the trial.71 In Devon D., the girl was nine at the time of the abuse and eleven when she testified.72 In Hasenyager, the girl was eleven at the time of the abuse and thirteen at trial.73 In Riley, at the time of the trial, multiple child victims, age thirteen and sixteen, and child witnesses, age ten, fifteen, and seventeen, testified with the help of a support dog.74 All five witnesses used a dog when testifying, the largest number of witnesses using a dog in a single trial. In Davis, the six-year-old victim’s forensic interview was presented at court via DVD, but she was present in the courtroom with a dog while the DVD was being played and began

64 See People v. Shepler, No. D073594, 2018 WL 3979282, at *2 (Cal. Ct. App. Aug. 21, 2018) (discussing witness minor with brain injury and potential impact of dog on jury); People v. Tomaszycki, No. 329224, 2017 WL 1244174, at *2 (Mich. Ct. App. Apr. 4, 2017) (describing how court allowed other witnesses to site beside victim). 65 See State v. Coria, No. 66995–8–I, 2012 WL 1977439, at *1 (Wash. Ct. App. June 4, 2012). 66 See People v. Spence, 151 Cal. Rptr. 3d 374, 378 (Ct. App. 2012) (describing dog sitting at child’s feet when she testified). 67 See People v. Tohom, 969 N.Y.S.2d 123, 126 (App. Div. 2013). 68 See People v. Chenault, 175 Cal. Rptr. 3d 1, 6 (Ct. App. 2014). 69 See State v. George, No. 27279, 2014 WL 7454798, at *1 (Ohio Ct. App. Dec. 31, 2014). 70 See State v. Reyes, 505 S.W.3d 890, 893 (Tenn. Crim. App. 2016); Smith v. State, 491 S.W.3d 864, 868 (Tex. App. 2016). 71 See People v. Johnson, 889 N.W.2d 513, 521 (Mich. Ct. App. 2016). 72 See State v. Devon D., 138 A.3d 849, 859 (Conn. 2016) (discussing Conn. Gen. Stat. § 54- 86g). 73 See State v. Hasenyager, 67 N.E.3d 132, 133 (Ohio Ct. App. 2016). 74 See People v. Riley, No. D070277, 2017 WL 2375504, at *1 (Cal. Ct. App. June 1, 2017). 12 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV kicking and crying, which resulted in the court stopping the DVD.75 In Tomaszycki, the defendant met the child when she was ten years old, but the decision only specifies that the defendant began abusing the victim when she was under thirteen.76 The defendant, who represented himself, refused to participate in court proceedings and on appeal argued “there was no need for any witness to use the dog because he was absent from the courtroom . . . .”77 However, the appellate court noted the following:

[T]he presence of the defendant is only one of many factors that can cause stress to a witness testifying about a sexual assault. Indeed, defendant’s absence did not relieve any anxiety associated with being questioned in a public forum about prior incidents of sexual abuse, and reciting the unpleasant details of the attacks.78

In Jacobs, the victim was between eleven and fifteen during the period of the alleged abuse and seventeen when she testified. To the defense’s objection that the witness was no longer under fifteen at the time of her testimony, the appellate court stated that the defense had “failed to offer any authority to support the proposition that there is a certain age cut- off for the use of special procedures on behalf of alleged sexual abuse victims.”79 In Gardner, where a witness to sex trafficking was seventeen at time of offense but eighteen at trial, the court only allowed the dog to be with the witness in the lobby area and attorney conference rooms, but not inside the courtroom during testimony.80 The court, in restricting use of the dog to areas outside the courtroom, noted the lack of evidence of “severe development disabilities” of the witness, apparently because at eighteen, a witness would need some other vulnerability than being underage.81 In Nuss, the victim was fourteen years old at the time of the alleged lewd act and sixteen at the time of trial.82

75 See State v. Davis, No. M2017-00293-CCA-R3, 2018 WL 1468819, at *3 (Tenn. Ct. App. Mar. 26, 2018) 76 See People v. Tomaszycki, No. 329224, 2017 WL 1244174, at *1 (Mich. Ct. App. Apr. 4, 2017). 77 See id. at *4. 78 See id. 79 See State v. Jacobs, No. 27545, 2015 WL 6180908, at *5 (Ohio Ct. App. Oct. 21, 2015). 80 See id. at *8. 81 See United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *6 (E.D. Mich. Sept. 28, 2016). 82 See State v. Nuss, 446 P.3d 458, 459 (Idaho Ct. App. 2019). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 13

C. Vulnerable Adult Witnesses in Case Law

Not all witnesses accompanied by dogs have been children. In Dye, the witness, Douglas Lare, suffered from developmental disabilities, including cerebral palsy, Kallman Syndrome, and mild mental retardation; thus, even though he was fifty-six, he was determined to have the mental age of a child between six and twelve.83 In Moore, a service dog accompanied an adult victim of domestic violence to the stand when she testified against her husband, who had been charged with second degree assault with a domestic violence allegation.84 The prosecutor had moved to allow the witness to be accompanied by the dog because she “was nervous and scared about testifying . . . .”85 Defense counsel at trial made no objection.86 The appellate court argued that because the defendant failed during the trial to raise an objection regarding the dog’s presence as a violation of his right of confrontation, the issue had not been preserved on appeal absent a showing of constitutional error with “practical and identifiable consequences at trial.”87 Given that the decision is essentially procedural, it is difficult to say whether the State of Washington had accepted that a dog can accompany an adult witness without establishing any disability other than fear of an abusive husband.88 It is also to be noted that this is one of many cases where the defense failed to object at the time the dog was used in the courtroom and did not raise any issue regarding the dog’s presence until the matter was on appeal.89 In the 2018 decision of Michigan v. Shorter, a Michigan appellate court reversed a conviction for sexual assault where the witness was an adult, finding the prior Michigan decision of Johnson did not control because that case had involved a child witness while Shorter involved a “fully abled adult

83 See State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013). The Washington Supreme Court noted that the defense characterized Lare’s mental age as between 2½ and 8½. Id. at 1194 n.1. 84 See State v. Moore, No. 44221–3–II, 2014 WL 1917289, at *1 (Wash. Ct. App. May 13, 2014). 85 See id. 86 See id. 87 See id. at *3. 88 See WASH. REV.CODE § 10.52.110(4) (2019). Washington’s courthouse facility dog program statute, enacted after this case, provides for use of such dogs with a witness under 18 or one with a developmental disability, but also provides that courts may allow a witness not meeting such criteria to use a courthouse facility dog, if available. Id. § 10.52.110(2). 89 See People v. Geddis, 102 N.Y.S.3d 846, 849 (App. Div. 2019) (holding trial court abused its discretion in allowing adult victim to testify with therapy dog). However, since a new trial was necessitated by other factors, the circumstances of the use of the dog were not described. Id. at 848. 14 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV witness . . . .”90 The appellate court stated that it had been “unable to find a case in any jurisdiction allowing the use of a support animal or a support person when the witness is a non-disabled adult.”91 The court determined that Michigan’s support-person statute allows for the presence of such a person “only if the witness is a child or a developmentally disabled adult,” and reversed, requiring a new trial.92 The court pointed out that the previous Michigan decision of Johnson had involved a child witness, whereas here the witness was neither a child nor disabled. Allowing a dog to make an adult more comfortable “unlocks a door we have great hesitation about opening.”93 The court stated that the legislature could open that door, however.94 Some decisions are concerned with whether the presence of the dog suggests that the witness it accompanies must be a victim or must be vulnerable.95 Referring to a witness using a dog as “vulnerable” in the presence of the jury may contain an element of prejudice.96 A federal magistrate judge in a habeas petition arising out of a conviction for child rape criticized the trial court for referring to the witnesses using a dog as “vulnerable witnesses.”97

D. Statutory witness restrictions by age and capacity

Alabama has separate statutes for facility dogs and therapy dogs, both of which specify only that the court may allow either type of dog “[i]n

90 See People v. Shorter, 922 N.W.2d 628, 633 (Mich. App. 2018); see also People v. Johnson 889 N.W.2d 513, 515 (2016) (permitting use of support animal when child witnesses testified). 91 See Shorter, 922 N.W.2d at 633 (emphasis in original). 92 See id. (discussing Mich. Comp. Laws § 600.2163a). The statute was revised, effective January 14, 2019, to provide for use of a “courtroom support dog.” Id. Before there were any legislative initiatives regarding facility dogs, courts often began by considering whether it was appropriate to allow a facility dog into the witness box by examining a state’s support person or support item statutes. See State v. Dye, 309 P.3d 1192, 1198 (Wash. 2013) (holding comfort dog’s presence during victim’s testimony did not prejudice defendant). 93 See Shorter, 922 N.W.2d at 635. 94 See id. 95 See People v. Spence, 151 Cal. Rptr. 3d 374, 400 (Ct. App. 2012) (finding dog did not constitute support person under Cal. Penal Code § 868.5). In Nuss, the defense argued that the presence of the dog “would make the victim appear ‘more vulnerable’ and would give her testimony ‘more credence and emotionality.’” State v. Nuss, 446 P.3d 458, 459 (Idaho Ct. App. 2019). 96 See Nuss, 446 P.3d at 459. 97 See George v. Lazaroff, No. 5:16cv1963, 2017 WL 3263454, at *1, 4 (N.D. Ohio June 22, 2017); see also State v. George, No. 27279, 2014 WL 7454798, at *4 (Ohio Ct. App. Dec. 31, 2014) (pointing to prior appeal). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 15 a legal proceeding, to reduce the stress of the witness and to enhance the ability of the court to obtain full and accurate testimony . . . .”98 Arizona’s facility dog statutes state that the “court shall allow a victim who is under eighteen years of age to have a facility dog, if available, accompany the victim while testifying in court,” but for a victim who is eighteen years of age or more, or for a non-victim witness, the court “may allow” use of a facility dog.99 The Arkansas statute regarding certified facility dogs refers specifically to the use of such a dog with a witness who is “a witness testifying in a criminal hearing or trial whose age at the time of his or her testimony is eighteen (18) years of age or younger.”100 A facility dog can be “requested by either party in a criminal trial or hearing and if a certified facility dog is available within the jurisdiction of the judicial district in which the criminal case is being adjudicated . . . .”101 Since there must be a dog available for a request to be granted, neither the state nor the court need undertake to assure such availability.102 California’s statute allows for “the opportunity to have a therapy or facility dog accompanying [the witness] while testifying in court, subject to the approval of the court,”103 when the person in question is a “child witness in a court proceeding involving any serious felony, or any violent felony,”104 or a “victim who is entitled to support persons pursuant to Section 868.5, in addition to any support persons selected pursuant to that section.”105 A prosecuting witness entitled to a support person can be an “elder or dependent adult.”106 On filing a motion for the use of a therapy or facility dog, the moving party is to include “[f]acts justifying that the presence of the therapy or facility dog may reduce anxiety or otherwise be helpful to the witness while testifying.”107 This falls well short of requiring a finding of necessity.

98 See ALA.CODE §§ 12-21-147(b) and 12-21-148(b) (2017). Section 12-21-147(b) does not specify limitations on what witness may be accompanied by the dog, leaving the court to determine the appropriateness of the dog for achieving “full and accurate testimony.” Id. § 12-21-147(b). 99 See ARIZ.REV.STAT.ANN. §§ 8-422(a), 13-4442(a) (2016). 100 See ARK.CODE ANN. § 16-43-1002(a)(3) (West 2015). 101 See id. § 16-43-1002(b) (emphasis added). 102 See id. 103 See CAL.PENAL CODE § 868.4(a) (2018). 104 See id. § 868.4(a)(1). A child witness “means any witness who is under the age of 18 at the time he or she testifies.” Id. § 868.4(h)(1). 105 See id. § 868.4(a)(2). 106 See id. § 868.5(a) (highlighting how additional conditions apply to support persons under this statute). 107 See id. § 868.4(b)(3). 16 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Colorado’s statute provides that a facility dog may be in the courtroom while a witness is testifying in a criminal proceeding if the judge determines, by a preponderance of the evidence, that:

(A) The presence of a court facility dog with the witness during the witness’s testimony would reduce the witness’s anxiety and enhance the ability of the court to receive full and accurate testimony;108 (B) The arrangements for an available court facility dog during the witness’s testimony would not interfere with efficient criminal proceedings; and (C) No prejudice would result to any party due to the presence of a court facility dog with the witness.109

The party wishing to use the facility dog “must file a written motion with the court no less than fourteen days prior to the criminal proceeding.”110 Florida allows a court to provide special protections for a “victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness.”111 Protections may be granted on that party’s own motion, or on the motion of another party such as a parent, guardian, attorney, or guardian ad litem seeking “to protect the victim or witness in any judicial proceeding or other official proceeding from severe emotional or mental harm due to the presence of the defendant if the victim or witness is required to testify in open court.”112

108 See COLO.REV.STAT. § 16-10-404(1)(a) (West 2019). The dog must be “specially trained to provide support to witnesses testifying” without restricting this use to a category of witnesses, leaving this evaluation to the court’s discretion. Id. 109 See COLO.REV.STAT. § 16-10-404(2)(a). 110 See id. § 16-10-404(2)(b). 111 See FLA.STAT. § 92.55(2) (2017). 112 See id. (explaining process of protecting witnesses from severe emotional distress in judicial proceeding). The statute further provides that:

When deciding whether to permit a victim or witness under the age of 18, a person who has an intellectual disability, or a sexual offense victim or witness to testify with the assistance of a therapy animal or facility dog, the court shall consider the age of the child victim or witness, the age of the sexual offense victim or witness at the time the sexual offense occurred, the interests of the child victim or witness or sexual offense victim or witness, the rights of the parties to the litigation, and any other relevant factor that would facilitate the testimony by the victim or witness under the age of 18, person who has an intellectual disability, or sexual offense victim or witness.

Id. § 92.55(5)(a). Thus, as a child witness approaches eighteen, the court may be more receptive to a defense motion to preclude use of a dog. See id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 17

Hawaii does not specifically provide for facility dogs for children, but states a vulnerable witness “means a witness whose ability to testify in a judicial proceeding will be hampered or ineffective without the assistance of a facility dog, for reasons including but not limited to intellectual or emotional disability, intimidation, or age.”113 Although age is mentioned, a range is not specified.114 The Idaho statute states that a facility dog shall be allowed to remain in the courtroom at the witness stand in certain circumstances.115 In Nuss, an Idaho appellate court noted that the statute did not require the same “supportive relationship” between a child and a facility dog as it did between the child and the previously enumerated persons.116 Illinois statutory law provides that a court may set “[c]onditions for testimony by a victim who is a child or a moderately, severely, or profoundly intellectually disabled person or a person affected by a developmental disability.”117 A court may set conditions “involving the use of a facility dog in any proceeding involving” certain offenses, specifically “criminal sexual assault, predatory criminal sexual assault of a child, aggravated criminal sexual assault, criminal sexual abuse, or aggravated criminal sexual abuse.”118 Under Louisiana statutory law, a “court shall allow a witness who is either under eighteen years of age or who has a developmental disability . . . to have a facility dog, if available, accompany them while testifying in court.”119 However, a “court may allow any witness who does not meet the

113 See HAW.REV.STAT. 621-30(a) (2019) (highlighting how definition is broad enough to incorporate child). 114 See id. 115 See IDAHO CODE § 19-3023(1) (2017).

When a child is summoned as a witness in any hearing in any criminal matter, including any preliminary hearing, notwithstanding any other statutory provision, parents, a counselor, friend or other person having a supportive relationship with the child, or a facility dog, shall be allowed to remain in the courtroom at the witness stand with the child during the child’s testimony unless in written findings made and entered, the court finds that the defendant’s constitutional right to a fair trial will be unduly prejudiced.

Id. Although this section does not specify an age limit for a child, § 18-1506A, which deals with children and vulnerable witnesses, defines child as “any person under eighteen (18) years of age.” Id. § 18-1506A. 116 See State v. Nuss, 446 P.3d 458, 461 (Idaho Ct. App. 2019) (interpreting Idaho Code § 19- 3023(1), which allows for the facility dog’s presence and “necessarily includes the presence of its handler”). 117 See 725 ILL.COMP.STAT. § 5/106B-10 (West 2015). Under the statute, an individual is deemed a child if under the age of eighteen. Id. 118 See id. 119 See LA.STAT.ANN. § 15:284(a) (2018) (emphasis added). 18 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV criteria provided for in Subsection A of this Section to have a facility dog, if available, accompany them while testifying in court.”120 Thus, as in Arizona and Washington, a Louisiana court must allow a child to be accompanied by a dog, but has the discretion to allow the same for an adult.121 In order for a witness to be entitled to the presence of a support person or support dog, Michigan’s applicable statute provides that a witness must be an alleged victim under sixteen years old, a person sixteen years old or older with a developmental disability, or a vulnerable adult.122 Mississippi’s statute concerning the rights of children testifying in criminal proceedings states that, in “any proceeding in which a child testifies[,]”123 a party’s motion or the court’s own motion may “permit a properly trained facility animal or comfort item or both to be present inside the courtroom or hearing room.”124 Oklahoma provides that a “child witness shall be afforded the opportunity, if available, to have a certified therapeutic dog accompanied by the handler of the certified therapeutic dog in lieu of a support person.”125 A minor or incapacitated witness has the right to be accompanied by a support person while testifying, but “[i]n lieu of a support person, a witness shall be afforded the opportunity to have a certified therapeutic dog accompanied by the handler . . . .”126 It is not clear that “in lieu of” creates a hierarchy of support choices with a person being somehow preferable to a dog, but it does suggest that, unlike Mississippi, the witness is not entitled to both of them at the same time.127 Under Oklahoma statutory law, a child witness “means an individual younger than thirteen (13) years of age who has been or will be called to testify in a criminal proceeding . . . .”128 In Virginia, during “any criminal proceeding, including preliminary hearings, the attorney for the Commonwealth or the defendant may apply for an order from the court allowing a certified facility dog to be present with a witness testifying before the court through in-person testimony or testimony

120 See id. § 15:284(b) (emphasis added). 121 See id. 122 See MICH.COMP.LAWS § 600.2163a(1)(g) (West 2019). According to the Michigan statute, the definition of “vulnerable adult” includes an “individual age 18 or over who, because of age, developmental disability, mental illness, or physical disability requires supervision or personal care or lacks the personal and social skills required to live independently.” Id. § 750.145m(u). 123 See MISS.CODE ANN. § 99-43-101(1)(a) (West 2019) (defining child as “any individual under the age of eighteen (18) years of age who must testify in any legal or criminal proceeding.”). 124 Id. § 99-43-101(2)(f) (allowing child to hold teddy bear while having dog at his or her side). 125 OKLA.STAT.ANN. tit. 12 § 2611.12(C) (2014) (emphasis added). 126 See id. 127 See id.; see also MISS.CODE ANN. § 99-43-101(2)(f). 128 OKLA.STAT.ANN. tit. 12 § 2611.12(D)(2). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 19 televised by two-way closed-circuit television . . . .”129 The court must find by a preponderance of the evidence that the “presence and use of the certified facility dog will not interfere with or distract from the testimony or proceedings.”130 The court must also find by a preponderance of the evidence that the “use of a certified facility dog will aid the witness in providing his testimony. . . .”131 Aiding a witness to testify clearly falls short of a necessity requirement. The application for use of the dog must be made “at least 14 days before the preliminary hearing, trial date, or other hearing to which the order is to apply.”132 Washington’s facility dog statute provides that courts “with an available courthouse facility dog must allow a witness under eighteen years of age, or who has a developmental disability,” as defined in the state’s developmental disabilities statute, “to use a courthouse facility dog to accompany them while testifying in court.”133 A court may, however, “allow any witness who does not meet the criteria [of being under eighteen or having a developmental disability] to use a courthouse facility dog, if available, to accompany them while testifying in court.”134 The applicable statute in the state of Washington requires a finding of necessity.135 In sum, in several states, such as Alabama, Colorado, and Hawaii, statutory age restrictions are not imposed, leaving discretion to the judge in a trial.136 Most state statutes, however, including Arizona, California, Florida, Idaho, Illinois, Louisiana, Mississippi, and Washington, specify that dogs generally must be allowed with children who are under eighteen at the time of testimony.137

129 VA.CODE ANN. § 18.2-67.9:1(B) (West 2018). The authors are unaware of any case where testimony with a dog was given by a closed-circuit system. Testimony through a two-way closed- circuit system is specified to be available for “an alleged victim who was 14 years of age or younger at the time of the alleged offense and is 16 years of age or younger at the time of the trial and to a witness who is 14 years of age or younger at the time of the trial.” Id. §18.2-67.9(a). 130 Id. § 18.2-67.9:1(C)(3). 131 Id. § 18.2-67.9:1(C)(2). 132 Id. at § 18.2-67.9:1(D). 133 WASH.REV.CODE § 10.52.110(1) (2019). 134 Id. § 10.52.110(2). 135 Id. § 10.52.110(4)(d) (stating that parties seeking to “use the assistance of a courthouse facility dog” must state in motion the “reasons why the courthouse dog is necessary to facilitate the witness’s testimony.”). 136 See ALA.CODE § 12.21-147-48 (2017); COLO.REV.STAT. § 16-10-404(2)(A) (West 2019); HAW.REV.STAT. 621-30(a) (2019). 137 See, e.g., ARIZ.REV.STAT.ANN. § 8-422(A), 13-4424(A) (2016); CAL.PENAL.CODE § 868.4(a) (West 2018); FLA.STAT. § 92.55(2) (2017); IDAHO CODE § 18-1506A (2017); 725 ILL. COMP.STAT.ANN. § 5/106B-5 (West 2015); LA.STAT.ANN. § 15:284(a) (2018); MISS.CODE ANN. § 99-43-101(1)(a) (West 2019); WASH.REV.CODE 10.52.110(2). 20 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Arkansas specifies that the witness can be eighteen or younger.138 Michigan and Virginia put the threshold at under sixteen, and Oklahoma is an outlier with a child for these purposes being under thirteen.139 Arizona, Arkansas, Colorado, Louisiana, Oklahoma, and Washington provide that the use of the dog depends on one being available, so that courts are not obligated to find dogs for counsel wishing to provide one for a witness.140

III. THRESHOLD ISSUES AND OBJECTIONS

A. Judicial Consideration of Training and Training Organizations

In many decisions, there was little or no discussion of the training that the dog in the case had received. However, in Devon D., the Connecticut Supreme Court referred to the dog used as a service dog that had not been certified, but had “reached the testing age of two [years].”141 Beginning at eight weeks old, the dog in Tohom was trained “‘to sense stress and anxiety and act in such a way to help reduce” such stress and anxiety “by raising herself up and offering herself to the person to be petted.”142 In Dye, the dog involved was trained by and lived with the prosecutor at Dye’s trial.143 In Chenault, the dog was described as “‘a trained service dog that will not disrupt the courtroom and has been inside the court in the past.”144 In Reyes, the dog’s handler testified that the dog had been trained as a service animal “from birth until he was nearly two years old for obedience and had gone through public access tests.”145 The handler had gone through a two-week

138 ARK.CODE ANN. § 16-43-1002(a) (West 2015). 139 See MICH.COMP.LAW § 600.2163(a)(1)(g); OKLA.STAT.ANN. tit. 12 § 2611.12(D)(2) (2014); VA.CODE ANN. § 18.2-67.91(b) (West 2018). 140 See ARIZ.REV.STAT.ANN. § 8-442(A) (2016); ARK.CODE ANN. § 16-43-1002(a)(3)(b), § 16-10-404(2)(a); COLO.REV.STAT. § 16-10-404(2)(a)(II)(B); LA.STAT.ANN. § 15:284(a) (2018); OKLA.STAT.ANN. tit. 12 § 2611.12(C); WASH.REV.CODE § 10.52.110(1). 141 State v. Devon D., 138 A.3d 849, 861 (Conn. 2016). See, e.g., People v. Riley, No. D070277, 2017 WL 2375504, at *5 (Cal. Ct. App. June 1, 2017); People v. Spence, 151 Cal. Rptr. 3d 374, 404 (Ct. App. 2012); State v. Nuss, 446 P.3d 458, 461 (Idaho Ct. App. 2019); State v. Hasenyager, 67 N.E.3d 132, 135 (Ohio Ct. App. 2016); State v. George, No. 27279, 2014 WL 7454798, at *4 (Ohio Ct. App. Dec. 31, 2014); State v. Davis, No. M2017-00293-CCA-R3, 2018 WL 1468819, at *3 (Tenn. Ct. App. Mar. 26, 2018). 142 People v. Tohom, 969 N.Y.S.2d 123, 127 (App. Div. 2013). 143 See State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013). In Dye, the golden retriever dog used was named Ellie. Id. Ellie was also used as a therapy dog in State v. Coria. State v. Coria, No. 66995-8-1, 2012 WL 1977439, at *1 (Wash. Ct. App. June 4, 2012). 144 People v. Chenault, 175 Cal. Rptr. 3d 1, 12–13 (Ct. App. 2014). This dog had been used in San Diego County for the “last several years.” Id. 145 State v. Reyes, 505 S.W.3d 890, 895 (Tenn. Crim. App. 2016). There are different types of public access tests, so exactly what the test established about the dog’s abilities is unclear. Public 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 21 program to learn how to be the dog’s handler. She testified that during a trial, Murch was to lie “very quiet and calm,” be “invisible,” and provide “comfort.”146 It is not clear how providing comfort or reducing stress can be trained, since this is something companion animals almost always do. Even though the dog had apparently received significant training, the handler had not received the amount of training expected for a service dog trainer, which generally lasts at least six months.147 In Gardner, the two-year old chocolate Labrador used at trial had been trained by Leader Dogs for the Blind.148

B. Legislative Perspectives on Training and the Growth of a Monopoly

The absence of training requirements for facility dogs in the case law is in sharp contrast to the developing statutory law regarding the use of facility dogs, where training and organizational affiliation requirements are often specified. Under Alabama’s facility dog statute, a facility dog must receive “[t]wo years of training and must have passed the same public-access test as a service dog.”149 Additional requirements include certification documentation from an assistance dog organization, a current annual certificate of health from an Alabama veterinarian, and “[p]roof of liability insurance in the minimum amount of five hundred thousand dollars access tests can generally be taken without more than a few weeks of formal training. The American Kennel Club’s Canine Good Citizen test, which is often included in therapy dog testing (which one of the authors (JE) passed with his dog), requires no specific training regimen, only that the dog be able to perform the commands required in the test. See What is CGC?, AM.KENNEL CLUB, https://www.akc.org/products-services/training-programs/canine-good-citizen/what-is- canine-good-citizen/ (last visited Dec. 12, 2019) [https://perma.cc/K9MD-GDQQ] (highlighting information on CGC test posted by AKC which allows CGC dog to be “always be welcomed and well-respected members of our communities”). In contrast, the International Association of Assistance Dog Partners requires that dogs “should be given a minimum of one hundred twenty (120) hours of schooling over a period of Six Months or more.” IAADP Minimum Training Standards for Public Access, INT’L ASS. OF ASSISTANCE DOG PARTNERS, https://www.iaadp.org/iaadp-minimum-training-standards-for-public-access.html (last visited Dec. 12, 2019) [https://perma.cc/K9UG-Y3V2]. 146 Reyes, 505 S.W.3d at 895. 147 See ADI Minimum Standards and Ethics, ASSISTANCE DOGS INT’L, available at http://www.childrenatrisk.eu/promise/wp-content/uploads/sites/4/2018/10/ADI-Minimum- Standards-Ethics-2018.pdf (last visited Jan. 18, 2020) [https://perma.cc/TDM6-KQG5]. Several weeks might be the amount of time a service dog user (i.e., someone with a disability) might need to be matched with certain kinds of service dogs. Id. Assistance Dogs International requires that “a training period of a minimum of 2 years is required before an Assistance Dog trainer can be regarded as fully qualified.” Id. at 21. 148 United States v. Gardner, No. 16-cr-20135, 2016 WL 5404207, at *7 (E.D. Mich. Sept. 26, 2016). 149 ALA.CODE § 12-21-148(a)(1)(a) (2017). Alabama also allows therapy dogs in courtrooms. Id. § 12-21-147. 22 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

($500,000).”150 A certified dog handler may also be required to accompany the witness and dog to the witness stand without the jury present.151 Furthermore, “if requested by either party in a legal proceeding, the court may examine and confirm the credentials of the certified facility dog and certified handler.”152 A separate Alabama statute provides for the courtroom use of a “registered therapy dog.”153 A “therapy dog organization” is defined as a “nationally registered 501(c)(3) nonprofit . . . that has been continuously active for a minimum of three years as a therapy dog organization with at least 100 active therapy dog teams nationwide and with active members in Alabama.”154

150 Id. § 12-21-148(1)(b), (c). 151 See id. § 12-21-148(c). The same provision regarding verification of credentials applies to a registered therapy dog. See id. § 12-21-147(a)(3). 152 Id. § 12-21-148(f) (explaining that such request is generally “[s]ubject to the Alabama Rules of Criminal Procedure”). 153 Id. § 12-21-148. Section 12-21-148 reads as follows:

A trained emotional support dog that has been tested and registered by a nonprofit therapy dog organization that sets standards and requirements for the health, welfare, task work, and oversight for therapy dogs and their handlers, including at a minimum, all the following:

1. A current annual certificate of health from an Alabama veterinarian on a form designed by the nonprofit therapy dog organization. 2. Markings identifying the dog as a therapy dog while working. 3. An identification card or badge to be prominently displayed on the handler. 4. A minimum of 18 months of recorded visits in institutions such as hospitals, libraries, and nursing homes providing therapy and emotional support to people of all ages, and must have passed a test administered by a nonprofit therapy dog organization demonstrating the dog and handler are qualified to access public buildings and interact with the public. 5. Proof of liability insurance in the minimum amount of five hundred thousand dollars ($500,000) for each therapy dog working in the court system which may be provided through a nonprofit therapy dog organization.

Id. 154 Id. § 12-21-148(a)(4). An “active member” applies to a therapy dog team that has “recorded visits at facilities including hospitals, nursing homes, libraries, and extended care facilities in the past 18 months.” Id. § 12-21-147(a)(1). The active-member requirement might preclude certain regional therapy dog organizations but would probably allow for dogs registered with Pet Partners (formerly Delta Society), Therapy Dogs International, and Alliance of Therapy Dogs (formerly Therapy Dogs Inc.). Pet Partners’ website states the organization has more than 13,000 registered teams making more than 3 million visits annually.” About Us, PET PARTNERS, https://petpartners.org/about-us (last visited Dec. 12, 2019) [https://perma.cc/E5GY-DM45]. Alliance of Therapy Dogs has been reported to have over 15,000 members nationwide. See Case Study: Alliance of Therapy Dogs, STERLING VOLUNTEERS, https://www.sterlingvolunteers.com/ resources/case-study/case-study-alliance-therapy-dogs/ (last visited Jan. 18, 2020) [https://perma. cc/36HL-WF3F]; see also About TDI, THERAPY DOGS INT’L, https://www.tdi-dog.org/About.aspx (last visited Jan. 18, 2020) [https://perma.cc/TDP3-YDNL] (pointing to how Therapy Dogs International’s website states that by 2012, organization had about 24,750 dog-handler teams). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 23

Two Arizona statutes define a facility dog.155 The statutes require that a facility dog be trained by one organization that is a member of another, and that both of them be concerned with “assistance dogs,” which would seem very likely to exclude most therapy dog organizations. This is because most therapy dogs are not trained by organizations but rather by individuals not organized as legal entities because national therapy dog organizations are generally not directly involved in the “training, placement and utilization” of assistance dogs, but rather with the registration of therapy dogs and handlers as teams that are members of the organization.156 The party seeking to use the dog “must file a notice with the court that includes the certification of the facility dog, the name of the person or entity who certified the dog and evidence that the facility dog is insured.”157 The Arkansas Statute on certified facility dogs provides that such a dog is one that has the following qualifications:

(A) Graduated from a program of an assistance dog organization that is a member of Assistance Dogs International or a similar nonprofit organization that attempts to set the highest standard of training for dogs for the purpose of reducing stress in a child witness by enhancing the ability of the child witness to speak in a judicial proceeding by providing emotional comfort in a high stress environment;158

155 See ARIZ.REV.STAT.ANN. §§ 8-422(d), 13-4442(d) (2016).

[A] graduate of an assistance dog organization that is a member of an organization or entity whose main purpose is to improve the areas of training, placement and utilization of assistance dogs, staff and volunteer education and to establish and promote standards of excellence in all areas of assistance dog acquisition, training and partnership.

Id. 156 About TDI, supra note 154 (explaining that organization is dedicated “to regulating, testing and registration of therapy dogs” who must be tested and evaluated by a Certified TDI Evaluator); About Alliance of Therapy Dogs, ALLIANCE OF THERAPY DOGS, https://www.therapydogs.com/ alliance-therapy-dogs/ (last visited Jan. 18, 2020) [https://perma.cc/42HN-ZJCU] (pointing to website of Alliance of Therapy Dogs states that lists “an international registry of therapy dog teams,” and also that it “doesn’t require formal training.”). Pet Partners’ website describes the registration of volunteer teams and does provide training “for the human end of the leash (the Pet Partners Handler Course).” How Our Program is Different, PET PARTNERS, www.petpartners.org /about-us/our-programs-different/ (last visited Jan. 18, 2020) [https://perma.cc/X3P6-P62J] (pointing to how such training is given primarily to individuals, so presumably the institutional trainer requirement of Ariz. Rev. Stat. Ann. §§ 8-422(d), 13-4442(d) would not be satisfied). 157 ARIZ.REV.STAT.ANN. §§ 8-442(a), 13-4442(a). 158 ARK.CODE ANN. § 16-43-1002(a) (West 2015). It appears, from the language that ADI or a similar organization “attempts to set the highest standard of training for dogs for the purpose of reducing stress,” that the Arkansas legislature assumes that ADI standards contain training of dogs 24 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

(B) Received two (2) years of training; and (C) Passed the same public access test as a service dog . . . .159

The credentials of the dog must be presented before it is allowed in an Arkansas courtroom, along with proof that the dog is “adequately insured.”160 The party desiring to use the dog must certify that “a relationship has been established between the child witness and the certified facility dog in anticipation of testimony” and that “the presence of the certified facility dog may reduce anxiety experienced by the child witness while testifying in the criminal trial or hearing.”161 Similar to Alabama, the California facility dog statute allows for the use of a “therapy dog or facility dog” in courtrooms and defines each separately.162 The Colorado facility dog statute defines a facility dog as “a dog that is a graduate of an assistance dog organization that is accredited by an internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training, and placement.”163

that is somehow supposed to reduce stress. Those standards, however, do not mention stress other than that the dog itself must be able to tolerate “a high level of stress.” ADI Minimum Standards and Ethics, supra note 147, at 2, 10–11. Rather, under the general standards for an Assistance Dog, it is stated that such a dog “must be temperamentally screened for emotional soundness and working ability.” Id. 159 ARK.CODE ANN. § 16-43-1002(a)(1)(A)–(C) (emphasis added). 160 Id. at § 16-43-1002(c). 161 Id. The relationship of the dog with the child is to be created in anticipation of testimony might nonsensically exclude a dog whose relationship with the child was established as an aspect of therapy outside of the legal process. 162 CAL.PENAL CODE § 868.4 (2018).

“Facility dog” means a dog that has successfully completed a training program in providing emotional comfort in a high-stress environment for the purpose of enhancing the ability of a witness to speak in a judicial proceeding and reducing his or her stress level, provided by an assistance dog organization accredited by Assistance Dogs International or a similar nonprofit organization that sets standards of training for dogs, and that has passed a public access test for service animals.

“Therapy dog” means a dog that has successfully completed training, certification, or evaluation in providing emotional support therapy in settings including, but not limited to, hospitals, nursing homes, and schools, provided by the American Kennel Club, Therapy Dogs Incorporated, or a similar nonprofit organization, and has been performing the duties of a therapy dog for not less than one year.

Id. 163 COLO.REV.STAT. § 16-10-404(1)(a) (West 2019). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 25

Florida, similarly to Alabama and California, defines “facility dog” and “therapy animal” separately, requiring that each be “trained, evaluated, and certified . . . pursuant to industry standards.”164 A facility dog must also be able to provide “unobtrusive emotional support to children and adults in facility settings.”165 Florida further provides that a therapy animal must be “certified as a therapy animal pursuant to industry standards by an organization that certifies animals as appropriate to provide animal therapy.”166 Hawaii, in addition to requiring that a facility dog be “a graduate of an assistance dog organization that is accredited by Assistance Dogs International or a similar internationally recognized organization” that accredits assistance dog organizations, states that the dog must “be specially trained to provide emotional support to witnesses testifying in judicial proceedings without causing a distraction during the proceedings.”167 Before a facility dog may be used in a judicial proceeding, the moving party is to file a motion certifying the following to the court: “(1) The credentials of the facility dog; (2) That the facility dog is adequately insured; and (3) That a relationship has been established between the witness and the facility dog.”168 Idaho’s facility dog statute defines a “facility dog” similarly to Colorado’s Statute as a “dog that is a graduate of an assistance dog organization that is a member of assistance dogs international or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training and placement.”169 Thus, the Idaho statute presumes that an organization similar to Assistance Dogs International may exist.170 The statute is sufficiently specific as to exclude therapy dogs and probably all therapy dog organizations.171 It would also exclude service dog organizations operating independently of an umbrella organization such as ADI.172 Illinois requires that a facility dog be “a graduate of an assistance dog organization that is a member of Assistance Dogs International.”173 No

164 FLA.STAT. § 92.55(5)(b) (2017). 165 Id. § 92.55(5)(b)(1). 166 Id. § 92.55(5)(b)(2). 167 HAW.REV.STAT. § 621-30 (2019). 168 Id. § 621-30(c). 169 IDAHO CODE § 19-3023(3) (2017). 170 Id. 171 Id. 172 Id. 173 725 ILL.COMP.STAT. § 5/106B-10 (West 2015). 26 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV additional or alternative training is mentioned.174 Arguably, under such language, a dog trained to be a hearing dog, a mobility impairment dog, or trained for any other kind of assistance work recognized by programs that are members of ADI would appear to satisfy the statutory requirement.175 Under Louisiana statutory law, a facility dog is:

[A] dog that is certified and a graduate of an assistance dog organization that is accredited by Assistance Dogs International or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training, and placement. A “facility dog” is one that is specially trained to provide emotional support to witnesses testifying in judicial proceedings without causing a distraction during the proceedings.176

In Louisiana, a “party seeking the use of a facility dog must file a notice with the court that includes the certification of the dog, the name of the person or entity who certified the dog, and evidence that the dog is insured.”177 Michigan statutory law requires that a “courtroom support dog” be “[t]rained and evaluated as a support dog pursuant to the Assistance Dogs International Standards for guide or service work and [] is repurposed and appropriate for providing emotional support to children and adults within the court or legal system or that has performed the duties of a courtroom support dog . . . .178 One could conceivably have a dog trained to ADI standards without having it trained by an ADI member organization. Exactly how a dog is “repurposed” to provide emotional support within the legal system is unclear. Note that dogs used in courtrooms prior to September 27, 2018, are grandfathered in even if they do not satisfy the ADI standards requirement.179 A notice of intent to use a support dog is required if a dog is to be used at trial, which must name the support dog and request that the “courtroom support dog sit with the witness when the witness is called upon to testify

174 Id. 175 Id. 176 LA.STAT.ANN. § 15:284(e) (2018). 177 Id. § 15:284(c). 178 MICH.COMP.LAWS § 600.2163a(1)(a) (West 2019). 179 Id. § 600.2163a(1)(a). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 27 during trial.”180 Significantly, a “court must rule on a motion objecting to the use of a . . . courtroom support dog before the date when the witness desires to use the . . . courtroom support dog.”181 This puts a significant burden on defense counsel (the party most likely to have an objection to use of a courtroom support dog) to become quickly aware of the risks to the defendant upon responding to the motion.182 In any proceeding in which a child testifies, Mississippi allows a “properly trained facility animal or comfort item or both to be present inside the courtroom or hearing room.”183 Oklahoma, in its provision concerning certified therapeutic dogs, defines one as:

[A] dog which has received the requisite training or certification from the American Kennel Club, Therapy Dogs Incorporated, or an equivalent organization to perform the duties associated with therapy dogs in places such as hospitals, nursing homes, and other facilities where the emotional benefits of therapy dogs are recognized. Prior to the use of a certified therapeutic dog the court shall conduct a hearing to verify:

a. the credentials of the certified therapeutic dog,

180 Id. § 600.2163a(5). 181 Id. 182 See People v. Myers, No. 342098, 2019 WL 2478006, at *3 (Mich. Ct. App. June 13, 2019) (showing that witness could testify with her own service dog despite no notice given of witness’s intent). “[T]he trial court allowed the witness to explain to the jury that she required a service animal for her disability, and that it was not for emotional support.” Id. at *4. The appellate court concluded that in light of the explanation for the service dog, “because the witness’s medical issues were not related to any issues involved in the case, the presence of the dog would not deprive the jury of determining her credibility.” Id. There was no reference to or discussion of the State’s facility dog statute nor any recognition that analogies to the statute might be appropriately considered. Id.; see also COLO.REV.STAT. § 16-10-404(5) (West 2019) (providing nothing in state’s facility dog statute “precludes or interferes with the rights of a qualified individual with a disability who is accompanied by a service animal pursuant to state or federal law.”). Whether this means that Colorado courts can be expected to accept service dogs accompanying their masters during testimony is unclear. 183 MISS.CODE ANN. § 99-43-101(2)(f) (West 2019). Under § 43-6-153(e), “[t]he term ‘support animal’ includes service animal . . . therapeutic animals, comfort animals and facility animals. However, the term ‘support animal’ does not mean an animal considered as a pet, and is limited to a dog or miniature horse.” The latter sentence applies generally to support animals, which includes facility animals (not otherwise defined in Miss. Code Ann. § 99-43-101(2)(f)), and raises the possibility that a facility animal for courtroom work could arguably be a miniature horse. The authors note, however, that the use of a miniature horse, even a highly trained one such as may be used in guide work, would present different logistical problems than the use of a dog in a courtroom. 28 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

b. the certified therapeutic dog is appropriately insured, and c. a relationship has been established between the child witness and the certified therapeutic dog in anticipation of testimony . . . .184

This reference to the American Kennel Club (AKC) is curious because, although the AKC website on therapy dogs indicates that the organization has titles, the website specifies that “AKC does not certify therapy dogs; the certification and training is done by qualified therapy dog organizations. The certification organizations are the experts in this area and their efforts should be acknowledged and appreciated.”185 The AKC states that those organizations provide insurance individual for members.186 The requirement of an established relationship between a child witness and an accompanying dog suggests that the legislature anticipated that the certified therapeutic dog would begin to accompany the child during interviews or preliminary stages of a prosecution.187 It should be noted, however, that if the dog has an “established relationship” with a child but the dog does not meet any other qualifications, even a well-behaved dog would presumably be excluded from a courtroom. Under Virginia’s statute, a “certified facility dog” is:

[A] dog that (i) has completed training and been certified by a program accredited by Assistance Dogs International or by another assistance dog organization that is a member of an organization whose main purpose is to improve training, placement, and utilization of assistance dogs and (ii) is accompanied by a duly trained handler.188

The court must find by a preponderance of the evidence that the “dog to be used qualifies as a certified facility dog.”189 The statute also provides that “[n]othing contained in this section shall prevent the court from

184 OKLA.STAT.ANN. tit. 12 § 2611.12(D)(1) (2014). 185 See Therapy Dog Program, AMERICAN KENNEL CLUB, http://www.akc.org/events/title- recognition-program/therapy/organizations/ (last visited Oct. 24, 2019) [https://perma.cc/GBB8- BCRH] (listing organizations). 186 Id. 187 See OKLA.STAT.ANN. tit. 12 § 2611.12(D)(1). 188 VA.CODE ANN. § 18.2-67.9:1(a) (West 2018). 189 Id. § 18.2-67.9:1(c)(1). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 29 providing any other accommodations to a witness as provided by law.”190 Whether such language could allow for a non-ADI dog is doubtful.191 Under Washington’s statute, a courthouse facility dog is:

[A] dog that: (i) Has graduated from a program of an assistance dog organization that is accredited by a recognized organization whose main purpose is to grant accreditation to assistance dog organizations based on standards of excellence in all areas of assistance dog acquisition, training of the dogs and their handlers, and placement; and (ii) was specially selected to provide services in the legal system to provide quiet companionship to witnesses during stressful legal proceedings thereby enabling them to better engage with the process.192

Before the dog is introduced into the courtroom, the party seeking to use the dog must file a motion setting forth the dog’s credentials, its insurance, that “a relationship has been established between the witness and the courthouse facility dog in anticipation of testimony, and the reasons why the dog is necessary.”193 Washington uses nearly identical “main purpose” language as is found in the statutes of Arizona, Colorado, Idaho, Louisiana, and Virginia.194 Also, Arkansas, Hawaii, and Oklahoma, Washington have an established-relationship requirement.195 In sum, Arkansas, Hawaii, Idaho, Louisiana, and Virginia specifically state that the dog must be trained by ADI or a similar organization.196 Illinois does not even allow for a similar organization to train the dog.197 Michigan requires that a dog be trained to ADI standards.198 Alabama, Arizona, Colorado, and Washington do not specifically refer to

190 Id. § 18.2-67.9:1(f). 191 Id. § 18.2-67.9:1. 192 WASH.REV.CODE § 10.52.110(9)(b) (2019). 193 Id. at § 10.52.110(4). 194 See ARIZ.REV.STAT.ANN. §§ 8-422(d), 13-4442(d) (2016); COLO.REV.STAT. § 16-10- 404(1)(a) (West 2019); IDAHO CODE § 19-3023(3) (2017); LA.STAT.ANN. § 15:284(e) (2018); VA.CODE ANN. § 18.2-67.9:1(a) (West 2018). 195 See ARK.CODE ANN. § 16-43-1002(c)(3) (West 2015); HAW.REV.STAT. § 621-30(c) (2019); OKLA.STAT.ANN. tit. 12 § 2611.12(D)(1) (2014); WASH.REV.CODE § 10.52.110(4). 196 See ARK.CODE ANN. § 16-43-1002(a)(1)(A); HAW.REV.STAT. § 621-30(a); IDAHO CODE § 19-3023(3); LA.STAT. ANN. § 15:284(e); VA.CODE ANN. § 18.2-67.9:1(a). Since Arkansas allows the handler to be trained by ADI, the American Kennel Club, Therapy Dogs Inc., “or equivalent organization,” arguably a national therapy dog organization could be considered, as to the dog, an appropriate training organization. ARK.CODE ANN. § 16-43-1002(a)(1)(A). 197 See 725 ILL.COMP.STAT.ANN. 5/106B-10 (West 2015). 198 See MICH.COMP.LAWS § 600.2163a(1)(a) (West 2019). 30 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

ADI, but do require that a facility dog be trained by an “assistance dog organization.”199 This generic term is likely intended to be specific to ADI without naming it. Alabama, however, has a separate statute allowing a “registered therapy dog” into a courtroom as well.200 In sum, ten states—Arizona, Arkansas, Colorado, Hawaii, Idaho, Illinois, Louisiana, Michigan, Virginia, and Washington—practically see ADI members as the only source for a dog that could accompany a child or vulnerable witness during testimony.201 In contrast, four states—Alabama, California, Florida and Oklahoma—seem fully receptive to therapy dogs as

199 See ALA.CODE § 12-21-148(a)(1) (2017); ARIZ.REV.STAT.ANN. §§ 8-422(d), 13- 4442(d); COLO.REV.STAT. § 16-10-404; WASH.REV.CODE § 10.52.110(9)(b) (2019). 200 See ALA.CODE § 12-21-147(a) (defining “registered therapy dog” and “therapy dog organization.”). Alabama’s facility dog statute curiously provides for the moving party to “file a notice of intent to use the registered therapy dog,” presumably a drafting error resulting from both statutes being composed at the same time. Id. § 12-21-148(g). 201 ARIZ.REV.STAT.ANN. §§ 8-422(d), 13-4442(d) (“graduate of an assistance dog organization that is a member of an organization or entity whose main purpose is to improve the areas of training, placement and utilization of assistance dogs.”); ARK.CODE ANN. § 16-43- 1002(a)(1)(A) (“Graduated from a program of an assistance dog organization that is a member of Assistance Dogs International or a similar nonprofit organization.”); COLO.REV.STAT. § 16-10- 404(1)(a) (“dog that is a graduate of an assistance dog organization that is accredited by an internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations.”); HAW.REV.STAT. § 621-30 (2019) (“a graduate of an assistance dog organization that is accredited by Assistance Dogs International or a similar internationally recognized organization.”); IDAHO CODE § 19-3023(3) (2017) (“a graduate of an assistance dog organization that is a member of assistance dogs international or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations.”); 725 ILL.COMP.STAT.ANN. § 5/106B-10 (West 2015) (“a graduate of an assistance dog organization that is a member of Assistance Dogs International.”); LA.STAT.ANN. § 15:284(e) (2018) (“a graduate of an assistance dog organization that is accredited by Assistance Dogs International or a similar internationally recognized organization whose main purpose is to grant accreditation to assistance dog organizations.”); MICH.COMP.LAWS § 600.2163a(1)(a) (West 2019) (“trained and evaluated as a support dog pursuant to the Assistance Dogs International Standards for guide or service work.”); VA.CODE ANN. § 18.2-67.9:1(a) (West 2018) (“dog that (i) has completed training and been certified by a program accredited by Assistance Dogs International or by another assistance dog organization that is a member of an organization whose main purpose is to improve training, placement, and utilization of assistance dogs.”); WASH.REV. CODE § 10.52.110(9)(b) (“graduated from a program of an assistance dog organization that is accredited by a recognized organization whose main purpose is to grant accreditation to assistance dog organizations . . . .”). If an organization must be a member of Assistance Dogs International to train a dog that can be used in a courtroom, judges may at some point be asked to accept dogs that have been trained by organizations that are not full members of ADI, but rather candidate members. It may be worth noting that when the Department of Veterans Affairs (“VA”) proposed rules specifying that the agency’s funding of service dogs for veterans would be restricted to dogs trained by ADI member organizations, in responding to comments on the draft, the VA specified that only full members of ADI would be qualified to perform such training, not candidate members of the organization. See Service Dogs, 77 Fed. Reg. 54368, 54372 (Oct. 5, 2012). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 31 well,202 although Mississippi and the territory of Guam, absent detailed statutory systems on facility dogs or case law, may also be in this category.203 Hawaii, Louisiana, and Michigan require special training (“repurposing” in Michigan) for working with testifying witnesses.204 Although service dogs undergo more intensive training than therapy dogs, this may not be true of dogs trained specifically for courtroom work. It is worth considering how the Courthouse Dogs Foundation, the leading advocate for facility dogs receiving service-dog training, describes the training of a facility dog.205 Thus, the two-year period involves eighteen months of fostering and perhaps only six months working with an assistance dog trainer.206 Many therapy dogs receive a similar amount of training.207 Many service dogs,

202 See ALA.CODE §§ 12-21-148(a)(1)(b), 12-21-147(a)(3) (“Documentation showing that the certified facility dog has graduated from an assistance dog organization” but also “trained emotional support dog that has been tested and registered by a nonprofit therapy dog organization . . . .”); CAL.PENAL CODE § 868.4 (2018) (“therapy dog or facility dog”); FLA.STAT. § 92.55(5)(a) (“testify with the assistance of a therapy animal or facility dog”); OKLA.STAT.ANN. tit. 12 § 2611.12(D)(1) (2014) (“dog which has received the requisite training or certification from the American Kennel Club, Therapy Dogs Incorporated, or an equivalent organization”). 203 MISS.CODE ANN. § 99-43-101(2)(f) (West 2019) (“properly trained facility animal,” term included under “support animal” in Miss. Code Ann. § 43-6-153(e), which also covers service and therapeutic animals”); 10 GUAM CODE ANN. § 34401(i)(2)(B)(i) (2018) (“trained and used to facilitate testimony in minors or mentally disabled within a courtroom setting”). 204 HAW.REV.STAT. § 621-30; LA.STAT.ANN. § 15:284(e) (2018); MICH.COMP.LAWS § 600.2163a(1)(a) (West 2019). 205 See COURTHOUSE DOGS FOUND. IN COLLABORATION WITH W. REG’L CHILDREN’S ADVOCACY CTR., Facility Dogs at Children’s Advocacy Centers and in Legal Proceedings: Best Practices 1, 29 (2015), available at http://www.srcac.org/wp-content/uploads/2017/10/facility- dog-best-practices.pdf (last visited Jan. 20, 2020) [https://perma.cc/S5ER-WZ6F].

Most assistance dogs are “puppy raised” during the first 18 months of their life by either a family or a prison inmate participating in an accredited training program. For about six months before a facility dog is placed in your office, they are trained by service dog trainers at an assistance dog school. It is during these six months of training that the dog matures into his final temperament, allowing the professional trainers to tell what the dog will be good at and what he will enjoy doing . . . . At around 24 months of age, a facility dog is mature and trained and ready to go to work in your office.

Id. 206 Id. 207 See Elizabeth Spruin & Katarina Mozova, Dogs in the Criminal Justice System: Consideration of Facility and Therapy Dogs, 5 PET BEHAV. SCI. 1, 6 (2018), available at https://www.uco.es/ucopress/ujs/index/php/pet/article/view/10084/10038 [https://perma.cc/K34H- 46KM] (arguing that dogs appearing with witnesses should have service-dog levels of training because “therapy dogs are not sociali[z]ed and trained to the same standards as facility dogs leading to a higher likelihood that a therapy dog will become distressed and so removed.”). They would not exclude therapy dogs altogether, stating that such dogs “could be introduced into some aspects of the legal process but only following a thorough selection process; they should never be allowed to enter a police interview, or a courtroom.” Id. at 7. But see C.M. Cavalli et al., Are Animal 32 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV including all guide dogs, receive much more. Many of the most important commands for a dog’s use in a courtroom (i.e., heel, sit, lie down, lie down- stay, leave it) are required for certification or registration of both service and therapy dogs, and indeed are commands required for receipt of the American Kennel Club’s Canine Good Citizen award, which can be earned by pets.208 Further, therapy dogs are trained and tested on interacting with diverse types of individuals from various populations, including children and people with disabilities, whereas service-dog training often involves teaching the dog to work with individuals having a specific type of disability and are usually only assigned to a single individual, perhaps for their entire lives.209 Of those states with an established-relationship requirement—Arkansas, Hawaii, Oklahoma, and Washington, only Oklahoma appears receptive to therapy dogs.210 There is no need for a program to specify only one type of training that a dog must successfully complete in order to be allowed to work with witnesses. While service dogs are generally trained to work with a specific handler and with people with specific disabilities as a result of their specialized training, therapy dogs may be trained to have multiple interactions with many different people. For example, a therapy dog would be better suited than a service dog for a visit to numerous patients in a hospital, during which the dog may move from one patient to another. A dog working with a witness is something of a hybrid of these two experiences, where the dog is not solely devoted to a single individual, but rather spends considerable time with a sequence of witnesses. This creates a more intense and much longer relationship than that of the typical therapy dog encounter, particularly where there is a requirement for a relationship with the witness to be established prior to testimony. The witness and the dog may see each other during police and prosecutorial interviews, during

Assisted Activities Dogs Different from Pet Dogs? A Comparison of Their Sociocognitive Abilities, 23 J. VETERINARY BEHAV. 76, 80–81 (2018), available at https://www.sciencedirect.com/science/ article/pii/S155878717301508 [https://perma.cc/Q47T-NNTM] (finding that dogs trained in animal-assisted activities are distinguishable from pet dogs). They are different from pet dogs in terms of sociability, attentiveness to human faces (gazing longer than pet dogs), and impulsiveness. Id. 208 Ensminger, supra note 2, at 106–07 (table showing substantial overlap in commands for ADI-trained service dogs, TDI-registered therapy dogs, and AKC Canine Good Citizens). 209 See Regina Schoenfeld-Tacher et al., Public Perceptions of Service Dogs, Emotional Support Dogs, and Therapy Dogs, 14 INT’L J. ENVTL.RESEARCH &PUB.HEALTH 642, 643 (2017) (explaining that therapy dogs work with multiple clients); see also Ensminger, supra note 2, at 106– 08 . 210 ARK.CODE ANN. § 16-43-1002(c)(3) (West 2015); HAW.REV.STAT. § 621-30(c)(3) (2019); OKLA.STAT.ANN. tit. 12 § 2611.12(D)(1)(c) (2014); WASH.REV.CODE § 10.52.110(4)(c) (2019). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 33 therapy sessions, and in preparation for the experience of being in the courtroom. Training adapted from both standard service and therapy dog programs is therefore appropriate. While this has been done for service dogs by the Courthouse Dogs Foundation, it has also been accomplished with therapy dogs.211 For instance, the K-9th Circuit Program in Florida, created in the Ninth Judicial Circuit Court of Florida by a judge, uses both therapy dog teams (from a provider, Companions for Courage, that certifies teams with Therapy Dogs International), as well as a dog trained by a service dog provider, Canine Companions for Independence.212 There may be situations where special training that is neither common for service dogs or therapy dogs would be optimal. One therapy dog in Florida’s K-9th Circuit Program, who is deaf, has learned to recognize approximately 100 signs in American Sign Language and can thus be responsive to a witness using ASL.213 This allows for those who have hearing impairments to build a special connection with the dog, who has a similar disability and needs to understand non-verbal commands.214 The authors believe the present case-by-case evaluation by judges should be allowed to continue, and the prosecution should have the burden of establishing that a dog has been adequately trained or has demonstrated the ability to behave and function appropriately in a courtroom.

C. Handler Qualification

Neither cases nor statutes focus nearly as much on the qualification of a dog’s handler as on the training and certification of the dog.215 In State v. Reyes, the service dog’s handler was trained as a forensic interviewer, but had only undergone a two-week program to learn how to be the dog’s handler, “which training she maintained each year . . . .”216 In State v. Devon

211 See COURTHOUSE DOGS FOUND., https://courthousedogs.org/ (last visited Jan. 18, 2020) [https://perma.cc/57D8-Y3HC]. 212 See K-9th Circuit Program, NINTH JUD.CIR CT. OF FLA., https://www.ninthcircuit.org/ about/programs/k9th-circuit-program (last visited Oct. 19, 2019) [https://perma.cc/ZW5J-APUY] (providing forms for applying for use of dog with witness and order governing the program). The program has been operating since 2014, and both the therapy dogs and their handlers, and the service dog team, are evaluated periodically. Id. 213 See Christie Zizo, Karl the Deaf Courthouse Therapy Dog Helps Kids Testify, DOGSTER (May 19, 2016), https://www.dogster.com/lifestyle/karl-the-deaf-courthouse-therapy-dog-helps- kids-testify [https://perma.cc/86PL-FPXR]. 214 Id. 215 See supra Section III.A – III.B. 216 505 S.W.3d 890, 895 (Tenn. Crim. App. 2016). 34 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

D., the social worker for the child witness had begun working with the child before the trial, and described herself as a “dog handler child therapist.” 217 Alabama’s facility dog statute provides that a certified handler is to have “been registered by a qualifying therapy dog organization” as well as to have been trained “on the protocols and policies of legal proceedings . . . and the role of the registered therapy dog and registered handler to assure there is no interference with the collection of evidence and testimony or the administration of justice.”218 The state’s emotional support dog statute further provides that a handler must wear an “identification card or badge to be prominently displayed . . . .”219 The therapy dog handler is, with his or her dog, to be qualified by a “nonprofit therapy dog organization” as entitled “to access public buildings and interact with the public.”220 National therapy dog organizations generally have qualification tests with both a public access element and an element demonstrating the dog will interact positively with the sorts of individuals that therapy dogs are likely to encounter in hospitals, schools, and other institutions.221 Passing such a test, however, is not the only way to become a therapy dog handler in Alabama, as the state has a unique provision allowing any dog with the appropriate temperament to become a courtroom dog.222 This provision allows for the possibility that a dog of appropriate temperament could be used in a courtroom, even without a formal affiliation with either a therapy or assistance dog organization. A “registered handler” is defined as:

A volunteer registered by the court system as a therapy dog handler who has not been convicted of sexual, animal, or domestic abuse or any felony, who has been registered by a

217 138 A.3d 849, 861–62 (Conn. 2016). 218 See ALA.CODE §§ 12-21-148(a)(2), (c) (2017). The same provision regarding verification of credentials applies to a registered therapy dog. Id. But see ADI Minimum Standards and Ethics, supra note 147, at 10–11. ADI Facility Dogs Training Standards do not specify training regarding the collection of evidence for handlers. Id. 219 ALA.CODE § 12-21-147(a)(3). 220 Id. 221 See Therapy Dogs International (TDI) Testing Guidelines, THERAPY DOGS INT’L, https://www.tdi-dog.org/HowToJoin.aspx?Page=New+TDI+Test (last visited Oct. 24, 2019) [https://perma.cc/63N2-TMRE]. 222 ALA.CODE § 12-21-147(a)(3)(b) (“a handler with a dog having the appropriate temperament may be tested by a certified Alabama law enforcement canine officer with a minimum of two years’ experience for the ability to be registered as a therapy dog for use in certain legal proceedings.”). Curiously, the Alabama legislature may have anticipated resistance from one or more therapy dog organizations regarding such a use of a registered therapy dog, since the statute provides that “[r]egistered therapy dogs and handlers shall not be dismissed from any therapy dog organization for following the rules and procedures in this section or those set by the court.” Id. § 12-21-147(n). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 35

qualifying therapy dog organization, and has taken an oath of confidentiality. An officer of the court may be a handler only if there is no expense to the state.223

Arkansas also specifies training for the handler, defining a “certified handler” as

A person who has received training from an organization accredited by Assistance Dogs International, the American Kennel Club, Therapy Dogs Incorporated, or an equivalent organization on offering the person’s animal for assistance purposes and has received additional training on the protocols and policies of courts, the expected roles of the person’s animal assistance team, and the expected interaction so as not to interfere with the collection of evidence or the effective administration of justice . . . .224

Thus, a handler who has received training from ADI, TD Inc., or an equivalent organization (presumably a guide dog organization or other national therapy dog organizations), would have to get “additional training on the protocols and policies of courts, the expected roles of the person’s animal assistance team, and the expected interaction . . . .”225 As a result, the dog and the trainer do not necessarily need to have the same objectives in their training. Thus, a dog trained by an ADI-member organization could presumably be paired with a handler whose experience in handling was obtained from a therapy dog organization. This may result in a situation where dogs will be trained by ADI members as a commercial activity, but made available to purchase, perhaps even by inexperienced individuals interested in providing such facility dog services in various regions of the country.226 In moving for the use of a therapy or facility dog in California, the moving party is to include information about the “training of the therapy or

223 Id. § 12-21-147(a)(2). 224 See ARK.CODE ANN. § 16-43-1002(a)(2) (West 2015). 225 See id. 226 See J. A. Serpell, et al., Welfare Considerations in Therapy and Assistance Animals, in ANIMAL-ASSISTED THERAPY:THEORETICAL CONSIDERATIONS AND GUIDELINES FOR PRACTICE 481, 496 (Aubrey Fine, 3rd. ed. 2010) (explaining importance of training therapy dogs). Inexperienced or minimally trained handlers can have a deleterious effect on the performance of a therapy or assistance animal arising from such issues as “being ignored or neglected, given inappropriate or ill-timed commands, and punished for failing to respond to these commands, rewarded at inappropriate times, and so on.” Id. 36 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV facility dog handler.”227 Since California permits two types of trained dogs,228 the definition of “handler” has to consider both types.229 Virginia provides that a “certified facility dog” is to be “accompanied by a duly trained handler.”230 Washington’s statute defines a “certified handler” as “a person who (i) was trained to handle the courthouse facility dog by the assistance dog organization that placed the dog and (ii) is a professional working in the legal system who is knowledgeable about its practices.”231 This requires that the handler and the dog have a connection with the same organization, which probably has to train both, but also that the handler be a “professional working in,” though not necessarily for, “the legal system.” The Courthouse Dogs Foundation, headquartered in the state of Washington, specifies that each of its dogs “is handled by a professional working in the legal field, who has been individually trained by the accredited assistance dog organization.”232 Handlers, according to the organization’s website “include victim advocates, forensic interviewers, detectives, prosecuting attorneys, Guardians Ad Litem, therapists, and other professionals.”233 The last two categories are not necessarily “in the legal field,” so perhaps the assumption is that such individuals would have extensive experience with courts (as some therapists do).234

D. Insurance Requirements

No decision of which the authors are aware has required that a dog be insured before accompanying a witness. However, such a requirement is becoming increasingly common in statutory law. Both Alabama’s facility-

227 See CAL.PENAL CODE § 868.4(b)(2) (2018). 228 See supra note 162 and accompanying text. 229 See CAL.PENAL CODE § 868.4(h)(3) (2018).

“Handler” means a person who has successfully completed training on offering an animal for assistance purposes from an organization accredited by Assistance Dogs International, Therapy Dogs Incorporated, or a similar nonprofit organization, and has received additional training on policies and protocols of the court and the responsibilities of a courtroom dog handler.

Id. 230 See VA.CODE ANN. § 18.2-67.9:1(a) (West 2018). 231 See WASH.REV.CODE § 10.52.110(9)(a) (2019). 232 See Standards for a Successful Courthouse Dog® Program, COURTHOUSE DOGS FOUND., https://courthousedogs.org/getting-started/best-practices/ (last visited Jan 20, 2020) [https://perma. cc/4BWN-QE7E]. 233 Id. 234 Id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 37 dog statute and its courtroom-therapy-dog statute require that the animal come with “[p]roof of liability insurance in the minimum amount of five hundred thousand dollars ($500,000).”235 Arizona’s facility-dog statutes require the party seeking to use a dog to file a notice with the court including “evidence that the facility dog is insured.”236 The Arkansas statute specifies that a motion to use such a dog must include information that “the certified facility dog is adequately insured . . . .”237 The applicable statutes in Hawaii, Louisiana, Oklahoma, and Washington also require adequate insurance.238 While the Florida statute regarding therapy animals and facility dogs does not include an insurance requirement, one judicially created certified therapy dog program in Florida specifies that a therapy animal or facility dog used in a courtroom must:

[c]arry a minimum one million dollars ($1,000,000) in liability insurance with a rider that includes therapy animals/facility dogs on the premises of the courthouse facility and naming the appropriate county (Brevard or Seminole County) as a named insured.239

Such a rider would not likely be provided by a national therapy dog organization. Proof of liability insurance may be a problem if the handler is not a member of an assistance or therapy dog organization that offers such insurance to members.240 The Courthouse Dogs Foundation specifically

235 ALA.CODE §§ 12-21-148(a)(1)(d), (a)(3)(5) (2017). See Resolution of the Board of Directors of the National District Attorneys Association, NAT’L DIST.ATT’YS ASS. (Nov. 19, 2011), http://www.ncdsv.org/images/NDAA_CourthouseOrComfortDogs_BofDResolution_11- 19-2011.pdf [https://perma.cc/76T2-PSHD]. The National District Attorneys Association passed a resolution on “the use of ‘Courthouse’ or ‘Comfort’ Dogs” on November 19, 2011, specifying that “[t]he dog should carry a liability insurance policy with limits of not less than $1,000,000.” Id. 236 ARIZ.REV.STAT.ANN. §§ 8-422(a), 13-4442(a) (2016). 237 ARK.CODE ANN. § 16-43-1002(c)(2) (West 2015). 238 HAW.REV.STAT. § 621-30(c)(2) (2019); LA.STAT. ANN. § 15:284(c); OKLA.STAT.ANN. tit. 12 § 2611.12(d)(1)(b) (2014); WASH.REV.CODE § 10.52.110(4)(b) (2019). 239 See Administrative Order Establishing Certified Therapy Dog Program (K-9th Circuit Program), Orange County, No. 2014-26 (2014), available at https://www.ninthcircuit.org/sites/ default/files/2014-26%20%20%20Order%20Governing%20Certified%20Therapy%20Dog%20 Program%20K-9th%20Orange.pdf [https://perma.cc/FC3U-VRPB]; see also Eighteenth Judicial Circuit Administrative Order No. 17-24(A1), Westlaw FL ST 18 J CIR 17-24(1) (July 1, 2018). 240 See Letter from Will de Ryk, Agent to Alliance Therapy Dogs Member, (Apr. 1, 2018), available at https://j3uv01gyifh3iqdfjuwz0qip-wpengine.netdna-ssl.com/wp-content/uploads/ 2018/04/2018-Insurance-Ltr..pdf [https://perma.cc/Q395-RQ5A] (showing how Alliance for Therapy Dogs provides coverage for members in good standing that allows for $5 million per occurrence). One of the authors, (JE), was registered for many years with Therapy Dogs International, which provided per-incident coverage of $1 million when he was active. 38 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV recommends that handlers may consider “adding a rider to the general county liability policy to include the dog to using the handler’s homeowner’s policy to cover the dog.”241 The present authors believe that if a handler-dog team is not insured by a service dog organization, in order to avoid personal liability, the agency or court system using the dog should provide such insurance.242

IV. CONDUCT OF TRIALS WITH FACILITY DOGS

A. Witness Becoming Familiar with Dog Before Trial or at Preliminary Hearing

Requests to use dogs with witnesses generally come from prosecutors.243 Case histories sometimes indicate that a child began to be accompanied by a dog during a police investigation or interviews with support personnel or psychologists, so the presence of the dog with a witness testifying at trial may continue when an arrangement has begun during the investigation or at preliminary stages of a criminal proceeding.244 In Coria, defense counsel was not given advance notice that the 11-year-old child witness would be accompanied by a dog, but was informed that the child had become familiar with the dog in pre-trial proceedings, and agreed to allow the use of the dog.245 In Tohom, Rose, a Golden retriever, had been present during interviews and therapy sessions with the child witness, during which the therapist found that the dog allowed the child to be more verbal. 246 The social worker testified that testifying in open court would retraumatize the

241 See COURTHOUSE DOGS FOUND. IN COLLABORATION WITH W. REG’L CHILDREN’S ADVOCACY CTR., supra note 205. 242 The situation should be the same as with police dogs, which are insured by the agencies using the dogs. 243 See, e.g., People v. Chenault, 175 Cal. Rptr. 3d 1, 6, 15 (Ct. App. 2014); People v. Spence, 151 Cal. Rptr. 3d 374, 381, 400 (Ct. App. 2012) (stating courthouse dogs may be used both during investigation and prosecution of crimes); State v. Jacobs, No. 27545, 2015 WL 6180908, at *6 (Ohio Ct. App. Oct. 21, 2015); State v. George, No. 27279, 2014 WL 7454798, at *4 (Ohio Ct. App. Dec. 31, 2014) (“resource of the county”); Lambeth v. State, 523 S.W.3d 244, 246 (Tex. Ct. App. 2017); see also People v. Shepler, D073594, 2018 WL 3979282, at *2 (Cal. Ct. App. Aug. 21, 2018) (stating “prosecution filed a motion stating that minor victim requested a support canine . . . .”). 244 See State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013) (explaining that the facility dog, Ellie, accompanied Lare during the defense interview). 245 State v. Coria, No. 66995–8–I, 2012 WL 1977439, at *2 (Wash. Ct. App. June 24, 2012) (“There was no effort by defense counsel to establish what effect there would be on the child if the dog were removed.”). 246 People v. Tohom, 969 N.Y.S.2d 123, 127 (App. Div. 2013). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 39 child.247 In Dye, the witness, Douglas Lare, a 56-year-old with a mental age between six and twelve, had been accompanied by a facility dog, Ellie, a Golden retriever used previously with children during statements or testimony.248 Lare had been accompanied by Ellie during his defense interview and requested her presence during his testimony at trial.249 In Chenault, the defense objected to the use of a dog, stating that the witnesses, age eleven and thirteen at the time of trial, had already talked to police, social workers, and the prosecutor without the presence of a dog, and had testified at a preliminary hearing without a dog, though one had been requested.250 The request had been denied at the preliminary hearing, according to the defense counsel, who suggested that support people be used instead.251 The trial judge stated, however, that the fact that the children had told their stories over and over “perhaps is an argument in favor of a support animal rather than against it.”252 In George, the trial judge ruled that defense counsel could cross- examine the children during their competency hearings regarding their history and involvement with the facility dog, Avery.253 During the competency hearing, “[a]t one point when Avery was not behaving, [defense] counsel stated his objection to having the dog present in the courtroom,” and on cross-examination he asked one of the witnesses about her previous interactions with the dog at the prosecutor’s office.254 In Devon D., the child witness had met the service dog two hours before a hearing began and had initially refused to touch the dog.255 Soon, however, the child witness “became more and more comfortable as she began to pet [the dog],” according to the social worker, who also noted that the girl had touched the dog’s teeth, sat with her on the floor, and was progressively “more connected and less fearful.”256

247 Id. at 128. 248 State v. Dye, 309 P.3d 1192, 1194–95 (Wash. 2013) 249 Id. at 1195. 250 People v. Chenault, 175 Cal. Rptr. 3d 1, 7 (Ct. App. 2014). 251 Id. 252 Id. at 8. 253 State v. George, No. 27279, 2014 WL 7454798, at *7 (Ohio Ct. App. Dec. 31, 2014). 254 Id. at *8. Prior to trial, the defense had moved to exclude the dog under Daubert, saying there was no “accepted, tested, and/or reviewed theory in the scientific community” to support the idea that the dog would have “a calming or therapeutic effect” justifying its presence. Id. at *6. 255 State v. Devon D., 138 A.3d 849, 861 (Conn. 2016). 256 Id. at 861–62. 40 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

In Riley, the dog was used with four minors at a preliminary hearing, but was also used at trial.257 In Buskirk, the defendant’s counsel alleged that the witness had been coached to provide testimony against him and during cross-examination the witness was asked about the prosecutor’s dog.258 The prosecutor responded that this inquiry by the defense was by way of “indicating or insinuating that the facility dog is the means for us to get her to say what we want her to say.”259 The prosecutor was permitted to rebut such inferences, and no finding was made that any such allegation had been established.260 There was, in any case, no indication the dog was used during testimony.261 Under the facility-dog statutes of Arkansas, Hawaii, Oklahoma, and Washington, a relationship with the witness must have been established before a dog can be used in a judicial proceeding.262 Such a relationship might begin with a traumatized child being introduced to a therapy dog as an aspect of the child’s therapy or might involve the use of a facility dog associated with the court system during interviews by the police or other officials. The present authors believe that establishing a relationship with the witness before trial is optimal for establishing the necessity of the use of the dog at trial. There is no need that the relationship necessarily results from anticipation of trial, and such a requirement seems to have no purpose other than to exclude therapy dogs that might form relationships with witnesses as an aspect of therapy rather than as part of the legal process.

B. Placement of Dogs During Trials

Courts have often made attempts to keep the dog’s visibility to the jury to a minimum or required that the dog could be hidden altogether by positioning the dog and witness before the jury is brought into the courtroom.263 In Spence, the jury was informed that the child witness would be entering through the back door rather than the front entrance to the courtroom.264 The prosecutor noted for the record that the witness would be

257 People v. Riley, No. D070277, 2017 WL 2375504, at *4 (Cal. Ct. App. June 1, 2017) (rejecting constitutional challenge to presence of support dog during testimony). 258 Buskirk v. State, No. 18A-CR-350, 2018 WL 5260658, at *2 (Ind. Ct. App. Oct. 23, 2018). 259 Id. 260 Id. at *3. 261 Id. 262 ARK.CODE ANN. § 16-43-1002(d)(3) (West 2015); HAW.REV.STAT. § 621-30(c)(3) (2019); OKLA.STAT.ANN. tit. 12 § 2611.12(d)(1)(c) (2014); WASH.REV.CODE § 10.52.110(4)(c) (2019). 263 People v. Spence, 151 Cal. Rptr. 3d 374, 401 (Ct. App. 2012). 264 Id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 41

“accompanied by a victim advocate named Norie Figueroa from our office and a canine therapy dog.”265 The appellate court, citing the appellate decision in Dye, found there to be a “lack of any indication the dog’s presence alone communicated to the jury any presupposition of this witness’s ‘very victimhood . . . .’”266 In Dye, a case involving an impaired adult witness, the prosecution asked the witness who was beside him as he testified, to which he replied, “Ellie is to help me and to make it easier for me. And I have treats here.”267 Thus, the witness was allowed to call attention to the dog’s presence and its function in helping him testify.268 In Chenault, in granting the prosecution’s motion to allow a dog to accompany two minor witnesses/victims, the trial judge anticipated calling a recess before the testimony of F. and C. so that the witnesses could enter the courtroom with the dog and its handler “through the back hallway. After the witness took the stand with the support dog, the jury would reenter the courtroom.”269 The judge felt this procedure at least minimized “any untoward prejudice[.]”270 Jurors were informed that F. would be accompanied by “a service animal, companion dog, whose [name] happens to be Asta.”271 The judge wanted the dog’s presence limited to the courtroom, stating that “one thing I don’t want is for [F.] and/or [C.] and said support animal to be wandering the hallway out here on any recesses with pats on the head by everyone [who] loves dogs, including jurors.”272 In affirming, the appellate court said that the trial court should take measures to reduce possible prejudice from use of the dog by making its presence—

as unobtrusive and least disruptive to the proceedings as reasonably possible. The court may have the jury recess while the witness takes the stand and the support dog enters and is positioned, and then recess again before the witness and dog leave the courtroom. In certain physical courtroom settings, it may be possible to have the support dog lie on

265 Id. 266 See id. at 403; see also Spence v. Beard, No. 14-cv-1624, 2015 WL 1956436, at *9 (S.D. Cal. Apr. 29, 2015) (finding on habeas petition presence of support advocate and therapy dog had not “so fundamentally infected the trial process as to violate the petitioner’s due process rights.”). 267 State v. Dye, 309 P.3d 1192, 1196 (Wash. 2013) (describing witnesses’ response to prosecutor’s questioning following feeding dog treats). 268 Id. 269 Id. 270 Id. 271 Id. 272 People v. Chenault, 175 Cal. Rptr. 3d 1, 10 (Ct. App. 2014). (explaining possible prejudice by presence of facility dog). 42 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

the floor near the witness, entirely out of the jurors’ view. If not, the support dog should be positioned, if possible, so its presence is not significantly distracting to the jurors.273

In George, the Ohio trial court said, in denying a defense motion to exclude the dog: “[t]o put your mind at rest . . . Avery is not . . . permitted in the courthouse during this trial wearing any identification of the Summit County Prosecutor’s Office.”274 In any case, the dog was to wear “a plain harness or vest.”275 The handler was permitted to be in the courtroom, but she was not to wear “her Summit Country Prosecutor’s Polo shirt or she wears a jacket or sweater over it or something like that . . . .”276 Jurors were to be shielded from any knowledge that the dog and handler were present “on behalf of the prosecutor’s office.”277 Thus, the court’s assumption was that an affiliation with the prosecutor would be prejudicial, and that such a connection should be obscured as much as possible.278 In another Ohio case, Jacobs, the dog “sat at [the victim’s] feet while she was in the witness stand.”279 In Reyes, during the arguments over a motion to exclude the dog, the handler testified that she would have the victim be seated first, then take the dog to the victim and place the dog in a “down command position.”280 The prosecution advised the trial court that the dog would remain at the child’s feet during direct and cross-examination and would not be taken out of the witness box until the jury was excused from the courtroom.281 The trial judge stated for the record that the jury “could not see [the dog] much from what I can see, if he’s going to be at the side of this jury box. I can’t see him from where I am, the dog, that is.”282 In Smith, the Texas appellate court had a perspective similar to that of the California appellate court in Chenault, having breaks before and after the testimony of the witness using the dog so that the jury would not see it being placed in the witness stand or taken from the stand at the end of the

273 Id. at 12. 274 State v. George, No. 27279, 2014 WL 7454798, at *7 (Ohio Ct. App. Dec. 31, 2014). 275 Id. (eliminating connection jury could infer between prosecution and facility dog). 276 Id. 277 Id. 278 Id. at *6. 279 State v. Jacobs, No. 27545, 2015 WL 6180908, at *1 (Ohio Ct. App. Oct. 21, 2015) (no statement was made regarding dog’s visibility to jury). 280 State v. Reyes, 505 S.W.3d 890, 896 (Tenn. Crim. App. 2016). 281 Id. 282 Id. (explaining visibility of dog to court room). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 43 testimony.283 On appeal, the defendant argued that reducing the visibility of the dog did not mean jury was unaware of its presence, but since this argument was not made at trial, the appellate court said there was nothing for it to review.284 In Johnson, the appellate court said “it may be wise for the witness and support animal to get situated on the witness stand outside the presence of the jury . . . . Once situated and the jury returns to the courtroom, the trial court should inform the jury that the witness will be accompanied by a support animal while testifying.”285 On appeal, the defense argued that the use of the term “therapy dog” by the trial court implied the witness was undergoing therapy as a result of the sexual assault, but appellate court noted:

the trial court also indicated that the dog was from the prosecutor’s office, thus signaling to the jury that the dog was not the witness’ own therapy dog, but rather one provided by the prosecution to assist the witness with providing testimony. Therefore, no error occurred and any objection to the trial court’s use of the term therapy dog would have been meritless.286

Thus, unlike the Ohio court in George, the Michigan appellate court in Johnson felt that an association with a prosecutor’s office reduced prejudice compared to the possibility that the jury would see the dog as part of a witness’s therapy.287 In Devon D., the prosecution moved to permit a dog “to sit in close proximity to [the victim] during [the victim’s] testimony, provided that such dog and the dog’s handler shall not obscure [the victim] from the view of the defendant or the jury . . . .”288

[T]he jurors never saw [the dog, Summer,] because the court excused the jury prior to C1’s testimony so that Summer would be on the witness stand, out of view, before the jury returned. This procedure eliminated the possibility that the

283 Smith v. State, 491 S.W.3d 864, 876 (Tex. Ct. App. 2016) (explaining breaks between witnesses). 284 Id. (noting to reserve complaints for review trial judge must have ruled on complaint). 285 People v. Johnson, 889 N.W.2d 513, 529 n.4 (Mich. Ct. App. 2016). 286 Id. at 530 n.6. 287 Id. 288 State v. Devon D., 138 A.3d 849, 861 (Conn. 2016). 44 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

jurors might be swayed by the presence of “[a] cute little kid with her cute dog,” as the defendant feared.289

In Riley, the dog was underneath a witness during preliminary hearing and “basically . . . out of the view of almost everyone.”290 In Lambeth, a police officer who worked with the service dog placed it in the witness box with the witness before the jury entered the courtroom and removed it from the witness box after the jury left the courtroom.291 The defendant argued the attempt to keep the jury from learning of the service dog was unsuccessful because the dog made sounds.292 The court recessed the proceedings at one point to address the defendant’s complaint concerning the sounds and the defendant requested a mistrial, which was denied.293 In Nuss, the dog’s handler placed the facility dog under the witness’s seat during a recess, but “to avoid the disruption of another recess,” the court allowed “the handler to walk the facility dog out of the courtroom in the jury’s presence,” identifying the handler to the jury at that time.294 Certain statutes also consider the dog’s placement and visibility to the jury during the trial. Alabama’s facility dog statute provides that the dog is to be brought to the witness stand by a certified handler “outside of the presence of the jury, and the certified handler shall return to his or her position in the courtroom within view of the witness stand.”295 Also, “[d]uring trial proceedings, all precautions should be taken to obscure the presence of the dog from the jury.”296 The jury is, nevertheless, to be instructed by the court “on the presence of the certified facility dog and that the presence of a certified facility dog should not create any prejudice to any party.”297 Also “[m]arkings identifying the dog as a certified facility dog while working must be visible.”298 The Arkansas facility dog statute provides that the “jury shall be seated subsequent to the child witness’ and certified facility dog’s taking their places in the witness stand.”299

289 Id. at 868. 290 People v. Riley, No. D070277, 2017 WL 2375504, at *2 (Cal. Ct. App. June 1, 2017). 291 Lambeth v. State, 523 S.W.3d 244, 247 (Tex. Ct. App. 2017). 292 Id. at 248. 293 Id. 294 State v. Nuss, 446 P.3d 458, 460 (Idaho Ct. App. 2019). The defense failed to object to the exit of the handler and the dog in the jury’s presence. Id. at 462. 295 ALA.CODE § 12-21-148(c) (2017). 296 Id. § 12-21-148(d). 297 Id. § 12-21-148(c). 298 Id. § 12-21-148(e). 299 ARK.CODE ANN. § 16-43-1002(d)(2) (West 2015). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 45

Washington’s statute provides that the handler must be present in the courtroom “to advocate” for the dog “as necessary.”300 This does not mean any kind of continual contact; however, the dog “should be trained to accompany the witness to the stand without being attached to the certified handler by a leash and lie on the floor out of view of the jury while the witness testifies.”301 Also, “[t]o the extent possible, the court shall ensure that the jury will be unable to observe the [courthouse] facility dog prior to, during, and subsequent to the witness’s testimony.”302 The present authors believe that a facility dog should be as inconspicuous as possible. An effort should be made to draw as little attention to the dog as possible. Ideally, the dog should be situated in and removed from the witness box outside the presence of the jury.

C. Presence and Visibility of Handler With or Near Dog

In Dye, the dog that accompanied the adult witness, Douglas Lare, “was trained by, and lives with, the prosecutor at Dye’s trial.”303 Therefore, the dog’s handler would presumably have been at a table only feet away from the witness stand. In Chenault, the prosecutor informed the court that the dog’s handler would be seated where the dog could see the handler to assure that it would not stand up or otherwise misbehave.304 In Smith, the therapist was the handler and sat behind the witness box in a chair “so that if the dog acts up or anything, that she’s there to handle it . . . .”305 In Riley, the appellate court noted that the handler was seated near the witness stand.306 In Shorter, however, the Michigan appellate court noted that the prior Michigan case of Johnson “made no mention of allowing an animal handler to also accompany the witness during testimony.”307 Furthermore, once the judge became aware of the need for the handler’s presence in addition to the dog, she “expressed concern about whether there was evidence of a ‘necessity’ for that support animal.”308 The question of necessity then

300 WASH.REV.CODE § 10.52.110(6) (2019). 301 Id. 302 Id. § 10.52.110(7)(b). 303 State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013). 304 People v. Chenault, 175 Cal. Rptr. 3d 1, 8 (Ct. App. 2014). 305 Smith v. State, 491 S.W.3d 864, 874 (Tex. Ct. App. 2016); State v. Nuss, 446 P.3d 458, 461–62 (Idaho Ct. App. 2019) (discussing role of facility dog handler). 306 People v. Riley, No. D070277, 2017 WL 2375504, at *2 n.2 (Cal. Ct. App. June 1, 2017). 307 People v. Shorter, 922 N.W.2d 628, 634 (Mich. Ct. App. 2018) (citing People v. Johnson, 889 N.E.2d 513 (Mich. Ct. App. 2016)). 308 Id. at 632. 46 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV required an analysis of the state’s support-person statute.309 In Lambeth, a police officer “who worked with the service dog” placed the dog in the witness box and later removed the dog, but where that officer was during the child witness’s testimony was not specified.310 In Shepler, both a support person and a dog were present when a child with cognitive impairment and a brain injury testified, and the court noted that “the jury would not know if the dog was for the support person or the child and the dog would not be visible to the jurors from the witness stand based on the configuration of the courtroom.”311 Statutes sometimes describe the qualifications of the handler but seldom provide detail as to where and how visible the handler is to be in the courtroom. Alabama’s registered therapy dog definition provides that “[a]n identification card or badge [is] to be prominently displayed on the handler.”312 The Arkansas facility-dog statute provides that the handler is to accompany the dog to the witness stand “in the absence of the jury.”313 Virginia provides that a certified facility dog is to be “accompanied by a duly trained handler,” but this seems only to require that both should be in the courtroom during testimony.314 Washington’s statute provides that the handler is to be present to “advocate” for the dog but specifies that the dog is to accompany the witness to the stand without being attached to the handler, though presumably this does not preclude the witness from using a leash.315 One of the authors of this Article (SM), a professional trainer and handler working in several states, has found that, in being brought into cases by psychologists involved in child sexual abuse cases, part of her responsibility has become to instill enough confidence to allow the child to become a temporary and casual handler for the support animal.316 Her goal is to facilitate a bond between the child and the dog so that the child may gain enough confidence to handle the dog during the testimony. The trainer seeks to becomes a courtroom observer rather than tangential participant during the testimony. In some instances, the child gains enough confidence

309 See MICH.COMP.LAWS § 600.2163a(4) (West 2019). 310 Lambeth v. State, 523 S.W.3d 244, 246 (Tex. Ct. App. 2017). 311 People v. Shepler, D073594, 2018 WL 3979282, at *2 (Cal. Ct. App. Aug. 21, 2018). The dog was brought to the witness box outside the presence of the jury. Id. at *2. 312 ALA.CODE § 12-21-147(a)(3)(3) (2017). 313 ARK.CODE ANN. § 16-43-1002(d)(1) (West 2015). 314 VA.CODE ANN. § 18.2-67.9:1(a)(ii) (West 2018). 315 WASH.REV.CODE § 10.52.110(6) (2019). 316 See State v. Nuss, 446 P.3d 458, 461 (Idaho Ct. App. 2019). The authors disagree with the Idaho Court of Appeals, which stated that “to assume that a facility dog (albeit very well-trained) could perform its function without the aid of its handler is unreasonable.” See Id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 47 through this kind of work that the dog will not even need to be present in the courtroom when the child testifies.

D. Misbehavior of Dog

In Spence, the California appellate court noted that “if any issues or improper behavior by the therapy dog occurred, it would be removed from the courtroom. The record does not show any such problems arose.”317 In Dye, the Washington Supreme Court stated:

It is the responsibility of a party alleging error to create a record of that error. If Dye’s counsel had seen Ellie jump on Lare, make a defensive posture toward Dye, or engage in other prejudicial behavior, she could have noted such behavior for the record, or even asked the court to remove Ellie from the witness stand momentarily. Counsel did not.318

In George, during a competency hearing, defense counsel objected “[a]t one point . . . Avery was not behaving . . . .”319 At trial, however, defense counsel did not object to the dog accompanying two witnesses.320 In the habeas action filed by the defendant in federal court, Lazaroff, the federal magistrate judge noted that the only direct discussion with regard to the dog during the competency hearing involved an exchange where a witness was advised that the dog might not be present during her testimony because he had “not been as obedient this morning as might have been expected.”321 The witness said that this would upset her “a little, but not much.”322 In Hasenyager, the Ohio appellate court noted that a purported instance of dog’s agitation, characterized by the defense as “movements and interruptions,” was not objected to at the time and was not reflected in the record.323 In Davis, a child who had testified via DVD began kicking and crying as the DVD was being played.324 A dog was with the child at the time, but there was no indication the dog was part of the disturbance.

317 People v. Spence, 151 Cal. Rptr. 3d 374, 401 (Ct. App. 2012). 318 State v. Dye, 309 P.3d 1192, 1200 (Wash. 2013). 319 State v. George, No. 27279, 2014 WL 7454798, at *6 (Ohio Ct. App. Dec. 31, 2014). 320 Id. at *8. 321 George v. Lazaroff, No. 5:16cv1963, 2017 WL 3263454, at *3 (N.D. Ohio June 22, 2017). 322 Id. 323 State v. Hasenyager, 67 N.E.3d 132, 135 (Ohio Ct. App. 2016). 324 State v. Davis, No. M2017–00293–CCA–R3–CD, 2018 WL 1468819, at *4 (Tenn. Ct. App. Mar. 26, 2018). 48 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

The applicable California statute provides that the court is to “take appropriate measures to make the presence of the therapy or facility dog as unobtrusive and nondisruptive as possible, including requiring the dog to be accompanied by a handler in the courtroom at all times.”325 Further, although a therapy or facility dog may initially be permitted, the statute “does not prevent the court from removing or excluding a therapy or facility dog from the courtroom to maintain order or to ensure the fair presentation of evidence, as stated on the record.”326 Colorado’s facility dog statute provides that “the judge has the authority to terminate the presence of a court facility dog at any time prior to, or during, the witness’s testimony.”327 Hawaii’s facility dog statute provides that a facility dog “shall be specially trained to provide emotional support to witnesses testifying in judicial proceedings without causing a distraction during the proceedings.”328 Washington’s statute provides that the dog is to be selected “to provide quiet companionship to witnesses during stressful legal proceedings . . . .”329 The present authors believe that a facility dog should have a calm temperament, be safely handled by the child and available for support. Further, the handler should be aware of the dog’s temperament and able to confirm the dog’s ability to remain quiet even before offering services to the judicial system.330 The authors believe that dogs and dog teams should be evaluated regularly. Thus, Florida’s Ninth Judicial Circuit Court program, which provides dogs that can be used throughout a witness’s experience in the judicial process, provides for frequent evaluation of dogs and teams, assuring that both the service and therapy dogs in the program are

325 CAL.PENAL CODE § 868.4(d) (2018). 326 Id. § 868.4(f). 327 COLO.REV.STAT. § 16-10-404(3) (West 2019). 328 HAW.REV.STAT. § 621-30(a) (2019) (emphasis added). 329 WASH.REV.CODE § 10.52.110(9)(b) (2019). 330 See ADI Minimum Standards and Ethics, supra note 147, at 10–11 (indicating that for assistance dogs, calmness is a threshold selection issue, not a behavior that is inculcated by training for assistance dogs); see also COURTHOUSE DOGS FOUND.IN COLLABORATION WITH W. REG’L CHILDREN’S ADVOCACY CTR., supra note 205, at 9 (“These dogs also have the temperament to be able to interact with people from many walks of life in high stress environments for an extended period of time.”). Note also the language on the website of the Courthouse Dogs Foundation that a “courthouse facility dog is a professionally trained assistance dog” and further that such dogs “are specially chosen because of their calm demeanor and ability to work in a high-stress environment . . . .” Facility Dogs, COURTHOUSE DOGS FOUND., https://courthousedogs.org /dogs /facility-dogs/ (last visited Oct. 19, 2019) [https://perma.cc/QS5C-MS3R] (highlighting how therapy dogs are often selected for exactly this quality). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 49 functioning correctly for the witness as well as for the judicial system itself.331

E. Facility Dogs Present in Court but Not During Testimony

In Millis, the facility dog, Blake, and its handler sat beside the mother of the murder victim during the trial.332 The defense argued that Arizona’s crime-victim law provided only for a support person, not a support animal.333

[T]he court was informed that Blake would not accompany S.F. at the witness stand, but would only sit with her in the gallery. This supports the court’s finding that the use of the dog would not unfairly prejudice Millis, because the animal would have been less visible and prominent to the jury in the gallery than it would have at the witness stand . . . .334

In Davis, the six-year-old victim, who did not testify on the stand, but was present in the courtroom with a facility dog, began kicking and crying when a video of the victim’s forensic interview was being played.335 The child and dog were under a table at the time, and court deputies gave the child candy and hugged her.336 Defense counsel objected to the behavior of the court personnel, but not to the presence of the dog.337 This situation raises a question of whether a dog should be permitted to be in a courtroom with a witness when that individual is not testifying, perhaps on the argument that the witness could not remain calm without the dog.338 Alternatives, such as allowing the witness to watch evidence from another room where the dog

331 See K-9th Circuit Program, https://www.ninthcircuit.org/about/programs/k9th-circuit- program (last visited Oct. 19, 2019) [https://perma.cc/8DLT-YE66]. 332 State v. Millis, 391 P.3d 1225, 1233 (Ariz. Ct. App. 2017). 333 See ARIZ.REV.STAT.ANN. §§ 13-4401 – 13-4443 (2016) (allowing for presence of parent, relative or other “appropriate support person”). Arizona’s therapy and facility dog statutes were not in effect at the time of the trial. See id. 334 Millis, 391 P.3d at 1235. 335 State v. Davis, No. M2017–00293–CCA–R3–CD, 2018 WL 1468819, at *4 (Tenn. Crim. App. Mar. 26, 2018). 336 See id. 337 See id. 338 See id. (pointing out that individual that required extra care and emotional support was not testifying at that time). 50 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV could be present outside of the jury’s view should, in the opinion of the authors, be considered.339

V. DOGS AND JURIES

A. Arguments on Jury Prejudice

In Tohom, defense counsel argued that the dog would prejudice the jury against the defendant because the dog’s presence would convey to the jury that the witness was under stress as a result of testifying, and that this stress resulted from “telling the truth.”340 The appellate court noted that the U.S. Supreme Court had dealt with prejudice in Holbrook v. Flynn, where the Court had stated that “if the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over.”341 The appellate court further noted:

[T]he defendant admits that Rose was trained merely to respond to a person’s stress level. It is beyond dispute that a dog does not have the ability to discern truth from falsehood and, thus, cannot communicate such a distinction to a jury. Nor can it be concluded that any actual prejudice resulted from the concededly unobtrusive presence of the dog in the courtroom.342

The defense failed to show that presence of the dog was inherently prejudicial.343 In Dye, the defense argued that if the witness had a dog, the defendant should be able to hold a baby, but this argument was denied.344 The court observed that this suggestion “appears to be [a] sarcastic comment

339 See People v Tohom, 969 N.Y.S.2d 123, 126, (App. Div. 2013) (finding that “when appropriate, a child witness . . . should be permitted to testify via live, two-way closed circuit television.”). The authors believe the same argument could be made with regard to the alleged victim’s presence during testimony that might be traumatic to merely listen to. 340 Id. at 126 (citing Goings v. U.S., 377 F.2d 753, 762 (8th Cir. 1967) (“telling the truth” requires judge to exercise discretion so that witness will “feel at ease”). 341 Tohom, 969 N.Y.S.2d at 134 (quoting Holbrook v. Flynn, 475 U.S. 560, 570 (1986)). 342 Id. 343 Id. 344 State v. Dye, 309 P.3d 1192, 1195 (Wash. 2013) 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 51 that Mr. Lare could testify with Ellie if Mr. Dye could testify holding his baby.”345 In Chenault, the defense objected to “the one-sided deployment of a universally beloved animal distracts the jury from a dispassionate review of the evidence and unfairly bolsters the prosecution’s case by aligning witnesses with a powerful symbol of trustworthiness and vouching for their credibility as victims.”346 The court acknowledged that in certain circumstances “a support dog might cause a jury to consider impermissible factors in deciding a defendant’s guilt,” but determined that such a scenario would be rare.347 In California case of Riley, the defense argued that the defendant should have been allowed to use a dog as well, but this was denied because the defendant was not under the age of eighteen.348

[The defense also argued that it] was denied due process due to the presence of the support dog because the prosecution’s burden of proof was lowered and the presumption of innocence was eroded . . . when a juror hears the testimony of a witness who is comforted by a support dog, the juror will assume that the victim has been harmed and traumatized by the defendant’s wrongful acts. Therefore, the mere presence of the support dog will relieve the prosecution of presenting evidence to prove the defendant’s guilt, because the dog will stand as a “powerful symbol . . . that the children were ‘victims’ that suffered an underlying trauma and required protection and/or comforting from a dog.”349

345 Id. at 1195. The defense also argued that Dye was allergic to dogs and his reaction to Ellie might distract the jury. Id. The court asked for documentation of the supposed allergy, but none was provided. Id. 346 See People v. Chenault, 175 Cal. Rptr. 3d 1, 10 (Ct. App. 2014) (emphasis added); see also State v. Lacey, No. 2017-CA-63, 2018 WL 5307079, at *5 (Ohio Ct. App. Oct. 25, 2018) (arguing that facility dog “invested the victim’s testimony with greater credibility than it would have had otherwise . . . .”). No objection, however, was made as to the dog’s use at trial, and there was nothing in the record to establish that the dog was actually with the witness during testimony. Lacey, 2018 WL 5307079, at *5–6 . Research on juror decision-making involving detection dogs found that “participants assigning a guilty verdict had higher detection dog belief scores than those assigning a not guilty verdict,” thus correlating credibility with the use of a dog in a criminal investigation. Lisa Lit, et al., Perceived Infallibility of Detection Dog Evidence: Implications for Juror Decision Making, 32 CRIM.JUST.STUD. 1, 9 (2019). 347 See Chenault, 175 Cal. Rptr. 3d at 10. 348 People v. Riley, No. D070277, 2017 WL 2375504, at *2 (Cal. Ct. App. June 1, 2017). 349 See id. at 3. 52 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

The appellate court in Riley said that such arguments were disposed of by the previous California case of Chenault.350 While California courts have generally rejected arguments regarding prejudice as to facility dogs, it is perhaps worth noting that one California court precluded a defendant from bringing her service dog into the courtroom as this “might impact [the jury’s] ability to listen to testimony and evaluate the evidence free of distractions.”351 In another California case, an appellate court agreed with the defense that the presence of a trailing dog in the courtroom during the handler’s testimony was “more prejudicial than probative and violated [the defendant’s] due process right to a fair trial,” adding that “[the dog’s] presence likely generated sympathy for Garvin and bias against defendants.”352 It should not, in the opinion of the authors, be assumed that such arguments about other types of dogs creating prejudice in courtrooms, are irrelevant to the use of facility dogs with witnesses, as the same physical, emotional, and cognitive reactions as discussed below can be at play even with a jury hearing a police witness. In Millis, the defendant argued that he should have been permitted to have a dog with him if the mother of the victim was permitted to have a dog with her in the courtroom (she was not allowed to do so during testimony).353

The state did not oppose Millis’s request, but when the trial court asked Millis if having a dog with him at trial would actually comfort him, he said he did not think so and he did not need one. The court then denied Millis’s request. He does not challenge this ruling on appeal, nor does he raise an equal protection argument. 354

On first hearing of the use of a dog in Smith, defense counsel did not object, but rather exclaimed, “I love dogs.”355 Later he objected that the use of the dog was “overly prejudicial.”356 The Texas appellate court said that

350 See id. 351 See People v. Wernke, No. B207542, 2009 WL 3111833, at *8 (Cal. Ct. App. Sept. 30, 2009). The defendant used the dog to reduce the effect of severe panic attacks she had when driving at night. Id. at *7. The court approved bringing the dog into the courthouse, but not the courtroom itself. Id. at *8–9. No inquiry was conducted as to whether the dog was actually a service dog under Department of Justice rules. See Department of Justice, Nondiscrimination on the Basis of Disability in State and Local Government Services, 75 Fed. Reg. 56164, September 15, 2010. 352 People v. Oudin, G050682, 2015 WL 3645861, at *23 (Cal. Ct. App. June 12, 2015). 353 State v. Millis, 391 P.3d 1225, 1236 (Ariz. Ct. App. 2017). 354 Id. at 1232 n.8. 355 Smith v. State, 491 S.W.3d 864, 874 (Tex. Ct. App. 2016). 356 Id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 53 the “[a]ppellant did not present any evidence or argument at the hearing that the jury likely would be prejudiced by the presence of the service dog in the witness box.”357 The court was satisfied that “the trial court did not err by finding that the service dog’s presence was not likely to prejudice the jury in evaluating [the child’s] testimony.”358 Even if there was an error, it was harmless, and the defendant court said any error alleged “does not implicate constitutional rights.”359 In many cases, such as Degner, no argument was made at trial regarding possible prejudice from the presence of the dog.360 In Degner, for instance, defense counsel “stipulated that the support dog could accompany the minor witnesses.”361 In Johnson, an argument for ineffective assistance of counsel was rejected on appeal, but failure to object to use of support dog at trial would have been meritless in any case.362 The Michigan appellate court noted that it could have even been part of the defense counsel’s trial strategy to let the witnesses testify in the presence of the dog.

At trial, the defense’s theory was that the victim was “coached” to say that defendant committed these sexual acts. In fact, during closing argument, defense counsel argued that the victim was able to “spit back, so to speak, her script,” and that she kept “saying the same thing that we think was fed to her by these other people, her parents or whatever.” Thus, it very well could have been trial counsel’s strategy to allow the support animal to accompany the victim while testifying so that she would appear calm while testifying, which would make it appear that she was coached on what to say at trial. Consequently, defendant has not overcome the strong presumption that counsel’s performance was sound trial strategy.363

Arguably, however, a defense argument that a victim is speaking from a script might be better served by a halting witness who, because of

357 Id. at 875. 358 Id. 359 Id. at 876. 360 See People v. Degner, No. 327025, 2016 WL 3344503, at *2 (Mich. Ct. App. June 14, 2016) 361 See id. (describing that court found “counsel was not ineffective for failing to challenge the use of the dog.”). 362 People v. Johnson, 889 N.W.2d 513, 530 (Mich. Ct. App. 2016). 363 Id. 54 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV discomfort, must start over and over again and always repeat the same catch phrases in doing so.364 In the Texas Court of Appeals case of Lambeth, the defendant argued that the jury’s knowledge of the dog’s presence would lead the jurors to conclude that the defendant “had inflicted a significant psychological injury on the complaining witness given the witness’s need for the dog.”365 The appellate court was unsure from the record whether the jury was in fact aware of the dog, but reasoned that there was a considerable and diverse amount of evidence that supported the notion that the complaining witness had suffered psychological injury, all of which was cumulative.366 The present authors believe that the accompaniment of a dog may engender sympathy for a witness and that such sympathy may prejudice a jury. Therefore, we suggest that a specific necessity requirement as to each witness is appropriate to limit the situations in which a defendant will face such a potential prejudice.

B. Jury Cautions and Instructions

Courts have taken the possibility of jury prejudice into account, though perhaps not sufficiently.367 In Lacey, a facility dog and his handler were introduced to prospective jurors at the beginning of voir dire, but the decision does not indicate whether the dog was actually used during the trial and no objection to its use was made at trial.368 In Tohom, before the girl’s testimony, the judge explained to the jury that she would be accompanied by a “companion dog,” but that the jury was not to “draw any inference either favorably or negatively from either side because of the dog’s presence.”369 The jury was also cautioned in this regard prior to beginning deliberation.370 In Dye, the trial court instructed the jury not to “make any assumptions or draw any conclusions based on the presence of this service dog.”371 On appeal, the Washington Supreme Court found no actual evidence that Ellie, the dog, “had the effect of distracting the jury, damaging the presumption of Dye’s innocence, or otherwise tainting the

364 See id. 365 Lambeth v. State, 523 S.W.3d 244, 248 (Tex. Ct. App. 2017). 366 Id. 367 See supra Section V.A. 368 See State v. Lacey, No. 2017-CA-63, 2018 WL 5307079, at *3 (Ohio Ct. App. Oct. 25, 2018) (stating that after voir dire, “the record includes no further mention of the dog”). 369 People v. Tohom, 969 N.Y.S.2d 123, 134 (App. Div. 2013). 370 Id. 371 State v. Dye, 309 P.3d 1192, 1196 (Wash. 2013). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 55 proceedings.”372 The Court found that “whatever subconscious bias may have befallen the jury was cured by the trial court’s limiting instruction, which cautioned the jury not to ‘make any assumptions or draw any conclusions based on the presence of this service dog.’”373 The Court held that Dye had failed to establish that his fair trial rights were violated and that any possible “prejudice that resulted from Ellie’s presence was minor and largely mitigated by the limiting instruction the trial court gave.”374 In Spence, the jury had been cautioned, according to the appellate court, “to decide the case based on the evidence, not on any extrinsic factors such as sympathy, passion, or prejudice.”375 In Chenault, the appellate court considered when the jury should be admonished if the dog’s presence becomes known, or is likely to become known.376 In George, the trial judge prepared a cautionary instruction, which was quoted in part by the appellate court:

You must not draw any inference either favorably or negatively for either side because of the dog’s presence. You must not permit sympathy for any party to enter into your considerations as you listen to [H.S.’s] testimony, and this is especially so with an outside factor such as the facility dog. The dog is—you know, it’s a companion. It’s a working dog, I guess, or a companion dog in the sense that we have all seen people with disabilities have a dog who assists them. As these children do not have disabilities, but it is a companion animal and its classification, I guess if you would, is that it’s a facility dog; in other words, it facilitates,

372 Id. at 1200. 373 Id. 374 Id. 375 People v. Spence, 151 Cal. Rptr. 3d 374, 401 (Ct. App. 2012). 376 See People v. Chenault, 175 Cal. Rptr. 3d 1, 12–13 (Ct. App. 2014).

[T]he court may admonish the jury that it should disregard the dog’s presence and decide the case based solely on the evidence presented, should not consider the witness’s testimony to be any more or less credible because of the dog’s presence, and should not be biased either for or against the witness, the prosecution, or the defendant based on the dog’s presence.

Id. The California statute regarding use of therapy and facility dogs in courtrooms specifically indicates that it is intended to codify Chenault, and that nothing in the section “abrogates the holding of [Chenault] regarding the need to present appropriate jury instructions.” See CAL.PENAL CODE § 868.4(g)(2) (2018). Further, if a dog is used “during a criminal jury trial, the court shall, upon request, issue an appropriate jury instruction designed to prevent prejudice for or against any party.” Id. § 868.4(e). 56 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

as I said yesterday, vulnerable witnesses; and it is a resource of the county available to any vulnerable witness who would be called to testify.377

In Reyes, at the conclusion of the trial, the judge gave a special jury instruction regarding the dog.378

During this trial, a witness was accompanied by [a] courthouse facility dog. The dog is trained, it is not a pet and it does not belong to the witness. The dog is equally available to both the prosecution and the defense. You must not draw any inference regarding the dog’s presence. Each witness’[s] testimony should be evaluated upon the instructions that I give you.379

In Johnson, the Michigan appellate court found that a jury instruction to decide the case based solely on the evidence, rather than on sympathy or bias, could be presumed to have been followed by the jury.380 In Devon D., the prosecution and defense counsel both stipulated that jury instructions would provide that the—

[W]itness is anxious about testifying in front of a group of people. The dog is not present due to any concern the witness has with the defendant’s presence. The . . . dog met the witness [the day before] in preparation for court trial.381

The jury was advised to disregard the presence of the dog, to draw no inference for or against any witness using a dog, and to “[t]hink of the dog like an interpreter, an aid to get the witness’ testimony across to you more clearly.”382 In Riley, the trial court, according to the appellate court, also offered to provide a jury instruction regarding the dog at the request of

377 State v. George, No. 27279, 2014 WL 7454798, at *4 (Ohio Ct. App. Dec. 31, 2014). A federal habeas proceeding later found the trial court’s description of the witness as vulnerable to be itself prejudicial. See George v. Lazaroff, No. 5:16cv1963, 2017 WL 3263454, at *3 (N.D. Ohio June 22, 2017). 378 State v. Reyes, 505 S.W.3d 890, 896 (Tenn. Crim. App. 2016) 379 Id. at 896. 380 See People v. Johnson, 889 N.W.2d 513, 535 (Mich. Ct. App. 2016); see also People v. Tomaszycki, No. 329224, 2017 WL 1244174, at *6 (Mich. Ct. App. Apr. 4, 2017). 381 State v. Devon D., 138 A.3d 849, 863 (Conn. 2016). 382 Id. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 57 either party, but neither party made such a request and therefore no instruction was given.383 In Nuss, the Idaho trial court stated in pretrial instructions to the jury that a facility dog would be used by one or more witnesses, and that the “dog being with the witness is merely a tool that I have decided to use to promote a more calming supportive setting for the witness.”384 As to statutory law, Arizona’s facility dog statute provides:

To ensure that the presence of a facility dog assisting a victim or a witness does not influence the jury or is not a reflection on the truthfulness of any testimony that is offered by the victim or witness, the court shall instruct the jury on the role of the facility dog and that the facility dog is a trained animal.385

The Arkansas statute provides, in more general language than Arizona, that in “a criminal trial involving a jury in which the certified facility dog is utilized, the court shall present appropriate jury instructions that are designed to prevent prejudice for or against any party.”386 Colorado’s statute states that the court “may instruct the jury, if a jury instruction is requested by a party who objected to the presence of the court facility dog or upon agreement of the parties, on the role of the court facility dog and that the court facility dog is a trained animal.”387 The wording apparently allows for the possibility that a jury instruction may not be given, unlike the statutes of Arizona and Arkansas, which require jury instructions.388 Hawaii’s statute, like that of Colorado, provides that “[t]o the extent necessary, the court may impose restrictions, or instructions to the jury, regarding the presence of the facility dog during the proceedings.”389 It appears, however, to be up to the judge to determine the level of necessity for instructions. Louisiana provides that:

383 People v. Riley, No. D070277, 2017 WL 2375504, at *1 (Cal. Ct. App. June 1, 2017). 384 State v. Nuss, 446 P.3d 458, 462 (Idaho Ct. App. 2019). 385 ARIZ.REV.STAT.ANN. §§ 8-422(c), 13-4442(c) (2016) (expressing that significance of training in reducing possibility of jury prejudice is unclear). 386 ARK.CODE ANN. § 16-43-1002(f) (West 2015). 387 COLO.REV.STAT. § 16-10-404(4) (West 2019) (emphasis added). 388 ARIZ.REV.STAT. ANN. §§ 8-422(c), 13-4442(c). 389 HAW.REV.STAT. § 621-30(d) (2019). 58 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

[To] ensure that the presence of a facility dog does not influence the jury or is not a reflection on the truthfulness of any testimony that is offered by the victim or witness, the court shall instruct the jury on the role of the facility dog and that the facility dog is a trained animal.390

Again, like Arizona and Arkansas, a jury instruction is required. Washington’s statute provides that, during jury selection, “either party may, with the court’s approval, voir dire prospective jury members on whether the presence of a courthouse facility dog to assist a witness would create undue sympathy for the witness or cause prejudice to a party in any other way.”391 The court, on request of either party, is to “present appropriate jury instructions that are designed to prevent any prejudice that might result from the presence of the courthouse facility dog before the witness testifies and at the conclusion of the trial.”392 Here, the use of jury instructions is something either party can request.

C. Cross-species Communication and Implicit Bias

Research indicates that many humans are positively affected by dogs; this research shows that looking at dogs, and receiving gazes from them, increases human oxytocin levels.393 Research on oxytocin levels of humans and dogs interacting supports the existence of “an interspecies oxytocin-mediated positive loop.”394 The acquisition of human-like communication modes by dogs during domestication may have been useful “as a communication tool in the context of needs of affiliative help from others.”395 A muscle responsible for dramatically raising a dog’s inner eyebrow is much more highly developed in dogs than in wolves, leading researchers to argue that the development of this muscle effectively “hijacked the human caregiving response.”396 It has been found that shelter dogs with features enhancing puppy-like facial expressions are more likely

390 LA.STAT. ANN. § 15:284(d) (2018). 391 WASH.REV.CODE § 10.52.110(7)(a) (2019). 392 Id. § 10.52.110(7)(a). 393 See Miho Nagasawa et. al., Dog’s Gaze at Its Owner Increases Owner’s Urinary Oxytocin During Social Interaction, 55 NAT’L CTR. FOR BIOTECHNOLOGY INFO. 434, 438 (2009). 394 See Miho Nagasawa et al., Oxytocin-Gaze Positive Loop and the Coevolution of Human- Dog Bonds, 348 SCI. 333, 334 (2015); see also Evan L. MacLean & Brian Hare, Dogs Hijack the Human Bonding Pathway, 348 SCI. 280, 280–81 (2015). 395 See Nagasawa, supra note 394, at 333. 396 Julian Kaminski et al., Evolution of Facial Muscle Anatomy in Dogs, 116 PROCEEDINGS OF THE NAT’L ACAD.OF SCI. 14677, 14677 (2019). 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 59 to be adopted by people visiting the shelters than dogs without such pronounced expressions.397 Such expressions, along with the oxytocin loop, may explain why children and vulnerable witnesses are able to express themselves more easily and fully while dealing with difficult memories on the witness stand.398 The mere association of dogs with children or vulnerable witnesses may result in a transfer of observers’, including jurors’, natural reactions and sympathies from the dogs and onto the associated witnesses.399 In a study on the effects of service dogs for children with disabilities published over twenty-five years ago, Mader, Hart, and Bergin considered whether “disabled children in wheelchairs with service dogs receive more frequent social acknowledgment than when no dog is present.”400 They found that children with service dogs receive “friendly glances, smiles, and conversations” more frequently when their service dog is present.401 Further, they found social effects “were more pronounced in shopping malls, typical of unfamiliar settings where the child would be likely to experience being ignored or overlooked.”402 Such research raises the possibility that the presence of a service dog could alter a jury’s “social acknowledgment” of a child witness. Thus, the presence of a dog with a witness is likely to elicit physical, emotional, and cognitive reactions in jurors, perhaps resulting in biases (including implicit biases, also termed unconscious or cognitive biases) that may then cause bias cascade and influence the jury’s perception of the testimony and subsequent deliberations.403 Instructing jurors to disregard the presence of a dog does not eliminate the jurors’ emotions and the accompanying biases. Such biases cannot be eliminated by mere cautions and instructions as, for example, an article that examined the effect that hearing inadmissible evidence had on jurors found that, even with instructions to disregard such evidence, jurors “resist giving up evidence that they believe is probative.”404 Objections by defense counsel may actually

397 Bridget M. Waller et al., Paedomorphic Facial Expressions Give Dogs a Selective Advantage, 8 PLOS ONE 1, 5 (Dec. 2013). 398 See Nagasawa, supra note 394, at 333. 399 See id. 400 Bonnie Mader et al., Social Acknowledgments for Children with Disabilities: Effects of Service Dogs, 60 CHILD DEV. 1529, 1529–34 (1989). 401 Id. at 1530. 402 Id. at 1529. 403 Itiel E. Dror, Biases in Forensic Experts, 360 SCI. 243, 243 (2018). “Implicit bias” is unintentional bias, the individual exhibiting such a bias is generally ignorant to it. Id. These biases often cascade and snowball among people. Id. 404 Nancy Streblay, et al., The Impact of Juror Verdicts of Judicial Instruction to Disregard Inadmissible Evidence: A Meta-Analysis, 30 L. AND HUM.BEHAV. 469, 487 (2006). 60 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV highlight the significance of an issue in the minds of jurors, meaning that it could have more significance in their deliberations than it would have had no objection been made.405 The authors of this Article suggest that the best way to support children and vulnerable witnesses with dogs while simultaneously limiting implicit biases against the defendant as much as possible, is to try to keep the dog out of the jurors’ view so the dog is not visible. Furthermore, efforts should be made to reduce, to the extent possible, eye contact between jurors and the witness’s dog.

D. Research on Impact on Juries of Dogs Accompanying Witnesses

A 2014 doctoral thesis submitted to Texas A&M University looked specifically at how judges viewed the presence of a dog during testimony.406 The doctoral candidate interviewed five judges, all of whom personally had children and dogs.407 Only one of the judges had experience with a therapy dog in a courtroom, but that occurred when the judge was a district attorney, and the case was that of a colleague.408 Another judge was aware of a victim whose father had been prosecuted for abuse, and who had interacted with a dog during his recovery.409 Most judges considered the following questions that must be resolved before allowing a therapy dog into a courtroom: 1) whether the child needed the dog to express himself or herself; 2) whether the dog’s presence may reduce the likelihood that testifying would cause the witness to feel victimized again by reliving traumatic moments; 3) whether a therapy dog could be considered a support person under a Texas statute allowing for such persons when children testify; and (4) how therapy dogs might compare to other accommodations, such as testifying by closed circuit television.410 The judges also talked about the issues that would need to be resolved for a program involving therapy dogs to be practical, with questions about whether the handler could be readily available when a dog was needed,

405 Lisa Eichhorn, Social Science Findings and the Jury’s Ability to Disregard Evidence under the Federal Rules of Evidence, 52 L. AND CONTEMP.PROBS. 341, 344 (1989) (“[T]he ‘fuss’ that was made in objecting to the evidence and in ruling on its admissibility seemed to indicate to jurors that the insurance had a particular importance.”). Of course, a failure to object is likely to mean that an assignment of error would not be preserved for appeal. 406 See generally Paula Bradley, Therapy Dogs in the Courtroom as Advocates for Child Witnesses: An Interpretive Phenomenological Analysis of Judges’ Opinions, Experiences, and Rulings (Dec. 2014) (unpublished Ph.D dissertation, Arizona State University) (on file with the Texas A&M Library). 407 See id. at 12, 47–48. 408 See id. at 48. 409 See id. at 51. 410 See id. at 55–60. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 61 whether a handler could be in a local agency, where the dog could be kept in the courthouse when not needed in a courtroom, and whether agencies could share the use of such a dog.411 One judge in this study noted that the presence of a dog could increase sympathy for a victim if the dog was visible, but felt that the same problem would not exist before a Grand Jury. 412 Another judge argued that it would be easier to deal with bias in a bench trial, apparently assuming that prejudice is less likely to affect a judge than a jury.413 One study looked at the impact facility dogs might have on juries.414 As to what courthouse dogs are, researcher, Kayla Burd, took her description from data provided on the website of the Courthouse Dogs Foundation, and stated that courthouse dogs are “trained by members of the Assistance Dogs International,” whose “handlers are professionals within the criminal justice system . . . .”415 She noted that supporters of the use of such dogs “believe that these dogs are not prejudicial to jurors,” but she correctly states that “no empirical research has been conducted to examine if [facility dogs] are prejudicial or if they will unduly sway jurors to the side of the witness.”416 Kayla Burd sought to design experiments that would test a number of hypotheses regarding the use of facility dogs by comparing their effect on jurors against a witness holding a teddy bear and against a witness who was not accompanied at all during testimony.417 The experiments involved a mock child sexual abuse case where a “defendant” was accused of molesting his six-year-old granddaughter by genital fondling over clothing, actions alleged to have occurred four times over the course of six months.418 The sister of the “victim” saw the abuse and described it to their mother, who in turn reported it to authorities.419 The defendant denied the charges, saying the children were confused by his behavior while playing with them and made up fantastic stories.420 Participants—mock jurors—were divided into four groups, who read a series of documents online: “1) Judge’s preliminary instructions[;] 2) Prosecutor’s opening statement[;] 3) Defense opening statement[;] 4)

411 See Bradley, supra note 406, at 62. 412 See id. at 65–69. 413 See id. at 82. 414 See generally Kayla Burd, The Effects of Facility Animals in the Courtroom on Juror Decision-Making (Apr. 2013) (unpublished M.S. thesis, Arizona State University) (on file with the Arizona State University Library). 415 See id. at 9. 416 See id. at 19. 417 See id. at 20. 418 See id. at 23–24. 419 See Burd, supra note 414, at 24. 420 See id. 62 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Prosecutor’s questioning of the victim for some mock jurors[;] prosecutor’s interrogation of the victim’s sister for other mock jurors. No cross- examination by the defense was presented[;] 5) Prosecution closing remarks[;] 6) Defense closing remarks[;] 7) and Judge’s closing remarks.”421 As indicated in the fourth step, mock jurors were distinguished by those who read testimony of the victim and those who read testimony of the sister witness.422 Mock jurors were further subdivided by whether they had read the interrogation of the “victim,” seeing three pictures of (1) a young girl with a supposed courthouse dog, (2) the young girl with a teddy bear, or (3) the young girl with no accommodation.423 If the mock jurors read the interrogation of the sister, they saw the same young girl in one of the same three “conditions” (with dog, with teddy bear, or without accommodation). There were thus six “conditions.”424 After reading the transcript of the victim’s testimony and looking at the pictures, the mock jurors filled out a questionnaire that verified they had paid attention to the transcript and pictures.425 They were then asked whether they thought the victim was abused, how confident they were of this belief, the degree of accuracy they thought was contained in the child’s testimony, and whether the defendant was guilty or not guilty.426 The number of jurors finding the defendant guilty, based on which witness’s testimony they read and which pictures they saw, was divided as follows:427

Innovation Type Total Witness None Courthouse Teddy Dog Bear Participants Victim 19/52 22/50 22/51 (36.5%) (44%) (43.1%) Sister 16/50 21/53 22/51 Witness (32%) (39.6%) (43.1%) Combined 35/102 43/103 44/102 122/307 witnesses (34.3%) (41.7%) (43.2%) (39.7%)

421 See id. at 26. 422 See id. at 26–27. 423 See id. 424 See Burd, supra note 414, at 26–27. 425 See id. at 27–30. 426 See id. 427 See id. at 34. Note: this table corrects a mistake that was made in the posted version of the thesis, and which has been acknowledged in an email from the author of the thesis to the authors of this paper. The numerator in the fourth column under victim is 22, not 29 as indicated in the thesis. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 63

Thus, when there is no innovation (no dog, no teddy bear) and the witness was the victim, 36.5% of the mock jurors in this category found the defendant guilty, whereas when there was a courthouse dog, 44% did, and when there was a teddy bear, 43.1% did.428 When the witness was the sister, on the other hand, 32% of mock jurors found the defendant guilty , but if they saw a courthouse dog, 39.6% did, and if they saw a teddy bear, 43.1% did.429 If one combines the results for both types of witnesses (which was not done in the thesis or in the tabulation), it appears that when there was no accommodation, 34.3% of mock jurors voted for conviction, if there was a courthouse dog, 41.7% voted for conviction, and if there was a teddy bear, 43.2% voted for conviction.430 The thesis also found that these conviction rates were not to be significantly different under a chi-square test.431 It is important to note that the mock jurors observed a photograph.432 In an actual courtroom setting, a dog’s behaviors, facial expressions, breathing and moving could have a greater impact than results with a static photo might suggest. Further, note that when the witness was the victim, the percentage of mock jurors voting for conviction was higher if she was seen with a courthouse dog than if she was seen with a teddy bear.433 This raises the possibility that, from a defense perspective, it is more dangerous for the victim to testify with a dog present than it is for a non-victim witness.434 More research on the impact of dogs on juries, with larger samples and perhaps mock courtrooms, is clearly necessary.

VI. CONCLUSION

Courts have dealt with this issue on a case-by-case basis, examining the circumstances individually and considering independently each dog, each witness, and the necessities of both. Courts have sought assurance, often through the witness’s involvement with the dog during counseling or pre-trial proceedings, that the dog will not disrupt the courtroom proceedings and that its presence will be as inconspicuous as possible. Sometimes, however, dogs have been more visible to juries than necessary, and dogs have occasionally been allowed to interact with juries during breaks. Given

428 See id. 429 See Burd, supra note 414, at 34. 430 See id. 431 See id. 432 See id. at 26–27. 433 See id. 434 See Burd, supra note 414, at 26–27. 64 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV the previously mentioned findings of an “oxytocin loop” resulting from such interactions and the possible implicit biases from the presence of a dog with a witness, maximum precautions are called for.435 Facility dogs should generally not be present in courtrooms with witnesses when they are not testifying if eye contact or direct interaction may be possible between the dog and the jurors. Handlers should also be inconspicuous and, where possible, should only move a dog when the jury is not present. Ideally, a witness should have prior experience with the dog before a courtroom appearance and should not be overly focused on interacting with the dog when testifying. Few courts have required that the dog be necessary for the witness to testify at all, but some have said that a dog is implicitly necessary if the witness would be more severely traumatized, or unable to answer questions fully, if she or he had to testify without the dog. Other courts have allowed dogs in courtrooms just to make witnesses more comfortable, which the present authors believe is too lax a standard. Specific necessity should be demonstrated for children approaching maturity and for high functioning but vulnerable witnesses. Many courts have too readily dismissed the possibility of prejudice arising from the presence of a dog, ignoring or unaware that juries have implicit biases and may find a witness more sympathetic, and perhaps more credible, merely from the presence of a dog. Psychological research on the impact on juries of dogs accompanying witnesses is beginning, but results are so far inconclusive. The popularity of facility dogs in the courtroom is growing and therefore so too should the number and frequency of rigorous experiments with mock juries in law schools, psychology departments, and other areas of academia. State legislatures have created requirements on the institutional affiliations of dogs and trainers who may accompany children or vulnerable witnesses. An increasing number of state laws now require that dogs be trained by member training organizations of Assistance Dogs International, an organization that sets standards for training service dogs.436 Some state laws allow the use of therapy dogs registered with national therapy dog organizations and Alabama allows for a dog with “appropriate temperament” to be tested by a state law enforcement canine officer, a recognition that some dogs are inherently right for this kind of duty. Most of the dogs described in the case law were not service dogs, and many were not trained for service or therapy work at all, but nevertheless remained and calmed the witness. The

435 See supra Section V.C. 436 See supra Section III.B. 2020] THE USE AND ABUSE OF DOGS IN THE WITNESS BOX 65 legislative tendency to create an overarching and broad rule is unnecessary in this circumstance. Judges should be given the latitude to determine, on motion for the use of a dog, whether the dog that is being offered will behave appropriately, and usefully as to the witness, in the courtroom. Judicial experience with dogs accompanying witnesses should be allowed to develop in trial courts, with appellate review, which has been happening. Legislative approval of this practice is appropriate where other support statutes might effectively narrow support to persons and items (such as teddy bears) to the exclusion of dogs. Many dogs have the appropriate disposition for such work, and many types of training can give them the necessary experience to assure that they will remain beside a witness without violating court decorum or becoming overly visible to a jury. Legislatures would be well-advised to refrain creating a one-size-fits-all rule where none has been shown to be necessary or effective. To end with an ancient but not unwise aphorism, sometimes it is best to let lying dogs remain as they are. ONE SHOULD NOT PAY FOR ALL—DRUG QUANTITY TRIGGERING MANDATORY MINIMUMS SHOULD BE INDIVIDUALIZED IN CONSPIRACY SENTENCING

“It is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt.”1 In the consideration of conspiracy drug offenses, the circuits have not yet come to a consensus as to whether an individualized or conspiracy-wide theory should be used to determine the quantity of drugs for each defendant required to trigger a mandatory minimum sentencing requirement.2

I. INTRODUCTION

In the current political climate, harsh sentencing requirements for drug offenses is a fiercely-contested issue between dueling political parties.3

1 See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (quoting Jones v. United States, 526 U.S. 227, 252–53 (1999) (Stevens, J., concurring)) (emphasizing constitutional requirement of proving defendant guilty beyond reasonable doubt). 2 See United States v. Stoddard, 892 F.3d 1203, 1220 (D.C. Cir. 2018) (“The question remains ‘whether it is the individualized drug quantity that is a fact that increases the mandatory minimum sentence.’” (quoting United States v. Pizarro, 772 F.3d 284, 292 (1st Cir. 2014)). 3 See Editorial, Sessions’ Wrong Call on Nonviolent Drug Offenders, CHI.TRIB. (May 24, 2017, 5:47 PM), https://www.chicagotribune.com/news/opinion/editorials/ct-sessions-mandatory- minimum-sentences-edit-0525-md-20170524-story.html [https://perma.cc/ZM72-9XNU] (stating disproportional effect of tough-on-drug-crime policies on minorities); see also Matt Ford, Jeff Sessions Reinvigorates the Drug War, ATLANTIC (May 12, 2017), https://www.theatlantic.com /politics/archive/2017/05/sessions-sentencing-memo/526029/ [https://perma.cc/HU2V-RS46] (criticizing Sessions’s appeal to prosecutors to seek maximum punishment lawfully possible). “‘In some cases, mandatory-minimum and recidivist-enhancement statutes have resulted in unduly harsh sentences and perceived or actual disparities that do not reflect our Principles of Federal Prosecution . . . . Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.’” Ford, supra note 3 (quoting memo from previous Attorney General Eric Holder); Jennifer Hansler, Trump Set One Woman Free, But He’s Trying to Put a Lot More Drug Offenders Away, CNN (June 7, 2018, 12:53 PM), https://www.cnn.com/2018 /06/07/politics/trump-alice-johnson-drug-policies/index.html [https://perma.cc/XBE4-NM95] (contrasting Trump’s general demonization of drug offenders with specific generosity toward Alice Marie Johnson); but see Josh Gerstein, Sessions Moves to Lengthen Drug Sentences, POLITICO (May 12, 2017, 6:24 AM), https://www.politico.com/ story/ 2017/05/12/mandatory-minimum- drug-sentences-jeff-sessions-238295 [https://perma.cc/7A52-K96L] (explaining Session’s concession that the opioid crisis “won’t be solved solely by putting more people in prison but . . . tougher law enforcement is an essential part of the solution.”). “While the new policy does instruct 2020] ONE SHOULD NOT PAY FOR ALL 67

Proponents argue that the benefit of lenient sentencing for nonviolent drug offenders is a lower rate of incarceration with fewer devastating effects on communities of color where longer sentences do not really deter crime to begin with.4 Meanwhile, advocates of the maximum punishment strategy contend that directing federal prosecutors to “charge and pursue the most serious, readily provable offense in felony cases” fulfills the government’s vital responsibility of keeping communities safe and protecting American citizens from corruption and harm.5 Title 21 of the United States Code, section 841, which prescribes mandatory minimum sentencing requirements for defendants convicted of trafficking over a certain quantity of illegal drugs, is likely one of the most controversial provisions in the federal judicial system.6 Often times, the

prosecutors to generally pursue the most serious provable drug charge, it does allow for exceptions based on ‘good judgment.’” Gerstein, supra note 3; see also Alfred S. Regnery, Longer Prison Sentences: Good for the Crime Rate, Bad for the Criminal, FOX NEWS (May 27, 2017), https://www.foxnews.com/opinion/longer-prison-sentences-good-for-the-crime-rate-bad-for-the- criminal [https://perma.cc/Z8ED-THKL] (opining Sessions’s memo restores law to original intentions of Congress). 4 See Steven N. Durlauf & Daniel S. Nagin, Imprisonment and Crime: Can Both Be Reduced?, 10 CRIMINOLOGY &PUB.POL’Y 13, 14 (2011) (opining that increasing already lengthy prison sentences does not effectively fight crime); see also Editorial, supra note 3 (arguing harsh sentencing for nonviolent offenders does not produce effective results). Money put toward “housing a [prison] population that is nearly half drug offenders” could be better used to “beef[] up drug use treatment programs.” Editorial, supra note 3. 5 See Regnery, supra note 3 (asserting drug traffickers tend to be career criminals dangerous to community).

When an arrest is made of a pusher lower on the totem pole, prosecutors will use the threat of a severe sentence as a bargaining chip to work up the chain to nab the kingpin and those just under him. Charging one of the lowly ones with a fifteen year mandatory minimum can be a very effective way of getting the fellow to rat on his colleagues in return for a deal on the sentence.

Id.; Toby Helm & Jamie Doward, Longer Prison Terms Really Do Cut Crime, Study Shows, GUARDIAN (July 7, 2012, 2:45 PM), https://www.theguardian.com/law/2012/jul/07/longer-prison- sentences-cut-crime [https://perma.cc/6586-YMV4] (finding long sentences particularly effective when targeted at serious repeat offenders). 6 See 21 U.S.C. § 841(b) (listing drug quantities to corresponding required penalties). For example, a person who was convicted of trafficking five kilograms or more of cocaine would have a mandatory minimum sentence of the following:

[M]ay not be less than 10 years or more than life and if death or serious bodily injury results from the use of such substance shall be not less than 20 years or more than life, a fine not to exceed the greater of that authorized in accordance with the provisions of Title 18 or $10,000,000 if the defendant is an individual or $50,000,000 if the defendant is other than an individual, or both. 68 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV crime that a defendant commits does not truly warrant the severe punishment that he or she is prescribed.7 Cynthia Powell, a first-time offender, sold $300.00 worth of hydrocodone pills to an undercover police officer, for which she is serving a twenty-five year mandatory minimum sentence in Florida state prison.8

At age 17, she dropped out of high school and gave birth to a daughter, Jackie . . . . [whose] father left when [she] was only a month or two old. On disability because of uncontrollable diabetes, Cynthia focused her life on raising her daughter and helping out with other family members’ kids . . . . Jackie had a premature daughter . . . . When she was released from the hospital after five months . . . Cynthia took on a major part of the responsibility of raising her. Over the years, Cynthia’s diabetes worsened, and she began taking the prescription medication Lorcet, which contains hydrocodone, for severe pain in her legs . . . . An acquaintance of hers was working as a confidential informant[] for the police, and called Cynthia. She had the flu, she said, and she’d heard that Cynthia had a prescription for Lorcet. Cynthia refused, but the CI kept calling. Eventually . . . . [s]he sold 35 hydrocodone tablets and Soma tablets . . . . The Lorcet pills containing hydrocodone weighed 29.3 grams, just 1.3 grams above the weight necessary to trigger a 25-year mandatory minimum sentence . . . . The judge [said to her at sentencing], ‘I’m sorry, Ms. Powell, there’s nothing else I can do. It’s not an

Id. § 841(b)(1)(A). See David Bjerk, Mandatory Minimums and the Sentencing of Federal Drug Crimes, 46 J. LEGAL STUD. 93, 93–94 (2017) (detailing controversial nature of mandatory minimum requirement).

This law is prominent and controversial for several reasons. First, it potentially applies to a very large population of defendants. Indeed, in fiscal year 2010, drug offenses made up almost 30 percent of all federal offenses (second only to immigration offenses), with almost 25,000 offenders convicted of a federal drug offense . . . . Second, the mandatory minimums can be quite long . . . even for nonviolent first-time offenders. Id. 7 See Bjerk, supra note 6, at 94 (acknowledging disparity amongst different types of drugs in sentencing requirements); Cynthia Powell: 25 Years for 35 Pills, FAMILIES AGAINST MANDATORY MINIMUMS, https://famm.org/stories/cynthia-powell-25-years-35-pills-2/ (last visited Dec. 16, 2019) [https://perma.cc/FE8U-XWJD] (demonstrating devastating effects of mandatory minimum sentence on nonviolent offender). 8 See Cynthia Powell: 25 Years for 35 Pills, supra note 7 (describing Cynthia’s reasons for selling prescription diabetes medication). 2020] ONE SHOULD NOT PAY FOR ALL 69

easy thing, but I can’t do anything else.’ The mandatory minimum stripped [the judge] of all discretion.9

The accused has a constitutional right to require the prosecutor to prove every element of the charged offense to the jury beyond a reasonable doubt.10 The utilization of aggressive prosecutorial methods regarding mandatory minimums has sparked a debate amongst the circuits over the constitutionality of sentencing a defendant based on the quantity of drugs recovered from the entire conspiracy that he or she was involved in.11 Since the Supreme Court held in Alleyne v. United States12 that the constitutional right to proof beyond a reasonable doubt applies to facts triggering mandatory minimum sentences, there has been a shift in the circuits from the requirement that the prosecutor show conspiracy-wide drug quantity in order to invoke mandatory minimum sentences for all defendants involved to a defendant-specific burden of proof regarding the drug quantity.13 In a post-

9 See id. (demonstrating problematic nature of mandatory minimums where judge has no discretion in sentencing). 10 See U.S. CONST. amend. VI (describing rights in criminal proceedings).

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence [sic].

Id. (emphasis added); see Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (“‘[U]nder . . . the notice and jury trial guarantees of the Sixth Amendment, any fact other than prior conviction[] that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.’” (quoting Jones v. United States, 526 U.S. 227, 243, n.6 (1999))). 11 See United States v. Stoddard, 892 F.3d 1203, 1220 (D.C. Cir. 2018) (recognizing circuit split on issue). The D.C. Circuit Court of Appeals held, “‘a defendant convicted of conspiracy to deal drugs, in violation of § 846, must be sentenced, under § 841(b), for the quantity of drugs the jury attributes to him as a reasonably foreseeable part of the conspiracy.’” Id. at 1221 (quoting United States v. Law, 528 F.3d 888, 906 (D.C. Cir. 2008)); but see United States v. Phillips, 349 F.3d 138, 142–43 (3d Cir. 2003), vacated on other grounds by Barbour v. United States, 543 U.S. 1102 (2005) (“In drug conspiracy cases, Apprendi requires the jury to find only the drug type and quantity element as to the conspiracy as a whole, and not the drug type and quantity attributable to each co-conspirator.”). “Once the jury makes these findings, it is for the sentencing judge to determine by a preponderance of the evidence the drug quantity attributable to each defendant . . . .” Phillips, 349 F.3d at 143. 12 570 U.S. 99 (2013). 13 See Stoddard, 892 F.3d at 1220 (recognizing shift in two circuits from initially adopting conspiracy-wide approach to individualized approach); see also United States v. Gibson, No. 15- 6122, 2016 U.S. App. LEXIS 21141 at *2–3 (6th Cir. Nov. 21, 2016), vacated, 854 F.3d 367 (6th Cir. 2017) (applying individualized approach); but see United States v. Gibson, 874 F.3d 544, 544 (6th Cir. 2017) (reinstating district court’s sentence based on conspiracy-wide approach); see also 70 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Alleyne world, it is likely unconstitutional to sentence a defendant in compliance with a mandatory minimum requirement if the quantity of drugs has not been proven beyond a reasonable doubt attributable to him as an individual, deterring exposure to jail time for an unforeseen quantity of drugs.14

II. HISTORY OF U.S. DRUG POLICY AND APPLICATION OF APPRENDI AND ALLEYNE

Drug policy has had a profound effect on the United States criminal justice system over the last forty years, largely emerging from President Nixon’s declaration that drug abuse is “America’s public enemy number one.”15 In October of 1982, Ronald Reagan addressed the nation during a radio broadcast and announced his intent to crack down on drug prosecutions, “We’re making no excuses for drugs—hard, soft, or otherwise.

United States v. Stiger, 413 F.3d 1185, 1193 (10th Cir. 2005) (recognizing that “[a] jury is not required to make individualized findings as to each coconspirator [sic] because ‘the sentencing judge’s findings do not . . . have the effect of increasing an individual defendant’s exposure beyond the statutory maximum justified by the jury’s guilty verdict.’” (citation omitted)). Stiger, however, was overturned 12 years later. See United States v. Ellis, 868 F.3d 1155, 1176 (10th Cir. 2017). “[A] defendant can be held ‘accountable for that drug quantity which was within the scope of the agreement and reasonably foreseeable’ to him.” Id. at 1170 (quoting United States v. Dewberry, 790 F.3d 1022, 1030 (10th Cir. 2015)). 14 See Dewberry, 790 F.3d at 1030 (holding defendant “can be held accountable for that drug quantity which was within the scope of agreement and reasonably foreseeable to him” (citation omitted)). In order to highlight the impact of the amount of drugs on sentencing, the court highlighted, “[i]f he had been found instead to have distributed only 28 grams or more and less than 280 grams of crack, with his prior conviction, he would have been subject to a 10-year mandatory minimum,” as opposed to the 20-year mandatory minimum he received for distribution of 280 grams or more. Id. at 1029; see Stoddard, 892 F.3d at 1221 (stating that “‘reasonable foreseeability’ shapes the outer bounds of co-conspirator liability, and it applies to drug quantities that trigger enhanced penalties, just the same as it applies to other acts committed by co-conspirators.”); United States v. Rangel, 781 F.3d 736, 742–43 (4th Cir. 2015) (stating sentencing requirement unconstitutional where court “‘effectively attributed to [the defendant], an individual member of the conspiracy, the quantity of cocaine base distributed by the entire conspiracy.’” (quoting United States v. Collins, 415 F.3d 304, 314 (4th Cir. 2005))). 15 See Don Stemen, Beyond the War: The Evolving Nature of the U.S. Approach to Drugs, 11 HARV.L.&POL’Y REV. 375, 375 (2017) (citing Richard Nixon, President of the United States, Remarks About an Intensified Program for Drug Abuse Prevention and Control at the White House Briefing Room (June 17, 1971) (transcript available at https://www.presidency.ucsb.edu/ documents/remarks-about-intensified-program-for-drug-abuse-prevention-and-control) [https://perma.cc/HSZ6-XQWA]) (delineating emerging “concerns about the manufacture, distribution, and possession of drugs . . . .”). “President Reagan’s subsequent pronouncement of drugs as ‘an especially vicious virus of crime’ set a course for national drug policy that emphasized enforcement and punishment over treatment to ‘win the war on drugs.’” Id. (citing Ronald Reagan, President of the United States, Radio Address to the Nation on Federal Drug Policy at Camp David (Oct. 2, 1982) (transcript available at https://www.presidency.ucsb.edu/documents/radio-address- the-nation-federal-drug-policy), available at [https://perma.cc/DS9U-ZXAG]). 2020] ONE SHOULD NOT PAY FOR ALL 71

Drugs are bad, and we’re going after them . . . we’ve taken down the surrender flag and run up the battle flag . . . we’re going to win the war on drugs.”16 Towards the mid-1990s, the perception of drugs in the United States began to shift in the direction of a more rehabilitation-friendly approach, leading to the expansion of drug courts, treatment programs, and alternative sentencing policies for drug offenders.17 Both President Bush and Obama forged forward in the effort toward rehabilitating drug offenders—Bush pushing for increased funding for substance abuse treatment, and Obama declaring the war on drugs an “utter failure,” reducing sentences for all drug offenses under the sentencing guidelines of the federal government.18 Obama-era Attorney General Eric Holder asserted that prosecutors should decline to charge the quantity necessary to trigger mandatory minimums if a defendant’s relevant conduct does not involve the use or threat of violence, the possession of a weapon, the trafficking of drugs to minors, or death or serious bodily injury, the

16 See Reagan, supra note 15 (depicting President Reagan’s optimism regarding crack down on drugs); see also Stemen, supra note 15, at 375 (explaining how Reagan’s drug policy led to adoption of new mandatory sentences and sentence enhancements). 17 See Stemen, supra note 15, at 376 (exhibiting ways jurisdictions sought “to divert drug offenders from prison and to develop community- and prison-based treatment programs for drug users.”); see also Office of Justice Programs, Looking at a Decade of Drug Courts, DRUG CT. CLEARINGHOUSE AND TECHNICAL ASSISTANCE PROJECT (June 1999), https://www.ncjrs. gov/html/bja/decade98.htm [https://perma.cc/EP4S-NZZ2] (analyzing shift to drug court to curb recidivism rates). 18 See Stemen, supra note 15, at 377 (articulating continuation of shift towards rehabilitation under Bush and Obama); see also WHITE HOUSE, NATIONAL DRUG CONTROL STRATEGY, 20 (March 2004) (“[Drug offenders] have an immediate need, and we have launched a new program to address it—Access to Recovery. Begun in . . . 2004, with an additional $100 million requested in fiscal year 2005, the program will expand access to clinical substance abuse treatment . . . .”); Bernd Debusmann, Obama and the Failed War on Drugs, REUTERS (Apr. 16, 2012, 1:55 PM), https://www.reuters.com/article/us-column-debusmann-drugs/obama-and-the-failed-war-on- drugs-bernd-debusmann-idUSBRE83F0ZR20120416 [https://perma.cc/5577-V5HD] (quoting Obama from 2004 debate at Northwestern University); Sensible Sentencing Reform: The 2014 Reduction of Drug Sentences, U.S. SENT’G COMM’N, at 1–2, available at https://www.ussc.gov /sites/default/files/pdf/research-and-publications/backgrounders/profile_2014_drug_amendment .pdf [https://perma.cc/WT43-A89N] (“Congress set up the ‘safety valve,’ which allows low-level drug offenders who cooperate to be sentenced below the mandatory minimum . . . provid[ing] much greater incentive to plead.”); Eric H. Holder, Attorney General, Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases, 30 FED. SENT’G REP. 12, 12 (Oct. 1, 2017) (emphasizing need to “ensure that our most severe mandatory minimum penalties are reserved for serious, high-level, or violent drug traffickers.”). “Long sentences for low-level, non-violent drug offenses do not promote public safety, deterrence, and rehabilitation.” Holder, supra note 18; but see Tim Dickinson, Why America Can’t Quit the Drug War, ROLLING STONE (May 5, 2016, 4:07 PM), https://www.rollingstone.com/culture/culture- news/why-america-cant-quit-the-drug-war-47203/ [https://perma.cc/AU87-ML44] (“Despite strides toward a more sane national drug policy, the deeper infrastructure of the War on Drugs remains fundamentally unaltered under Obama.”). 72 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV defendant is not a supervisor of others within a criminal organization, tied to a large-scale organization, and the defendant does not have a significant criminal history.19 Trump’s presidency has brought about a sharp turn away from the ever-growing pattern of distancing the country from the war on drugs.20

[U]nder the Due Process Clause of the Fifth Amendment and the notice and jury trial guarantees of the Sixth Amendment, any fact (other than prior conviction) that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt.21

Title 21, § 841 of the United States Code sets out the illegality of the manufacturing and distribution of controlled substances and specifies the mandatory minimum and maximum penalties associated with particular quantities of controlled substances.22 The prosecutor may also charge a drug offender with conspiracy to commit those offenses, and subject them to the same penalties as if they had committed the offense that was the “object of the attempt or conspiracy.”23 In order to sentence a defendant to a penalty

19 See Holder, supra note 18, at 13 (incentivizing lenient sentence proposals for federal prosecutors). 20 See Ford, supra note 3 (“It is a core principle that prosecutors should charge and pursue the most serious, readily provable offense . . . . By definition, the most serious offenses are those that carry the most substantial guidelines sentence, including mandatory-minimum sentences.”). 21 See Apprendi v. New Jersey, 530 U.S. 466, 476 (2000) (quoting Jones v. United States, 526 U.S. 227, 243, n.6 (1999)).

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury . . . nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law . . . .

U.S. CONST. amend. V. 22 See 21 U.S.C. § 841(a) (2018) (“Except as authorized by this title, it shall be unlawful for any person knowingly or intentionally . . . to manufacture, distribute, or dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance; or . . . a counterfeit substance.”); Id. § 841(b) (proscribing sentencing requirements for particularized quantities of controlled substances). 23 Id. § 846 (dictating penalties for conspiracy to manufacture or distribute controlled substances). “Any person who attempts or conspires to commit any offense defined in this title shall be subject to the same penalties as those prescribed for the offense, the commission of which was the object of the attempt or conspiracy.” Id. 2020] ONE SHOULD NOT PAY FOR ALL 73 reflecting the controlled substance’s weight, the quantity of that substance must be presented to the jury and proven beyond a reasonable doubt.24

If a defendant faces punishment beyond that provided by statute when an offense is committed under certain circumstances but not others, it is obvious that both the loss of liberty and the stigma attaching to the offense are heightened; it necessarily follows that the defendant should not—at the moment the [government] is put to proof of those circumstances—be deprived of the protections that have, until that point, unquestionably attached.25

In Alleyne v. United States, the United States Supreme Court applied the Apprendi ruling to factors triggering a mandatory minimum sentence, holding that any fact “[e]levating the low end of a sentencing range heightens the loss of liberty associated with the crime” and therefore must be proven to the jury beyond a reasonable doubt.26 The Court concluded that including every fact that was a basis for imposing or increasing punishment in the

24 See Apprendi, 530 U.S. at 476–77 (emphasizing constitutional importance of proving all elements of crime to jury beyond reasonable doubt).

At stake . . . are constitutional protections of surpassing importance: the proscription of any deprivation of liberty without “due process of law,” and the guarantee that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury,” . . . . Taken together, these rights indisputably entitle a criminal defendant to “a jury determination that [he] is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.”

Id. (quoting United States v. Gaudin, 515 U.S. 506, 510 (1995)); see 2CRIMINAL PROCEDURE CHECKLISTS 6TH AMEND. § 7:16 (2018) (“The judge] can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.”) (citing Mathis v. United States, 136 S. Ct. 2243, 2252 (2016)); Nancy J. King & Susan R. Klein, Acceptance of Responsibility and Conspiracy Sentences in Drug Prosecutions After Apprendi, 14 FED.SENT’G R. 165 (2002) (discussing impact of Apprendi on drug prosecution). Before Apprendi, where the defendant decided to plead guilty but could not come to an agreement with the government as to the amount of drugs that would establish his offense level under the guidelines, both parties would enter into the agreement without quantifying the amount and leave that determination to the judge at sentencing. King, supra note 24. After Apprendi, “a plea agreement that does not specify drug quantity, now an element of each greater offense, will support only a sentence within the statutory maximum of the lesser offense, even if the greater drug amount is later established at sentencing.” Id. 25 See Apprendi, 530 U.S. at 484 (noting that there should be heightened protections for defendants who face sentence greater than statute). 26 See Alleyne v. United States, 570 U.S. 99, 113 (2013) (declaring that any fact increasing sentencing floor is essential ingredient of offense); see also 1J.BISHOP,LAW OF CRIMINAL PROCEDURE § 80, 51 (2d ed. 1872) (defining crime). “Crime” consists of every fact which “is in law essential to the punishment sought to be inflicted . . .” or the whole of the wrong “to which the law affixes . . . punishment.” Alleyne, 570 U.S. at 109 (citing BISHOP at 51). 74 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV indictment was a well-established practice supported by widely recognized principles.27 In the 5-4 decision by the Court, Justice Thomas extended Apprendi’s requirement of proof to facts increasing the mandatory minimum of the offense, recognizing that the elevation of the low end of a sentencing range heightens the potential for loss of liberty:

Just as the maximum of life marks the outer boundary of the range, so seven years marks its floor. And because the legally prescribed range is the penalty affixed to the crime, it follows that a fact increasing either end of the range produces a new penalty and constitutes an ingredient of the offense.28

As mandatory minimum sentences have the potential to vastly increase exposure to harsher verdicts and longer prison time, defendants charged with conspiracy to commit a drug violation face potentially daunting punishments if they are sentenced pursuant to the drug quantity attributed to the conspiracy as a whole.29 Shortly after Apprendi was decided, courts were

27 See Alleyne, 570 U.S. at 110 (recognizing historical emphasis on proof of all elements contributing to punishment); see also United States v. Fisher, 25 F.Cas. 1086, 1086 (C.C. Ohio 1849) (“A [mail carrier] is subject to a higher penalty where he steals a letter out of the mail, which contains an article of value . . . the indictment must allege the letter contained an article of value, which aggravates the offense and incurs a higher penalty.”); Hope v. Commonwealth, 50 Mass. 134, 137 (1845) (holding value of stolen property in larceny case to be element of offense).

Our statutes, it will be remembered, prescribe the punishment for larceny, with reference to the value of the property stolen; and for this reason, as well as because it is in conformity with long established practice, the court are of [the] opinion that the value of the property alleged to be stolen must be set forth in the indictment.

Hope, 50 Mass. at 137; see Ritchey v. State, 7 Blackf. 168, 169 (Ind. 1844) (declaring indictment must allege value of destroyed property under arson statute); J. ARCHBOLD,PLEADING & EVIDENCE IN CRIMINAL CASES 51 (15th ed. 1862) (“Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision.”). 28 See Alleyne, 570 U.S. at 112 (emphasizing Court’s decision is supported by common sense). “It is impossible to dissociate the floor of a sentencing range from the penalty affixed to the crime . . . . Indeed, criminal statutes have long specified both the floor and ceiling of sentence ranges, which is evidence that both define the legally prescribed penalty.” Id.; Apprendi, 530 U.S., at 478–79 (requiring that facts increasing mandatory minimums be defined so defendants may predict applicable penalty). 29 See United States v. Stoddard, 892 F.3d 1203, 1222 (D.C. Cir. 2018) (recognizing defendants’ exposure to significantly higher sentence attributed to conspiracy’s drug quantity not individualized quantity); Hansler, supra note 3 (emphasizing harsh sentences resulting from mandatory minimums). “[T]hose convicted in the 2016 fiscal year of crimes carrying mandatory minimum penalties received an average of 110 months—approximately 9 years—in prison. That 2020] ONE SHOULD NOT PAY FOR ALL 75 permitted to convict each individual conspirator for agreeing to participate in a drug conspiracy of a specified type and amount without proof that they reasonably should have foreseen the amount or type of all drugs involved.30 Since the Alleyne decision, however, all of the circuits that have explicitly addressed the issue determined that there must be an individualized jury finding as to the quantity and type of drugs attributable to each individual conspirator in order to trigger a mandatory minimum sentence.31

III. THE CIRCUIT SPLIT

Although it is without dispute amongst the circuits that a drug quantity must be proven to the jury beyond a reasonable doubt, there is a disagreement surrounding the constitutional implications of sentencing a coconspirator based on the conspiracy’s total drug quantity.32 Under both Apprendi and Alleyne, each subsection of 21 U.S.C. § 841(b)(1) is a separate crime prescribed with its own drug quantity and sentencing range.33 The

was four times the average sentence—a bit over 2 years—for those convicted of a crime without the mandatory minimum.” Hansler, supra note 3. 30 See King and Klein, supra note 24 (examining state of drug conspiracy sentencing after Apprendi). “[P]resently courts do not demand that the jury determine that each individual conspirator agree that the conspiracy involve the possession with intent to deliver the type and amount of drugs involved in the conspiracy itself.” Id.; see United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003) (“Apprendi . . . does not require defendant-specific findings of drug type and quantity in drug-conspiracy cases.”); United States v. Fields, 251 F.3d 1041, 1043–1044 (D.C. Cir. 2001) (stating individualized knowledge of drug quantity not necessary to prove to jury); United States v. Promise, 255 F.3d 150, 157 n.6 (4th Cir. 2001) (deciding that “the task of identifying the amount of drugs for which the defendant should be held accountable . . . is left to the district court.”); United States v. Sanchez, 269 F.3d 1250, 1266 n.28 (11th Cir. 2001) (recognizing knowledge of amount of drugs in conspiracy not element of offense under 18 U.S.C. § 841). 31 See Stoddard, 892 F.3d at 1220 (“The circuits that earlier adopted the conspiracy-wide approach have, at times, failed to grapple with it in subsequent published and unpublished cases decided after Alleyne.”). “It is a core principle of conspiratorial liability that a co-conspirator may be held liable for acts committed by co-conspirators during the course of the conspiracy only when those acts are ‘in furtherance of the conspiracy’ and ‘reasonably foreseeable’ to the defendant.” Id. at 1221 (citing Pinkerton v. United States, 328 U.S. 640, 647–48 (1946)). 32 See id. at 1220 (quoting United States v. Pizarro, 772 F.3d 284, 292 (1st Cir. 2014)) (recognizing split amongst circuits in answering “whether it is the individualized drug quantity that is a fact that increases the mandatory minimum sentence.”). “The question remains . . . whether, as the District Court found, the amount of drugs attributable to the conspiracy as a whole can be the fact which triggers the mandatory minimum for an individual defendant.” Id. 33 See Pizarro, 772 F.3d at 292 (stating Supreme Court held each subsection is separate crime).

Citing Alleyne and Apprendi, the Supreme Court in Burrage v. United States, 134 S. Ct. 881 (2014), explained that because an aggravating element in § 841(b)(1) . . . “increased the minimum and maximum sentences to which the defendant was exposed, it is an element that must be submitted to the jury and found beyond a reasonable doubt.” . . . Just as the “death results” element [addressed in Burrage] makes the distribution of drugs 76 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV majority of circuits have adopted the individualized approach, while a small number of courts still have not explicitly rejected the conspiracy-wide approach.34 The D.C., First, Fourth, Fifth, and Ninth Circuits all embrace the individualized approach.35 These circuits have universally determined that the drug quantity triggering an individual’s mandatory minimum sentence must have been foreseeable to him.36 In particular, long before Apprendi and Alleyne were decided, the Fifth and Ninth Circuits held steadfast to the rule that a particular defendant must have a connection with the quantity of drugs that would trigger his penalty for conspiracy to distribute.37 The courts in

where death results a separate crime . . . without a death resulting, drug quantity in § 841(b)(1) creates aggravated conspiracy and possession offenses.

Id. (citations omitted). 34 See Stoddard, 892 F.3d at 1220 (“The circuits that earlier adopted the conspiracy-wide approach have, at times, failed to grapple with it in subsequent published and unpublished cases decided after Alleyne.”). 35 See id. at 1221 (“We adopt the individualized approach to drug-quantity determinations that trigger an individual defendant’s mandatory minimum sentence.”); Pizarro, 772 F.3d at 293–94 (conforming to individualized sentencing method).

[F]or a [drug] conspiracy conviction. . . the jury must now find that the defendant (1) conspired, (2) knowingly or intentionally to distribute [a controlled substance], (3) in a conspiracy that involved a total of [a certain quantity of that controlled substance]. . . (4) where at least [that same quantity was] foreseeable to the defendant.

Pizarro, 772 F.3d at 293–94 (citations omitted); United States v. Rangel, 781 F.3d 736, 744 (4th Cir. 2015) (applying individualized principle that “district court . . . [must find defendant himself] responsible” for quantity); United States v. Haines, 803 F.3d 713, 739 (5th Cir. 2015) (holding that defendants’ mandatory minimum was improperly determined). “[Defendants] should have been sentenced based on the drug quantity attributable to them as individuals, not the quantity attributable to the entire conspiracy.” Haines, 803 F.3d at 739. See United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003) (reversing and remanding case where district court sentenced defendant based on conspiracy as whole). “In sentencing a defendant convicted of conspiracy to distribute a controlled substance, a district court may not automatically count as relevant conduct the entire quantity of drugs distributed by the conspiracy.” Id. (citing United States v. Garcia- Sanchez, 189 F.3d 1143, 1147 (9th Cir. 1999)). 36 See Haines, 803 F.3d at 740 (highlighting reasonable foreseeability requirement). “[F]or a sentencing court to attribute to a defendant a certain quantity of drugs, the court must make two separate findings: (1) the quantity of the drugs in the entire operation and (2) the amount which each defendant knew or should have known was involved in the conspiracy.” Id. (quoting United States v. Quiroz-Hernandez, 48 F.3d 858, 870 (5th Cir. 1995)); Banuelos, 322 F.3d at 704 (explaining requirements to sentence defendant on drug conspiracy charge). “[T]he court must find the quantity of drugs that either (1) fell within the scope of the defendant’s agreement with his coconspirators [sic] or (2) was reasonably foreseeable to the defendant.” Banuelos, 322 F.3d at 704. 37 See Haines, 803 F.3d at 740 (“For purposes of . . . determining statutory minimum and maximum sentences, our cases always have limited the defendant’s liability to the quantity of drugs with which he was directly involved or that was reasonably foreseeable to him.”); Banuelos, 322 F.3d at 704 (chronicling Ninth Circuit’s well-settled application of individualized method to 2020] ONE SHOULD NOT PAY FOR ALL 77 this majority have wholly rejected the government’s oft-contended argument that reasonable foreseeability flows automatically from membership in a conspiracy.38 Originally, the Third and Seventh Circuits followed the conspiracy- wide approach.39 For these circuits, the courts specified that the jury must determine beyond a reasonable doubt: (1) the existence of a conspiracy, (2) the defendant’s involvement in it, and (3) the requisite drug type and quantity involved in the conspiracy as a whole.40 Several cases in both the Third and Seventh Circuits, however, have called into question whether the conspiracy- wide position is still being followed, but they have yet to concretely reject it.41 Although these circuits have not explicitly rejected the conspiracy-wide

sentencing). The Ninth Circuit held that a court may not impose a statutory mandatory minimum without making a finding that “a particular defendant had some connection with the larger amount on which the sentencing is based or that he could reasonably foresee that such an amount would be involved in the transactions of which he was guilty.” Banuelos, 322 F.3d at 704 (quoting United States v. Becerra, 992 F.2d 960, 966–67 & n.2 (9th Cir. 1993)); United States v. Quiroz-Hernandez, 48 F.3d 858, 870 (5th Cir. 1995) (setting Ninth Circuit precedent in regards to this issue).

Under the Sentencing Guidelines, a defendant who participates in a drug conspiracy is accountable for the quantity of drugs, which is attributable to the conspiracy and reasonably foreseeable to him. “Reasonable foreseeability does not follow automatically from proof that [the defendant] was a member of the conspiracy.” Reasonable foreseeability requires a finding separate from a finding that the defendant was a conspirator.

Quiroz-Hernandez, 48 F.3d at 870 (citations omitted). 38 See Stoddard, 892 F.3d at 1221 (highlighting importance of foreseeability for each individual co-conspirator); United States v. Puma, 937 F.2d 151, 160 (5th Cir. 1991) (rejecting government’s argument that defendant must have reasonably foreseen quantity of drugs in conspiracy); but see Pizarro, 772 F.3d at 290 (opining government properly conceded error occurred in regards to sentencing). 39 See United States v. Phillips, 349 F.3d 138, 142 (3d Cir. 2003), vacated on other grounds, Barbour v. United States, 543 U.S. 1102 (2005) (holding that “Apprendi does not require a jury to make defendant-specific determinations of drug type and quantity in conspiracy cases.”). “The finding of drug quantity for purposes of determining the statutory maximum is, in other words, to be an offense-specific, not a defendant-specific, determination.” Id. at 143. See United States v. Knight, 342 F.3d 697, 711–12 (7th Cir. 2003) (conforming to conspiracy-wide approach). “Apprendi . . . does not require defendant-specific findings of drug type and quantity in drug- conspiracy cases.” Id. at 710. 40 See Phillips, 349 F.3d at 143 (listing requirements to sentence defendant on drug conspiracy charge); Knight, 342 F.3d at 712 (identifying what jury must determine beyond reasonable doubt). “[T]he jury [must determine] whether each defendant was guilty of participating in the conspiracy and then [must determine] that the conspiracy involved a type and quantity of drugs sufficient to trigger the statutory maximum . . . .” Knight, 342 F.3d at 712. 41 See United States v. Miller, 645 F. App’x 211, 218 (3d Cir. 2016) (finding Alleyne error harmless where “jury did not determine [a drug quantity] directly attributable” to individual defendant); United States v. Cruse, 805 F.3d 795, 817 (7th Cir. 2015) (contradicting Seventh Circuit’s conspiracy-wide position, though not on Alleyne grounds). 78 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV approach, they certainly seem to struggle with its application in the wake of Alleyne, and may have abandoned the approach in practice.42 Both the Sixth and Tenth Circuits have openly questioned their application of the conspiracy-wide approach following the Alleyne determination.43 The Sixth Circuit appeared to adopt the conspiracy-wide approach in Robinson, but later questioned whether it was consistent with constitutional principles in both Young and Gibson, reluctantly applying the traditional conspiracy-wide test.44 The Tenth Circuit, which explicitly adopted the conspiracy-wide approach in Stiger, shifted after Alleyne and determined in Ellis that it was error for the defendant to be sentenced according to a mandatory minimum where the jury did not find the amount of drugs individually attributable to him.45

The jury was told that Cruse and McClain were responsible for “the amount of cocaine involved in the agreement, and all amounts involved in all acts of the coconspirators committed in furtherance of the conspiracy.” This instruction omitted the Pinkerton principle that coconspirator liability only extends to those criminal acts that (1) were reasonably foreseeable to the defendants; and (2) occurred during the time that they were members of the conspiracy . . . . Everyone agrees that the jury should have been instructed on the Pinkerton doctrine.

Cruse, 805 F.3d at 817. 42 See Miller, 645 Fed. App’x at 218 (“This lack of an individualized determination . . . was error in light of Alleyne . . . . However, such a lapse was harmless.”). 43 See United States v. Robinson, 547 F.3d 632, 639 (6th Cir. 2008) (“Here, the ‘fact’ that increases the default penalty for a conspiracy to distribute drugs is the quantity of drugs involved in the conspiracy.”); but see United States v. Young, 847 F.3d 328, 367 (6th Cir. 2017) (stating “regardless of which approach we apply to [defendant’s] sentence, the outcome is the same.”); United States v. Gibson, No. 15-6122, 2016 U.S. App. LEXIS 21141, at *1–2 (6th Cir. Nov. 21, 2016) (utilizing conspiracy-wide approach), vacated, 854 F.3d 367 (6th Cir. 2017) (en banc); United States v. Gibson, 874 F.3d 544 (6th Cir. 2017) (en banc) (addressing case amongst full circuit, ultimately dividing equally and reinstating conspiracy-wide approach utilized in trial court); see also United States v. Stiger, 413 F.3d 1185, 1193 (10th Cir. 2005) (holding “[t]he jury is not required to make individualized findings as to each coconspirator because the sentencing judge’s findings do not, because they cannot, have the effect of increasing an individual defendant’s sentencing exposure beyond the statutory maximum justified by the jury’s guilty verdict.”). The 10th Circuit later held that the district court committed the Alleyne of error convicting defendant “without the jury’s having found his individually attributable amount of cocaine. . . .” United States v. Ellis, 868 F.3d 1155, 1170 (10th Cir. 2017). 44 See Young, 847 F.3d at 367 (avoiding choice between individualized approach and conspiracy-wide approach). “[T]here is no need for us to reconcile these cases at this time.” Id.; Gibson, 874 F.3d at 544 (announcing even divide amongst en banc circuit). Because the judges of the Sixth Circuit were unable to come to an agreement on what method to use, the sentence imposed by the district court was affirmed, where the district court stated that “[b]ecause Gibson pleaded guilty to conspiring to distribute methamphetamine, and admitted that the conspiracy ‘involved’ 50 grams or more of methamphetamine, the drug conspiracy statute exposes him to the crime of distributing 50 grams of more of methamphetamine, together with its ten-year mandatory minimum sentence.” Gibson, 2016 LEXIS 21141, at *2. 45 See Ellis, 868 F.3d at 1177 (announcing Alleyne directly overruled Stiger “on one point”). 2020] ONE SHOULD NOT PAY FOR ALL 79

IV. ANALYSIS

The Supreme Court has not addressed the constitutionality of sentencing a defendant to a mandatory minimum sentence based off a drug quantity attributable to the conspiracy he or she was involved in without conclusively determining that the defendant should have reasonably foreseen the quantity of drugs.46 In order to determine whether the Supreme Court has implied through Alleyne that sentencing a defendant based on a conspiracy-wide quantity of drugs is in fact unconstitutional, the holding and reasoning of the Court must be examined thoroughly, as it holds tremendous importance in the understanding of this realm of the law.47 According to the Court in Alleyne, “[t]he touchstone for determining whether a fact must be found by a jury beyond a reasonable doubt is whether the fact constitutes an ‘element’ or ‘ingredient’ of the charged offense.”48 All of the circuits agree

In a reversal of fortune, Stiger’s conspiracy-wide maximum sentence is now limited by the mandatory-minimum sentence’s statutory range. For example, if a defendant’s individually attributable amount of crack cocaine is 100 grams, that compels a statutory sentencing range of 5 to 40 years, under § 841(b)(1)(B). And even if the conspiracy- wide crack-cocaine amount far exceeds 280 grams, the maximum cannot rise past 40 years without creating a new sentencing range of 5 years to life. Nothing in 841(b) suggests that Congress intended us to merge its precise statutory sentencing ranges in this fashion.

Id. at 1178. 46 See United States v. Stoddard, 892 F.3d 1203, 1220 (D.C. Cir. 2018) (noting indecision on issue of individualized versus conspiracy-wide sentencing method).

The question remains “whether it is the individualized drug quantity that is a fact that increases the mandatory minimum sentence . . . or whether, as the District Court found, the amount of drugs attributable to the conspiracy as a whole can be the fact which triggers the mandatory minimum for an individual defendant.”

Id. (quoting United States v. Pizarro, 772 F.3d 284, 292 (1st Cir. 2014)). 47 See id. at 1220 (recognizing courts’ reliance on Alleyne in declaring conspiracy-wide approach unconstitutional).

Although some circuits have used the conspiracy-wide approach, it has been called into question by Alleyne and subsequent cases from those circuits. Notably, the circuits to adopt the conspiracy-wide approach did so before Alleyne was decided in 2013, while all circuits to explicitly address the issue in Alleyne’s wake have adopted or followed the individualized approach. The circuits that earlier adopted the conspiracy-wide approach have, at times, failed to grapple with it in subsequent published and unpublished cases decided after Alleyne.

Id. 48 See Alleyne v. United States, 570 U.S. 99, 107 (2013) (defining which facts constitute an element of offense). Applying Apprendi’s reasoning to mandatory minimum offenses, Alleyne specifies that elements include “not only facts that increase the ceiling, but also those that increase 80 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV that the quantity of drugs that a defendant is held accountable for is an element of the offense and therefore must be charged to the jury and proven beyond a reasonable doubt.49 The disagreement among the circuits stems from the confusion over which particular approach to use in sentencing a defendant in a conspiracy drug case.50

A. Principles Outlined in Alleyne Show Support for Individualized Approach

The principles set out in Alleyne coincide quite conclusively with the individualized approach.51 The Alleyne Court’s reasoning that the “linkage of facts with particular sentence ranges . . . reflects the intimate connection between crime and punishment” demonstrates why the individualized approach is much more suited to the nation’s constitutional values.52 In order

the floor . . . [because both] alter the prescribed range of sentences to which a defendant is exposed and do so in a manner that aggravates the punishment.” Id. at 108. 49 See Stoddard, 892 F.3d at 1219 (noting requirement of jury determination for mandatory- minimum drug quantity); Haines, 803 F.3d at 738 (“Because the quantity of heroin involved affects [defendants’] minimum sentences under § 841, it must be found by a jury.”); United States v. Rangel, 781 F.3d 736, 743 (4th Cir. 2015) (considering quantity of drugs element that must be proven to jury); Pizarro, 772 F.3d at 293 (“In a drug conspiracy . . . conviction with a mandatory minimum and statutory maximum based on drug quantity, the jury must find those requisite drug quantities.”); United States v. Robinson, 547 F.3d 632, 639 (6th Cir. 2008) (acknowledging in conspiracy-wide jurisdiction drug quantity must be proven to jury); United States v. Banuelos, 322 F.3d 700, 704–05 (9th Cir. 2005) (recognizing drug quantity must be proven to jury beyond reasonable doubt); United States v. Knight, 342 F.3d 697, 710 (7th Cir. 2003) (“[D]efendants may be subject to a statutorily enhanced sentence based on drug type and quantity, as provided in § 841(b), only if those facts are charged in the indictment and proven to a jury beyond a reasonable doubt.”). 50 See United States v. Young, 847 F.3d 328, 367 (6th Cir. 2017) (avoiding decision of which approach to use). “[R]egardless of which approach we apply to [the defendant’s] sentence, the outcome is the same. Thus, there is no need for us to reconcile these cases at this time.” Id.; Gibson, 874 F.3d at 544 (affirming lower court’s use of conspiracy-wide approach after even divide amongst en banc circuit). But see Stoddard, 892 F.3d at 1222 (“[T]he Alleyne/Burrage paradigm supports our conclusion that the individualized approach to determining a mandatory-minimum- triggering drug quantity is correct.”); Banuelos, 322 F.3d at 704 (holding steadfast to accuracy of individualized approach). 51 See Stoddard, 892 F.3d at 1222 (explaining Alleyne’s support of individualized approach). “Alleyne sets up this paradigm . . . conspiring to violate § 841(a)(1) is a ‘lesser-included offense’ of conspiring to violate § 841(a)(1) when the drug quantity meets a threshold that triggers an enhanced sentence.” Id.; see United States v. Haines, 803 F.3d 713, 741 (5th Cir. 2015) (“Apprendi and Alleyne require the jury . . . to determine the amount which each defendant knew or should have known was involved in the conspiracy” (internal quotation marks omitted)). 52 See Alleyne, 570 U.S. at 109 (trumpeting consistency of Court’s holding with ancient principles of justice). “Consistent with this connection between crime and punishment, various treatises defined crime as consisting of every fact which is in law essential to the punishment sought to be inflicted.” Id. (internal quotation marks omitted). 2020] ONE SHOULD NOT PAY FOR ALL 81 to preserve this “intimate connection,” a defendant’s punishment should directly correlate with the infraction that he or she committed.53 The connection between crime and punishment is ruptured when a defendant is punished based on a quantity of drugs that he or she could not have reasonably foreseen.54 A penalty imposed evenly on each member of a conspiracy without regard to that person’s own level of involvement casts a shadow on the justice system’s principle of the “intimate connection between crime and punishment,” subjecting a defendant to a disproportionately severe penalty for criminal conduct that he or she personally may not have committed.55

B. Government’s Willingness to Comply with the Individualized Approach

The individualized approach to drug conspiracy sentencing is strongly bolstered by the government’s willingness to comply with this approach.56 In the government’s brief to the Fifth Circuit in Haines, the

53 See Stoddard, 892 F.3d at 1221 (describing importance of holding one liable only for things “reasonably foreseeable” to him). “It is a core principle of conspiratorial liability that a coconspirator may be held liable for acts committed by co-conspirators during the course of the conspiracy only when those acts are ‘in furtherance of the conspiracy’ and ‘reasonably foresee[able]’ to the defendant.” Id. (quoting Pinkerton v. United States, 328 U.S. 640, 647–48 (1946)); Haines, 803 F.3d at 741 (emphasizing importance of personal wrongdoing). “[A]n individual convicted of conspiring to distribute at least 1,000 kilograms of marijuana . . . is not necessarily subject to the ten-year minimum. Only if the defendant is responsible for at least 1,000 kilograms . . . does the mandatory statutory minimum apply.” Haines, 803 F.3d at 741 (quoting United States v. Gurrusquieta, No. 01-11034, 2002 WL 31730264, at *3 (5th Cir. Nov. 21, 2002)). 54 See Alleyne, 570 U.S. at 113 (opining about connection between punishment and wrongdoing). “Why else would Congress link an increased mandatory minimum to a particular aggravating fact other than to heighten the consequences for that behavior?” Id.; Pizarro, 772 F.3d at 292 (describing longstanding custom of individualized method). 55 See Alleyne, 570 U.S. at 108 (recognizing importance of proving wrongdoing to jury). The importance that the Supreme Court places on proving every element of a crime to the jury that has the potential to increase a mandatory minimum sentence demonstrates the retributivist principle of the American criminal justice system to punish an individual only for the crimes that the government can prove he personally committed. Id.; see Stoddard, 892 F.3d at 1220 (noting defendants’ exposure to significantly higher sentence if conspiracy-wide method is utilized); Hansler, supra note 3, at 2 (highlighting devastating effect of conspiracy-wide sentencing for Alice Johnson). “Johnson was sentenced to life in federal prison without parole in 1996 after being convicted on charges of conspiracy to possess cocaine, attempted possession of cocaine, and money laundering.” Hansler, supra note 3, at 2. 56 See Stoddard, 892 F.3d at 1222 (showcasing government’s general support for individualized approach); Haines, 803 F.3d at 738 (demonstrating government’s agreement with defendants on use of individualized approach to calculate sentence). 82 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV government not only consented to using the individualized approach, but urged it.57

In its brief, the government agrees with the defendants that “at least [as] to imposing a mandatory minimum, . . . the sentence should be based on a defendant-specific approach—a finding as to the type and quantity of drugs that can be attributed to the individual defendant by his personal conduct and reasonable-foreseeability of co-conspirator conduct.”58

In the D.C. Circuit, the government has also demonstrated its preference for the individualized approach.59 “The Government’s general charging and motions practices offer further evidence that the criminal justice system is moving toward the individualized approach,” as the court notes that “the Government’s argument for the conspiracy-wide approach here appears to be a one-case wonder.”60 Even in the Sixth Circuit, which has continued to utilize the conspiracy-wide approach, the government has urged the courts to reconsider, tending to charge defendants using the individualized approach.61

57 See Haines, 803 F.3d at 742 (depicting government’s support). 58 See id. (explaining government’s position).

At the time of sentencing, the government advocated [that] both mandatory minimums and statutory maximums were controlled by the jury’s conspiracy-wide finding. After defendants were sentenced, the Department of Justice shifted its policy, urging that mandatory minimum sentences in drug conspiracy cases should be determined by a jury’s defendant-specific finding, in light of Alleyne.

Id. But see id. (recognizing government’s inconsistent reasoning at trial).

However, at oral argument the government cautioned that the rule for drug quantity findings that increase the mandatory minimum should be the same as the rule for [those] . . . that increase the statutory maximum—and the government suggests that our precedent . . . requires a finding as to the conspiracy-wide quantity for purposes of the statutory maximum.

Id. 59 See Stoddard, 892 F.3d at 1222 (discussing government’s charging practices). 60 See id. (noting government’s inability to show other cases where it argues for adoption of conspiracy-wide approach). “At oral argument, the Government could not safely say that there are any other cases in this Circuit in which it is currently arguing for a court to adopt the conspiracy- wide approach.” Id. 61 See United States v. Young, 847 F.3d 328, 366 & n. 3 (6th Cir. 2017) (addressing government’s contention that court is inconsistent in application of conspiracy-wide approach). “The government asserts that we have been inconsistent in addressing whether mandatory 2020] ONE SHOULD NOT PAY FOR ALL 83

In Young, the government contended that the court’s precedent is unclear, as it decided one case using the individualized approach, another using the conspiracy-wide approach, and later attempted to reconcile the two by utilizing language from both approaches.62 The Sixth Circuit avoided confronting this accusation by stating in its opinion, “there is no need for us to reconcile these cases at this time.”63

C. Clear Lack of Support for Conspiracy-Wide Approach Nationwide

The conspiracy-wide approach has a clear lack of support across the nation—nothing demonstrates this point better than to examine circuits that have once fought for the approach shift their position or toil in an uninspired manner to champion it.64 The Sixth Circuit, up until this point, still expressly utilizes the conspiracy-wide approach.65 In the Sixth Circuit, admission or conviction of a conspiracy involving a certain quantity of drugs “triggers the mandatory-minimum sentence in [this] circuit, regardless of whether [the

minimum sentences for § 846 drug conspiracy offenses are determined by conspiracy-wide or defendant-specific drug quantities.” Id. 62 See id. at 366 (explaining government’s contention).

The government contends that Robinson is inconsistent with United States v. Swiney, 203 F.3d 397 (6th Cir. 2000), because Swiney held that an individualized approach, as articulated in the Sentencing Guidelines, determines the statutory range, whereas Robinson holds that a conspiracy-wide drug quantity determines the statutory penalty range. The government also asserts that our decision in United States v. Watson, 620 F. App’x 493, 509 (6th Cir. 2015) incorrectly reconciled Robinson and Swiney . . . [as defendants] were sentenced to mandatory minimums due to the quantity of drugs attributable to the individual defendants and all reasonably foreseeable quantities of contraband that were within the scope of the conspiracy.

Id. 63 See id. at 362 (avoiding rejection of either approach). 64 See Stoddard, 892 F.3d at 1220 (recognizing struggle of several circuits to grapple with conspiracy-wide approach). “We are also persuaded by the decisions of our sister circuits that have adopted the individualized approach. Those opinions buttress our conclusion here.” Id. at 1222. 65 See id. at 1220 (noting Sixth Circuit’s hesitant reinstatement of sentence based on conspiracy-wide ruling); United States v. Gibson, 874 F.3d 544, 544 (6th Cir. 2017) (dividing equally amongst full panel causing reinstatement of lower court sentence). “The en banc court is evenly divided; therefore, the sentence imposed by the district court is AFFIRMED.” Id. See United States v. Gibson, No. 15-6122, 2016 U.S. App. LEXIS 21141, at *2 (6th Cir. Nov. 21, 2016) (supporting conspiracy-wide approach). “While [the defendant] did not further admit that he reasonably foresaw that the conspiracy would involve that drug quantity, he did not need to. In Robinson . . . [we] ‘interpreted 21 U.S.C. § 841(b)(1)(A) to focus on the threshold quantity involved in the entire conspiracy.’” Id. at *2 (quoting United States v. Robinson, 547 F.3d 632, 638 (6th Cir. 2008)). 84 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV defendant] could reasonably foresee the drug quantity.”66 The Sixth Circuit relied on its precedent, and declined to join the other circuits in acknowledging the more preferable individualized approach, articulating likely the strongest argument one could make against Alleyne requirement of the conspiracy-wide approach in Gibson.67 The court stated:

“Alleyne did not rewrite § 841(b) to add a new mens rea requirement.” . . . [The defendant] also asserts that United States v. Swiney, 203 F.3d 397 (6th Cir. 2000), holds that there is a mens rea requirement on the drug-quantity element, and argues that that case must be followed as the prior published opinion. This court has already rejected that argument too. “[Swiney]- which stated ‘that Pinkerton principles . . . determine whether a defendant convicted under 21 U.S.C. § 846 is subject to the penalty [for the addict’s death as] set forth in 21 U.S.C. § 841(b)(1)(C)’ concerns sentencing under the Guidelines,” and sets out a “different standard” from “the standard applicable to the drug quantity finding.”68

This reasoning is anything but clear, but it is the only justification to stand against Alleyne requiring the individualized approach: that it goes against case precedent and is not explicitly mandated by the Supreme Court.69 At the end of Gibson, even Circuit Judge John M. Rogers acknowledged the lack of support for the opinion and use of the conspiracy- wide approach.70

The result in this case may appear unjust. Mandatory minimums for limited-amount co-conspirators do not serve the drug statute’s underlying purpose of more severely punishing larger amount drug dealers. Nonetheless, absent

66 See Gibson, 2016 U.S. App. LEXIS 21141, at *3 (excerpting circuit’s position on reasonable foreseeability). 67 See id. (dismissing defendant’s argument that Alleyne requires use of individualized approach). “[The defendant] contends on appeal, though, that he was involved in only three meth sales, and that Alleyne . . . turned the drug quantity into an element of a drug conspiracy that must be found by the jury. This court has already rejected this argument . . . .” Id. 68 See id. (quoting United States v. Dado, 759 F.3d 550, 570 (6th Cir. 2014), and United States v. Watson, 620 F. App’x 493, 509 (6th Cir. 2015)) (reasoning Alleyne does not forbid conspiracy- wide approach). 69 See id. at *4 (commenting on harsh result of case). 70 See id. (explaining Judge Roger’s reasoning for what appears to be unfair outcome). 2020] ONE SHOULD NOT PAY FOR ALL 85

a change in our law from the en banc court, the Supreme Court, or Congress, we are bound by our precedents.71

Following the appeal of this case to the en banc court, there was an even split among the circuit judges, and the conspiracy-wide approach was reinstated.72 In the Third Circuit, the conspiracy-wide approach, while not being explicitly overruled by the court, was impliedly rejected.73 In Miller, in order to find the defendant guilty of conspiracy, the jury was instructed by the district court that they must “unanimously find beyond a reasonable doubt that the weight or quantity of cocaine . . . involved in the conspiracy was five kilograms or more.”74 Both the government and the defendant submitted to the court that this conspiracy-wide determination at the point of sentencing was constitutional error in light of the Court’s holding in Alleyne.75 The Third Circuit specified that it “agree[d]” with both of the parties regarding the Alleyne error, but in reviewing for harmlessness the court concluded that the defendant was charged with a drug quantity easily attributable to the his responsibility in the conspiracy, determining that it was a pure sentencing error that was harmless to the integrity of the conviction.76 Additionally, the Seventh Circuit, a formerly avid supporter of the conspiracy-wide theory, has contradicted its conspiracy-wide position,

71 See Gibson, 2016 U.S. App. LEXIS 21141, at *4 (exposing appeals judges’ limited ability to change law absent binding precedent). Judge Rogers’s opinion in Gibson demonstrates the lack of enthusiasm for the use of the conspiracy-wide approach and the urgency for the Supreme Court to comment on the constitutionality of the conspiracy-wide approach in light of Alleyne. Id. 72 See Gibson, 874 F.3d at 544 (announcing court was unable to come to decision on which approach to adopt). 73 See United States v. Miller, 645 Fed. App’x 211, 217 (3d Cir. 2016) (portraying importance of Supreme Court’s holding in Alleyne). 74 See id. (instructing jury to utilize conspiracy-wide approach). “In finding [the defendant] guilty of conspiracy, the jury unanimously determined that the conspiracy involved five or more kilograms of cocaine . . . . But, as [the defendant] submits, and the Government concedes, the jury did not determine an exact amount of cocaine and cocaine base directly attributable to [the defendant] himself.” Id. at 217–18. 75 See id. at 218 (demonstrating consensus among parties to case). “This lack of an individualized determination, the parties maintain, was error in light of Alleyne.” Id. 76 See id. at 218–20 (qualifying court’s decision to proscribe harmless error analysis).

[W]hile the Supreme Court had not discussed such a review in Alleyne, the Court has “. . . adopted the general rule that a constitutional error does not automatically require a reversal of a conviction,” and that the Supreme Court has “applied harmless error analysis to a wide range of errors and has recognized that most constitutional errors can be harmless.”

Id. at 218 (quoting Arizona v. Fulminante, 499 U.S. 279, 306 (1991)). 86 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV though on grounds other than Alleyne.77 The defendants in Cruse raised a claim on appeal of instructional error in their sentencing process, due to the special verdict form instructing the jury based on the conspiracy-wide approach.78 In finding error here, the court relied on the Pinkerton principle that “coconspirator liability only extends to those criminal acts that (1) were reasonably foreseeable to the defendants; and (2) occurred during the time that they were members of the conspiracy.”79 Although not relying on Alleyne in finding a constitutional violation in this case, the court abandoned the conspiracy-wide approach nonetheless, implicitly, if not explicitly.80 In August 2017, the Tenth Circuit, a conspiracy-wide circuit before the Supreme Court’s decision in Alleyne, reevaluated their policy regarding sentencing requirements for mandatory minimum triggering drug conspiracy cases.81 In Ellis, the Tenth Circuit expressly adopted and demanded that the government prove to a jury beyond a reasonable doubt the quantity of drugs personally attributable to the defendant.82 The court recognized that in order for the defendant to have preserved an “Alleyne objection,” he would have to object at the sentencing phase of the trial.83 The court determined that the

77 See United States v. Cruse, 805 F.3d 795, 817 (7th Cir. 2015) (pointing to Pinkerton principle). 78 See id. (addressing defendants’ points of appeal). The jury was instructed that the defendants were responsible for “the amount of cocaine involved in the agreement, and all amounts involved in all acts of the coconspirators committed in furtherance of the conspiracy.” Id. 79 See id. (citing Pinkerton v. United States, 328 U.S. 640, 647–48 (1946)). 80 See id. (noting jury should have been instructed on such constitutional principles). “Everyone agrees that the jury should have been instructed on the Pinkerton doctrine.” Id. (emphasis added). 81 See United States v. Ellis, 868 F.3d 1155, 1174–75 (10th Cir. 2017) (clarifying confusion surrounding which approach to use).

[T]o succeed on his Alleyne argument, [the defendant] must still show that individually attributable cocaine amounts are an element of the cocaine-conspiracy charge. On this point, the government asserts that “this Court has not issued a published decision [after Alleyne] expressly stating what determination the jury must make when a defendant is charged with an offense that carries a statutory mandatory-minimum penalty” . . . the district court committed Alleyne error by convicting and sentencing [the defendant] on 21 U.S.C. § 841(b)(1)(A) without the jury’s having found his individually attributable amount of cocaine as at least [the amount triggering the mandatory minimum].

Id. 82 See id. (dismissing government’s position that court had not demanded individualized approach before). “In [Dewberry], decided two years after Alleyne, we said that, because 280 grams of crack cocaine would increase the statutory mandatory-minimum sentence, that drug amount ‘was an element of the offense and had to be proved at trial.’” Id. (quoting United States v. Dewberry, 790 F.3d 1022, 1029 (10th Cir. 2015)). 83 See id. at 1171 (determining standard to use to assess Alleyne error). 2020] ONE SHOULD NOT PAY FOR ALL 87 defendant himself did object to the sentence that was imposed on him, appearing pro se at the sentencing hearing:

I don’t understand why I’m here today. And for the jury to find me guilty, I didn’t understand because there was no amount . . . the jury transcripts, it was no amount to say if I was guilty of 280 grams. I mean, even the videos that I was in does not show me specifically with crack cocaine in possession selling to no one.84

Further, as previously mentioned, the First, Fourth, Fifth, Ninth, and D.C. Circuits have openly supported and urged courts to use the individualized approach since Alleyne was decided.85 Not only have these circuits expressly endorsed the use of the individualized approach after Alleyne, but they have employed this approach before Alleyne was even decided.86 For example, in Stoddard, the D.C. Circuit recognized that the law in that circuit implicitly required the individualized method since 2008.87 Similarly, in Banuelos, the Ninth Circuit commented that the court has been using the individualized approach since 1993.88 In Pizarro, the First Circuit recognized that it had been using the individualized approach for sentencing

84 See id. (excerpting defendant’s pro se objection). “And I was never shown to be convicted by the jury by a certain drug amount because 280 grams, there’s never no evidence, to my knowledge, that’s being brought up.” Id. (citations omitted). 85 See United States v. Stoddard, 892 F.3d 1203, 1221 (D.C. Cir. 2018) (adopting individualized approach to drug-quantity determinations triggering individual defendant’s mandatory-minimum sentence); United States v. Haines, 803 F.3d 713, 739 (5th Cir. 2015) (holding that defendants’ should have been sentenced based on individualized method); United States v. Rangel, 781 F.3d 736, 744 (4th Cir. 2015) (applying individualized principle that defendant must be personally responsible for drug quantity); United States v. Pizarro, 772 F.3d 284, 293–94 (1st Cir. 2014) (conforming to individualized sentencing method); United States v. Banuelos, 322 F.3d 700, 704 (9th Cir. 2003) (reversing and remanding case where district court sentenced defendant based on conspiracy-wide quantity). 86 See Stoddard, 892 F.3d at 1222 (exposing D.C. Circuit preference for individualized method); Haines, 803 F.3d at 741 (affirming individualized approach has been longstanding rule); Rangel, 781 F.3d at 742 (noting Collins requirement of individualized sentencing); Pizarro, 772 F.3d at 292 (articulating use of individualized approach before Alleyne); Banuelos, 322 F.3d at 704 (citing numerous cases before Alleyne requiring individualized approach). 87 See Stoddard, 892 F.3d at 1221 (recognizing holding in United States v. Law, 528 F.3d 888 (D.C. Cir. 2008). “[W]e held [in Law] that ‘a defendant convicted of conspiracy to deal drugs, in violation of § 846, must be sentenced, under § 841(b), for the quantity of drugs the jury attributes to him as a reasonably foreseeable part of the conspiracy.’” Id. (citing Law, 528 F.3d at 906). 88 See Banuelos, 322 F.3d at 704 (reaffirming longstanding use of individualized approach). “[The] court may not impose statutory mandatory minimum without finding that ‘a particular defendant had some connection with the larger amount on which the sentencing is based or that he could reasonably foresee that such an amount would be involved in the transactions of which he was guilty.’” Id. (quoting United States v. Becerra, 992 F.2d 960, 966–67 & n.2 (9th Cir. 1993)). 88 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV before Alleyne was decided, in 2004.89 In Rangel, the Fourth Circuit pointed to precedent from 2005 requiring that the government prove individualized quantities of drugs attributable to defendants involved in conspiracy cases.90 Likewise, in Haines, the Fifth Circuit recognized that it found error in the past, dating back to 2002, where district courts based a statutory minimum in reliance on conspiracy-wide quantities of drugs.91 The longstanding use of the individualized method by a number of the circuits tends to support the argument that the use of the conspiracy-wide method is unconstitutional, particularly in light of the Supreme Court’s ruling in Alleyne.92

D. Public Opinion Regarding Drug Policy Tends to Favor Use of Individualized Approach

In general, citizens of the United States are already acrimonious and resentful of mandatory-minimum sentencing for drug offenders responsible for a bush-league quantity of drugs.93 An organization entitled Families

89 See Pizarro, 772 F.3d at 292 (citing precedent utilizing individualized approach). “We have already answered that question in United States v. Colón-Solís, 354 F.3d 101 (1st Cir. 2004), where we held that a mandatory minimum . . . ‘cannot be applied in [a particular coconspirator’s] case without an individualized finding that the triggering amount was attributable to, or foreseeable by, him.’” Id. (quoting Colón-Solís, 354 F.3d at 103). 90 See Rangel, 781 F.3d at 742 (recalling case precedent requiring individualized approach).

In [Collins], we considered on direct appeal the district court’s failure to give an instruction ‘that, for purposes of setting a specific threshold drug quantity under § 841(b), the jury must determine what amount of cocaine base was attributable to [a drug conspiracy defendant]’ . . . the failure to give such instruction was error . . . .

Id. (quoting Collins, 415 F.3d at 314). 91 See Haines, 803 F.3d at 741 (offering case precedent supporting individualized method).

In Gurrusquieta, we noted that a defendant’s conviction for conspiring to distribute in excess of 1,000 kilograms of marijuana did not automatically trigger the 10-year mandatory minimum because “a defendant is only accountable for all quantities of the marijuana with which he was directly involved, and all reasonably foreseeable quantities of marijuana that were within the scope of the criminal activity that he jointly undertook . . . In other words, an individual convicted of conspiring to distribute at least 1,000 kilograms of marijuana . . . is not necessarily subject to the ten-year minimum. Only if the defendant is responsible for at least 1,000 kilograms, as determined by the Sentencing Guidelines, does the mandatory statutory minimum apply.”

Id. (citing United States v. Gurrusquieta, No. 01-11034, 2002 WL 31730264, at *3 (5th Cir. Nov. 21, 2002)). 92 See United States v. Stoddard, 892 F.3d 1203, 1222 (D.C. Cir. 2018) (noting general acceptance amongst federal courts of individualized approach). 93 See Bjerk, supra note 6, at 93 (outlining American hostility of 21 U.S.C. § 841 provision of mandatory minimums). 2020] ONE SHOULD NOT PAY FOR ALL 89

Against Mandatory Minimums (FAMM) echoes the position of a large number of the American population in demonstrating why mandatory minimums are so strongly disliked, detailing the stories of its members.94 When Sessions made the call to sentence defendants charged with drug offenses with “the most serious, readily provable offense,” the country responded in outcry.95 Eric Holder commented on Sessions decision as an “absurd reversal . . . driven by voices who have not only been discredited but until now have been relegated to the fringes of this debate.”96 Reasons behind the severe public dislike of mandatory minimum sentencing for drug crimes have included uncontrollably large prison populations, disproportionate effect on minorities, and high costs to taxpayers.97 “States that have relied on treatment and rehabilitation programs over imprisonment for low-level drug crimes have seen success . . . Texas . . . saved $2 billion by shutting down prisons no longer needed.”98

On its website, Families Against Mandatory Minimums [FAMM] includes a number of facts, highlighting the boom in prison populations, prison costs, and the high number of drug offenders serving long prison terms, with the implication being that the mandatory minimums for drug offenders are a primary contributor to these facts and trends . . . being convicted of trafficking a drug quantity just in excess of a mandatory-minimum- eligibility threshold is associated with a significant increase in expected sentence length for powder cocaine, methamphetamine, marijuana, and heroin offenders . . . .

Id. at 94–95 (noting this is not case for crack cocaine offenders). 94 See Cynthia Powell: 25 Years for 35 Pills, supra note 7 (“FAMM’s greatest asset has always been the stories of its members. By sharing the impact of unjust sentencing and prison policies on incarcerated individuals, their families, and their communities, FAMM has helped create urgency around the issue . . . .”). 95 See Editorial, supra note 3 (demonstrating public loathing of mandatory minimum sentences for nonviolent drug offenders). 96 See Ford, supra note 3 (noting Holder’s distaste and lack of support for strict mandatory minimums). 97 See Editorial, supra note 3 (demonstrating why Americans dislike mandatory minimum sentences). “Mandatory minimum sentences that prevailed through the 1980s and 1990s filled federal prisons with low-level offenders, at great expense to taxpayers and to the country’s black and Hispanic communities. Cities, meanwhile, did not get safer.” Id.; see also Ford, supra note 3 (“The policy announced today is not tough on crime . . . . It is dumb on crime. It is an ideologically motivated, cookie-cutter approach that has only been proven to generate unfairly long sentences that are often applied indiscriminately and do little to achieve long-term public safety.”); Hansler, supra note 3 (commenting on long prison sentences as result of mandatory minimums).

The [US Sentencing Commission] found that those convicted in the 2016 fiscal year of crimes carrying mandatory minimum penalties received an average of 110 months— approximately nine years—in prison. That was four times the average sentence—a bit over two years—for those convicted of a crime without the mandatory minimum.

Hansler, supra note 3. 98 See Editorial, supra note 3 (presenting example benefit of cutting back number of defendants sentenced to mandatory minimum offenses). “The cost of the federal prison system has reached $7 90 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

If all the circuits were to adopt the individualized approach, the harsh effect of mandatory minimum sentencing would be slightly muted.99 Although this approach does not get rid of mandatory minimum sentences altogether, it ensures that every defendant will be sentenced in direct accordance with his individual level of blameworthiness.100 This would naturally cut down on the prison population and save taxpayer money.101 While not a perfect solution, compliance with the constitutional requirement of Alleyne would necessarily limit the mandate on federal prosecutors across the country in preventing defendants from being sentenced to a disproportionately lengthy mandatory minimum as a result of the unforeseeable actions of other members of the conspiracy that he or she was involved in.102

V. CONCLUSION

When a defendant is charged with a conspiracy drug crime, he or she is exposed to a lengthy mandatory minimum sentence that will be inescapable if found guilty. As a result of the high risk of extensive prison time, the government should be required to prove beyond a reasonable doubt

billion, while housing a population that is nearly half drug offenders. But instead of beefing up drug use treatment programs, the Trump administration has proposed cutting funding for them.” Id. 99 See United States v. Stoddard, 892 F.3d 1203, 1222 (D.C. Cir. 2018) (vacating defendants’ convictions while noting severe mandatory minimum as result of conspiracy-wide method).

The District Court’s error was not harmless here because the evidence was far from overwhelming with respect to the quantity of heroin involved in the conspiracy that was reasonably foreseeable to [the defendants]. Had the jury been properly instructed and given a proper verdict form, the outcome may well have been different.

Id. 100 See id. (emphasizing importance on sentence reflecting individual liability). “[We] remand to the District Court with instructions to re-sentence each Appellant based on the crime for which the jury found each one of them individually liable . . . .” Id. 101 See United States v. Haines, 803 F.3d 713, 740 (5th Cir. 2015) (detailing individualized process that would limit sentence length). “Under the Sentencing Guidelines, a defendant who participates in a drug conspiracy is accountable for the quantity of drugs, which is attributable to the conspiracy and reasonably foreseeable to him. Reasonable foreseeability does not follow automatically from proof that the defendant was a member of the conspiracy.” Id. (citing United States v. Quiroz-Hernandez, 48 F.3d 858, 870 (5th Cir. 1995)) (quotation marks omitted); see Editorial, supra note 3 (“Harsh and inflexible sentencing policies have proved counterproductive in the fight against illegal drugs. The focus should be on prosecuting the traffickers who rely on violence to grow and protect their predatory enterprise.”). 102 See United States v. Ellis, 868 F.3d 1155, 1170 (10th Cir. 2017) (limiting government to individualized approach). “[T]he government asserts that this ‘Court has not issued a published decision . . . expressly stating what determination the jury must make when a defendant is charged with an offense that carries a statutory mandatory-minimum penalty’ . . . . But the government is mistaken.” Id. (citation omitted). 2020] ONE SHOULD NOT PAY FOR ALL 91 that the defendant is culpable for the conspiracy that he is charged with participating in. According to the First, Fourth, Fifth, Seventh, Ninth, Tenth, and D.C. Circuits, following the Supreme Court’s ruling in Alleyne, proof beyond a reasonable doubt of every element of the offense charged requires prosecutors to demonstrate that drug quantity involved in the conspiracy was reasonably foreseeable to the defendant. The fact that the Sixth and Third Circuits struggle to defend the conspiracy-wide approach demonstrates that the Sixth Amendment to the United States Constitution requires proof of this “reasonable foreseeability” element to the jury when imposing a mandatory minimum sentence on a defendant charged with a conspiracy drug offense. If conspiracy-wide circuits’ palpable conflict is not enough to require this element of proof, public hostility towards mandatory minimum sentencing and the sheer effect that it has on defendants across the country should mandate the uniform adoption of the individualized approach.

Hunter R. Wildrick “NOT TESTED ON ANIMALS”: THE FUTURE OF COSMETIC ANIMAL TESTING IN THE U.S. AND BEYOND

I. INTRODUCTION

In the United States’ cosmetic industry, it is common practice to assess the safety of cosmetic products and their ingredients by testing them on animals prior to their distribution to be sold for human use.1 The term “cosmetics” includes any items intended to be applied to the body for the purpose of “cleansing, beautifying . . . or altering [one’s] appearance . . . .”2 The most frequently used animals in the cosmetic industry include rabbits, guinea pigs, mice, and rats.3 The most common tests conducted on animals include the application of chemicals onto the shaved skin or into the eyes of restrained animals without pain relief, the repeated force-feeding of the animals to identify signs of potential health hazards such as cancer, and “lethal dose” tests where animals are force fed “large amounts of . . . test chemical[s] to determine the dose that causes death.”4 After completion of these tests, animals are killed without pain relief, “normally by asphyxiation, neck-breaking, or decapitation.”5

1 See Humane Cosmetics Act, H.R. 2790, 115th Cong. (2017) (defining cosmetic animal testing). “The term ‘cosmetic animal testing’ means the internal or external application or exposure of any cosmetic to the skin, eyes, or other body part of a live non-human vertebrate for purposes of evaluating the safety or efficacy of a cosmetic.” Id. 2 Federal Food, Drug, and Cosmetic Act § 321, 21 U.S.C. § 9 (2018) (defining cosmetics as per Federal Food, Drug, and Cosmetic Act).

The term ‘cosmetic’ means (1) articles intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, and (2) articles intended for use as a component of any such articles; except that such term shall not include soap.

Id.; see Cosmetics Testing FAQ, HUMANE SOC’Y OF THE U.S., http://www.humanesociety.org/ issues/cosmetic_testing/qa/questions_answers.html (last visited Sept. 24, 2019) [https://perma.cc/ 5AVA-NC3G] (identifying “cream, perfume, lipstick, nail polish, eye and facial makeup, shampoo, and hair color” as cosmetics). 3 See Cosmetics Testing FAQ, supra note 2 (identifying animals commonly used for testing in cosmetic industry). 4 See id. (describing painful tests to which animals are subjected). 5 See id. (indicating animals in cosmetic testing are killed after use). 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 93

Federally, the U.S. remains mostly silent with respect to animal testing regulations in the cosmetic industry.6 The U.S. Food & Drug Administration’s (“FDA”) Federal Food, Drug, and Cosmetic Act (“FD&C Act”) is the primary legislation in place for regulating consumer protection guidelines for food, drugs, and cosmetics.7 While the FD&C Act does not explicitly require the use of animal tests to determine a product’s safety, it also fails to provide any regulations regarding cosmetic animal testing at all.8 Rather, the FD&C Act opens the door for cosmetic manufacturers to assess the safety of their products through any method those companies deem reasonable, including testing their products and ingredients on animals.9 While U.S. federal law provides inadequate cosmetic animal testing regulations, “[t]he fight to ban animal testing recently scored a major victory” as California became the first state to ban the sale of any cosmetic product tested on an animal.10 Beginning in January 2020, California’s new

6 See Courtney G. Lee, The Animal Welfare Act at Fifty: Problems and Possibilities in Animal Testing Regulation, 95 NEB. L. REV. 194, 228 (2016) (indicating countries ahead of United States with respect to cosmetic animal testing policies); see also Cosmetics Testing FAQ, supra note 2 (explaining that policies and consumer pressure will help end cosmetic animal testing). 7 See Federal Food, Drug, and Cosmetic Act §§ 301–399, 21 U.S.C. § 9 (2018) (citing full text of FD&C Act); see also How Did the Federal Food, Drug, and Cosmetic Act Come About?, U.S. FOOD &DRUG ADMIN., https://www.fda.gov/aboutfda/transparency/basics/ucm214416.htm (last updated Mar. 28, 2018) [https://perma.cc/PUU7-P3X8] (“The enactment of the 1938 Food, Drug, and Cosmetic Act tightened controls over drugs and food, included new consumer protection against unlawful cosmetics and medical devices, and enhanced the government’s ability to enforce the law.”). 8 See Federal Food, Drug, and Cosmetic Act §§ 361–364 (describing limited cosmetic regulations under FD&C Act); see also Animal Testing and Cosmetics, U.S. FOOD &DRUG ADMIN., https://www.fda.gov/cosmetics/scienceresearch/producttesting/ucm072268.htm (last updated Nov. 22, 2017) [https://perma.cc/NKX4-HGWW] (explaining FDA’s lack of animal testing regulations in cosmetic industry). 9 See Animal Testing and Cosmetics, supra note 8 (addressing FDA’s stance on cosmetic animal testing).

The FD&C Act does not specifically require the use of animals in testing cosmetics for safety, nor does the Act subject cosmetics to FDA premarket approval. However, the agency has consistently advised cosmetic manufacturers to employ whatever testing is appropriate and effective for substantiating the safety of their products . . . . Animal testing by manufacturers seeking to market new products may be used to establish product safety.

Id. 10 See CAL.CIV.CODE § 1834.9.5 (Deering 2018) (banning sale of cosmetic products tested on animals); Macaela Mackenzie, California Passes Cruelty-Free Cosmetics Act to Ban the Sale of Animal-Tested Beauty Products, ALLURE (Sept. 5, 2018, 3:00 PM), https://www.allure.com /story/california-cruelty-free-cosmetics-act-bill?verso=true [https://perma.cc/C55N-NN95] (summarizing history and anticipated impact of California’s bill). “Now, it’s official: The future of beauty looks cruelty-free.” Mackenzie, supra note 10; Hayley Schueneman, California Is 94 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV bill will essentially prohibit the marketing of any cosmetic product that was tested on an animal.11 This Note seeks to provide insight into the future of cosmetic animal testing based on implemented regulations and recently introduced policies in the United States and beyond.12

II. HISTORY

Historically, animals have been denied rights based on the belief that their inability to communicate suggests that they lack reason and consciousness.13 Animals were believed to be inanimate objects and therefore unable to suffer.14 In the United States, that belief lead to the “widespread acceptance” of animal testing “in the 1930s after . . . unsafe [cosmetic] products resulted in . . . great harm [to humans].”15 Federal regulations were adopted to require “companies to prove their products’ safety . . . before offering them for sale to the public.”16 Currently, cosmetic manufacturers and production companies in the United States are permitted

Banning Animal Testing in Beauty, CUT (Sept. 5, 2018), https://www.thecut.com/2018/09/ california-passes-bill-that-bans-all-animal-testing-by-2020.html [https://perma.cc/K8RK-X8JE] (discussing potential impact of California’s new bill). 11 See CAL.CIV.CODE § 1834.9.5 (citing California’s new regulation for animal testing within cosmetic industry).

Notwithstanding any other law, it is unlawful for a manufacturer to import for profit, sell, or offer for sale in this state, any cosmetic, if the cosmetic was developed or manufactured using an animal test that was conducted or contracted by the manufacturer, or any supplier of the manufacturer, on or after January 1, 2020.

Id. 12 See Danielle Magnifico, The Effects of Domestic Regulation on International Trade Law as an Avenue for Change Beyond Borders, 16 ASPER REV.INT’L BUS.&TRADE L. 201, 203 (2016) (discussing European Union’s full ban on producing, marketing, and importing cosmetics tested on animals); see also Animal Advocates Praise EPA for Efforts to Reduce Painful Skin Tests on Animals, HUMANE SOCIETY OF THE U.S. (Apr. 11, 2018), https://www.humanesociety.org/news /animal-advocates-praise-epa-efforts-reduce-painful-skin-tests-animals [https://perma.cc/HJ34- 7L87] (introducing federal policy encouraging use of non-animal testing methods). 13 See Laura Donnellan, Animal Testing in Cosmetics: Recent Developments in the European Union and the United States, 13 ANIMAL L. 251, 252–53 (2007) (describing historical misunderstanding of animals’ instinctual nature and behavior). 14 See id. at 253 (explaining historical view of animals as property rather than sentient beings with rights). 15 See Lee, supra note 6, at 217 (referencing unsafe cosmetic products which caused “great harm and loss of life.”); see also Donnellan, supra note 13, at 252–53 (highlighting human misconception of animals as inanimate objects incapable of suffering). 16 See Lee, supra note 6, at 217 (explaining FD&C Act as response to injury and death from unsafe cosmetic and drug products). 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 95 to decide which method will be used to prove their products’ safety, and countless companies continue to choose animal testing.17 Despite the widespread historical misunderstanding regarding their consciousness, recent global developments have suggested that animals are “sentient beings” by developing and implementing legislative regulations to protect their rights.18 The European Union (“EU”) has aimed to prioritize animal welfare based on up to date scientific evidence of animal sentience.19 For example, by 2009, the EU had already banned the use of animal testing for cosmetic purposes with regard to both complete cosmetic products and ingredients used in cosmetic products.20 As of 2013, the EU has made it illegal to market any cosmetic product that has been tested on an animal.21 A number of nations have followed the EU’s trajectory by developing similar laws banning or limiting cosmetic animal testing.22 In 2015, New Zealand amended its Animal Welfare Act to recognize the sentience of animals and to ban testing cosmetic products and ingredients on animals.23 While cosmetic products were rarely, if ever, tested on animals

17 See Animal Testing and Cosmetics, supra note 8 (indicating federal law permits cosmetic companies to perform animal tests). 18 See Donnellan, supra note 13, at 253 (discussing recent developments compared to historical beliefs). “Animals were viewed as inanimate objects, pieces of personal property that could not be ascribed rights . . . . Notwithstanding the philosophical debate, recent developments in both the European Union (EU) and the United States (U.S.) suggest that animals are sentient beings and deserve the paternalistic protection of the law.” Id. 19 See id. at 254 (describing animal welfare as “issue of very high importance”); see also Main Achievements: No Animal Testing for Cosmetic Purposes, EUROPEAN COMM’N, https://ec.europa.eu/food/animals/welfare/main_achievements_en (last visited Nov. 12, 2018) [https://perma.cc/AWL3-P7EQ] (identifying newly implemented EU legislation aimed to improve quality of animals’ lives). 20 See Main Achievements: No Animal Testing for Cosmetic Purposes, supra note 19 (summarizing imperative moments in EU for cosmetic animal testing legislation). In 2004, the EU banned cosmetic companies from testing finished cosmetic products on animals. Id. Subsequently, in 2009, the EU banned testing cosmetic ingredients on animals. Id. 21 See id. (explaining EU cosmetic marketing ban effective in 2013). 22 See Cosmetics Testing FAQ, supra note 2 (identifying countries that have inspired global trend toward reducing animal tests in cosmetic industry). Countries that ban or limit cosmetic animal testing include the EU, India, Israel, Norway, Switzerland, New Zealand, South Korea, Taiwan, Turkey, and multiple states in Brazil. Id. “Cosmetic companies in the United States and abroad that conduct animal tests will not be able to sell those products in any of these countries unless they change their practices.” Id. 23 See Animal Welfare Amendment Act (No 2) 2015, N.Z. LEGIS., available at http://www. legislation.govt.nz/act/public/2015/0049/latest/DLM6432504.html (last visited Sept. 24, 2019) [https://perma.cc/L2XJ-ASQL] (amending New Zealand’s 1999 Animal Welfare Act through addition of Section 84A).

84A Prohibition on use of animals in research, testing, and teaching for making cosmetic 96 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV in New Zealand, the amendment is meant to portray a global message that New Zealanders condemn cosmetic animal testing.24 Unfortunately, the U.S. remains far behind numerous nations with respect to cosmetic animal testing legislation.25

III. FACTS

Despite United States’ slight attempt to develop regulations prioritizing animal welfare, the fact remains that no federal legislation protects the animals who continue to be subjected to the excruciating tests conducted in the cosmetic industry.26 In fact, two of the most common

(1) A person must not use an animal in any research, testing, or teaching that is for the purpose of—

(a) developing, making, or testing a cosmetic; or (b) developing, making, or testing an ingredient that is intended exclusively for use in a cosmetic.

(2) Subsection (1)(b) does not apply to research, testing, or teaching in relation to an ingredient that is carried out for a purpose unrelated to the intended use of the ingredient in a cosmetic. (3) A person commits an offence who contravenes subsection (1). (4) In a prosecution for an offence against this section, it is not necessary for the prosecution to prove that the defendant intended to commit the offence.

Id.; see also Kelly Buchanan, New Zealand: Animal Welfare Legislation Recognizes Animals as Sentient, Bans Cosmetic Testing, LIBR. OF CONGRESS (May 19, 2015), http://www.loc.gov/law/ foreign-news/article/new-zealand-animal-welfare-legislation-recognizes-animals-as-sentient- bans-cosmetic-testing/ [https://perma.cc/949K-LXAE] (listing amendments to New Zealand’s 1999 Animal Welfare Act). 24 See Buchanan, supra note 23 (describing New Zealand’s stance on animal testing); see also Law Change to Ban Cosmetic Testing on Animals, N.Z. GOV’T (Apr. 1, 2015), https://www. beehive.govt.nz/release/law-change-ban-cosmetic-testing-animals [https://perma.cc/5YZ3-HZ7L] (“To the best of our knowledge there never has been any animal testing for cosmetics in New Zealand, but this amendment will send an important message that this kind of testing is unacceptable to New Zealanders and will never happen here.”). 25 See sources cited supra note 6 (identifying lack of cosmetic animal testing regulation in United States). 26 See Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2018) (describing regulations on animal testing for research purposes); see also Animal Welfare Act, U.S. DEP’T OF AGRIC.NAT’L AGRIC. LIBR., https://www.nal.usda.gov/awic/animal-welfare-act (last visited Nov. 15, 2019) [https:// perma.cc/W8YX-9AVH] (describing federal regulations in place related to animals used for research). The Animal Welfare Act is “the only Federal law in the United States that regulates the treatment of animals in research . . . .” Animal Welfare Act, supra note 26. The Animal Welfare Act does not specifically provide any regulations related to animal testing in the cosmetic industry. Id. 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 97 animal species used for cosmetic testing are excluded from the United States’ legal definition of an animal.27 The United States has recently considered two policies, which, if implemented, would assist in regulating certain tests that are currently conducted on animals.28 The first is entitled Use of Alternative Approaches for Skin Sensitization as a Replacement for Laboratory Animal Testing (“Use of Alternative Approaches”) and was drafted by the Environmental Protection Agency (“EPA”) to encourage non-animal testing methods for pesticides and industrial chemicals.29 Although it is not specifically aimed toward the cosmetic industry, the Use of Alternative Approaches supports the use of non-animal testing methods in place of painful skin irritancy tests which are often used by cosmetic companies.30 If enacted, the Use of Alternative Approaches may guide cosmetic companies toward replacing animal testing methods with the alternative techniques set forth in the policy.31 In addition to the EPA’s Use of Alternative Approaches policy, another policy, commonly referred to as the Humane Cosmetics Act, was introduced in Congress in 2017.32 The intent behind the Humane Cosmetics Act was to eliminate animal testing in the cosmetics industry by prohibiting the production and marketing of cosmetic products that were tested on animals and imposing a high civil penalty of up to $10,000 to companies for

27 See 7 U.S.C. § 2132(g) (outlining legal definition of “animal”). The term ‘animal’ means any live or dead dog, cat, monkey (nonhuman primate mammal), guinea pig, hamster, rabbit, or such other warm-blooded animal, as the Secretary may determine is being used, or is intended for use, for research, testing, experimentation, or exhibition purposes, or as a pet; but such term excludes . . . rats . . . and mice . . . bred for use in research . . . . Id. (emphasis added). 28 See Humane Cosmetics Act, H.R. 2790, 115th Cong. (2017) (seeking to prohibit manufacture, sale, and transport of cosmetic products tested on animals); Animal Advocates Praise EPA for Efforts to Reduce Painful Skin Tests on Animals, supra note 12 (describing Humane Society’s support of EPA’s proposed alternatives to traditional animal testing). 29 See Animal Advocates Praise EPA for Efforts to Reduce Painful Skin Tests on Animals, supra note 12 (explaining EPA’s drafted policy for use of alternative tests). 30 See id. (indicating EPA’s goal to reduce animal testing generally). “In the EPA’s official statement on the draft policy, EPA Administrator Scott Pruitt stated, ‘this draft policy is another step toward achieving EPA’s goal of reducing the use of animals and increasing the use of cutting- edge science in chemical testing.’” Id. 31 See Cosmetics Testing FAQ, supra note 2 (describing three most commonly performed animal tests in cosmetic industry). 32 See H.R. 2790 (seeking to “phase out” production and sale of cosmetic products tested on animals). 98 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV each violation.33 Unfortunately, the Humane Cosmetics Act never received legitimate consideration in the House.34 While neither the Humane Cosmetics Act nor the Use of Alternative Approaches were passed, the State of California has played an enormous role in setting the stage for states to develop their own cosmetic animal testing guidelines.35 For decades, California has remained loyal to animal welfare and ahead of federal law when it comes to developing stricter regulations surrounding the use of animal testing.36 After multiple failed attempts,

33 See id. §§ 3–4 (outlining federal legislation introduced to promote discontinuing cosmetic animal testing).

SEC. 3. PROHIBITIONS (a) TESTING.–It shall be unlawful for any entity, whether private or governmental, to conduct or contract for cosmetic animal testing that occurs in the United States and is for the purpose of developing a cosmetic for sale in or affecting interstate or foreign commerce. (b) SALE OR TRANSPORT. –It shall be unlawful to sell, offer for sale, or knowingly transport in interstate commerce any cosmetic if the final product or any component thereof was developed or manufactured using cosmetic animal testing conducted or contracted for after the effective date specified in section 5(a).

SEC. 4. CIVIL PENALTIES (a) IN GENERAL.–In addition to any other penalties applicable under law, the Secretary of Health and Human Services shall assess whoever violates any provision of this Act a civil penalty of not more than $10,000 for each such violation. Id. 34 See id. (reporting Humane Cosmetics Act failed to advance almost immediately after introduced). 35 See CAL.CIV.CODE § 1834.9.5 (Deering 2018) (providing language for California’s newest animal welfare law); see also H.R. 2790 (indicating failed federal law introduced to ban sale of cosmetics tested on animals); Animal Advocates Praise EPA for Efforts to Reduce Painful Skin Tests on Animals, supra note 12 (discussing EPA’s attempt to promote alternative tests other than painful animal skin tests). 36 See Donnellan, supra note 13, at 270–74 (discussing California’s attempts to ban use of “barbaric” irritancy tests on animals).

[The Draize Test is] a technique whereby a beauty or household product is applied to a rabbit’s eye, skin, or penis over a twenty-four, forty-eight, or seventy-two hour period. In some cases, the observations last from seven to twenty-one days. Rabbits are placed in a holding device which only exposes their heads so that they cannot claw out their eyes or escape . . . . In most cases, the rabbit is not anaesthetized during the process, and is killed after the test has ended.

Id. at 271. See Stephanie A. Sheridan & Michael A. Keough, California Bans Cosmetics Tested on Animals, STEPTOE (Oct. 3, 2018), https://www.steptoe.com/en/news-publications/california- bans-cosmetics-tested-on-animals.html [https://perma.cc/L6AS-TDNP] (indicating California’s 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 99

California ultimately enacted Senate Bill 2082 (“S.B. 2082”), which became “the first statute in the U.S. to curtail animal testing in the cosmetic industry.”37 S.B. 2082 prohibits the use of animal testing methods for cosmetics, pesticides, and additional household products, where “an appropriate alternative test method has been scientifically validated and recommended by the Inter-Agency Coordinating Committee for the Validation of Alternative Methods (ICCVAM) . . . and adopted by the relevant federal agency . . . or program . . . .”38 Animal testing for medical purposes is exempted under California’s bill.39 In addition to California’s legislature, many Californians have shown their support of cruelty-free cosmetic regulations through two class action fraud suits against cosmetic companies Avon and Mary Kay.40 In both cases, the plaintiffs argued that the companies advertised as “cruelty free” in the U.S., however they also marketed their products in China, where law

efforts to ban sale of animal fur). “San Francisco and West Hollywood have also banned the sale of animal fur products, and Los Angeles is considering a similar fur sale ban. California has also banned the importation of certain exotic animal skins, such as pythons, cheetahs, and whales.” Id. 37 See CAL.CIV.CODE § 1834.9 (prohibiting manufacturers from importing cosmetics that were tested on animals); see also Donnellan, supra note 13, at 272 (“S.B. 2082 was given force of law in 2000, when Chapter 476 was enacted, and it later became California Civil Code § 1834.9.”). 38 See CAL.CIV.CODE § 1834.9 (banning use of animal testing in cosmetic industry where alternative methods are available).

Manufacturers and contract testing facilities shall not use traditional animal test methods within this state for which an appropriate alternative test method has been scientifically validated and recommended by the Inter-Agency Coordinating Committee for the Validation of Alternative Methods (ICCVAM) and adopted by the relevant federal agency or agencies or program within an agency responsible for regulating the specific product or activity for which the test is being conducted . . . . [The ICCVAM is] a federal committee comprised of representatives from 14 federal regulatory or research agencies . . . that reviews the validity of alternative test methods. The committee is the federal mechanism for recommending appropriate, valid test methods to relevant federal agencies.

Id.; see Donnellan, supra note 13, at 276 (suggesting California’s loyalty to animal welfare). 39 See CAL.CIVIL CODE § 1834.9(e) (defining medical research). Under California law, medical research is defined as “research related to the causes, diagnosis, treatment, control, or prevention of physical or mental diseases and impairments of humans and animals or related to the development of biomedical products, devices, or drugs as defined in Section 321(g)(1) of Title 21 of the United States Code.” Id. 40 See Beltran v. Avon Prods., 867 F. Supp. 2d 1068, 1073 (C.D. Cal. 2012) (describing plaintiff’s representation of one million U.S. Avon cosmetics consumers, including those in California); Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212, 1216 (C.D. Cal. 2012) (discussing plaintiff’s basis for nation-wide class action fraudulent concealment claim). 100 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV requires imported cosmetics to be tested on animals.41 The plaintiffs argued that had they been aware that the cosmetic products were tested on animals in a foreign country, they would not have purchased the products.42 Although the plaintiffs’ claim in Beltran was dismissed before litigation, the Stanwood court held that Mary Kay had a duty to disclose that its products were tested on animals in a foreign nation because that information is a material fact, as the plaintiffs would not have purchased the products had it been disclosed.43 Moreover, California has recently proven their continued loyalty to animal welfare by adding Senate Bill 1249 (“Cruelty Free Cosmetics Act” or “the Act”) which is almost identical to the federally proposed Humane Cosmetics Act.44 Pre-existing state law prevented California cosmetic companies from using traditional animal testing methods.45 The Cruelty

41 See Beltran, 867 F. Supp. 2d at 1073 (stating cosmetic products were tested on animals after being sold in China); Stanwood, 941 F. Supp. 2d at 1216 (indicating Chinese law requires cosmetic products be tested on animals); see also Here’s How China Is Moving Away From Animal Testing, BLOOMBERG (Jan. 16, 2018, 5:00 PM), https://www.bloomberg.com/news/articles/2018-01- 16/ending-china-animal-tests-is-salve-for-big-beauty-quicktake-q-a [https://perma.cc/Y7RK- TXRV] (discussing China’s requirement of testing cosmetics on animals despite attempt to move toward alternatives). 42 See Beltran, 867 F. Supp. 2d at 1073 (explaining plaintiffs would not have purchased cosmetic products tested on animals); Stanwood, 941 F. Supp. 2d at 1216 (indicating if plaintiffs knew products were tested on animals, they would have acted differently). 43 See Beltran, 867 F. Supp. 2d. at 1084 (disqualifying plaintiff’s representation due to conflict of interest); Stanwood, 941 F. Supp. 2d at 1221 (indicating duty to disclose animal testing as material fact). The instant case presents an unfortunate and awkward set of circumstances in which two former colleagues and long-time friends who previously worked together in representing a major corporate client now find themselves on opposite sides in a case involving that same client . . . . Avon’s motion to disqualify is GRANTED. The law firms of Eagan Avenatti and the X-Law Group are both disqualified from representing Plaintiff in the present lawsuit. Beltran, 867 F. Supp. 2d at 1078-84. “For a fact to be material, ‘a plaintiff must show that had the omitted information been disclosed, one would have been aware of it and behaved differently.’” Stanwood, 941 F. Supp. 2d at 1221 (quoting Falk v. Gen. Motors Corp., 496 F. Supp. 2d 1088, 1095 (N.D. Cal. 2007)). 44 See CAL.CIV.CODE § 1834.9.5 (Deering 2018) (outlining new bill that prohibits sale of cosmetics tested on animals); see also Humane Cosmetics Act, H.R. 2790, 115th Cong. (2017) (proposing federal regulation related to cosmetic animal testing). 45 See CAL.CIV.CODE § 1834.9 (banning cosmetic companies from using animal tests in California where alternative methods are available); see also SB-1249 Animal Testing: Cosmetics, CAL.LEGIS.INFO. (Sept. 28, 2018, 9:00 PM), https://leginfo.legislature.ca.gov/faces/ billTextClient.xhtml?bill_id=201720180SB1249 [https://perma.cc/PLU4-TW78] (providing California legislative counsel’s digest on impact of new bill). “Existing law prohibits manufacturers and contract testing facilities from using traditional animal testing methods within this state when an appropriate alternative test method has been scientifically validated and 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 101

Free Cosmetics Act (“the Act”) makes California the first and only state to explicitly prohibit the production and marketing of cosmetic products that were tested on animals.46 The Cruelty Free Cosmetics Act will be effective on January 1, 2020, and after that date, any cosmetic product developed or manufactured using animal tests cannot be sold in California.47 The Act does include exceptions, as it provides that animal tests may be used when the tested ingredient cannot be replaced, the test is required for a specific human health issue, and where the law has not accepted a non-animal alternative method.48 It also does not prohibit animal tests that are conducted to comply

recommended by the Interagency Coordinating Committee on the Validation of Alternative Methods (ICCVAM) or other specified agencies.” SB-1249 Animal Testing: Cosmetics, supra, note 45. 46 See CAL.CIV.CODE § 1834.9.5(a)(b) (listing types of cosmetic products excluded from production and marketing).

(a) Notwithstanding any other law, it is unlawful for a manufacturer to import for profit, sell, or offer for sale in this state, any cosmetic, if the cosmetic was developed or manufactured using an animal test that was conducted or contracted by the manufacturer, or any supplier of the manufacturer, on or after January 1, 2020. (b) For purposes of this section, the following terms apply:

(1) ”Animal test” means the internal or external application of a cosmetic, either in its final form or any ingredient thereof, to the skin, eyes, or other body part of a live, nonhuman vertebrate. (2) ”Cosmetic” means any article intended to be rubbed, poured, sprinkled, or sprayed on, introduced into, or otherwise applied to the human body or any part thereof for cleansing, beautifying, promoting attractiveness, or altering the appearance, including, but not limited to, personal hygiene products such as deodorant, shampoo, or conditioner. (3) ”Ingredient” means any component of a cosmetic as defined by Section 700.3 of Title 21 of the Code of Federal Regulations. (4) ”Manufacturer” means any person whose name appears on the label of a cosmetic product pursuant to the requirements of Section 701.12 of Title 21 of the Code of Federal Regulations. (5) ”Supplier” means any entity that supplies, directly or through a third party, any ingredient used in the formulation of a manufacturer’s cosmetic.

Id. 47 See id. § 1834.9.5 (explaining timeline of when prohibitions go into effect); Hilary Hanson, California Just Officially Banned The Sale Of Animal-Tested Cosmetics, HUFFPOST (Sept. 28, 2018, 5:40 PM), https://www.huffingtonpost.com/entry/california-just-officially-banned-the-sale- of-animal-tested-cosmetics_us_5b913ac6e4b0cf7b003d5c09 [https://perma.cc/GMJ3-T2L5] (explaining limitations on California Cruelty Free Cosmetics Act). 48 See CAL.CIV.CODE § 1834.9.5(c)(1) (listing prohibitions, limitations, and exemptions under California Cruelty Free Cosmetics Act). (c) The prohibitions in subdivision (a) do not apply to the following: 102 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV with foreign cosmetic safety regulations, provided that the test results were not used to determine the product’s safety in California.49 Despite these exceptions, the California Cruelty Free Cosmetics Act is an enormous victory for animals and advocates alike, and supporters are hopeful that it will influence the federal government to reconsider and eventually enact the Humane Cosmetics Act.50

IV. ANALYSIS

While California’s enactment of the Cruelty Free Cosmetics Act is a monumental accomplishment for animal rights supporters, it raises potentially concerning interstate commerce implications.51 Although the states maintain control of their police powers, generally allowing them to pass health and safety regulations, a state may not “do so in a way that discriminates against interstate commerce.”52 The U.S. Constitution’s

(1) An animal test of any cosmetic that is required by a federal or state regulatory authority if all of the following apply: (A) The ingredient is in wide use and cannot be replaced by another ingredient capable of performing a similar function. (B) A specific human health problem is substantiated and the need to conduct animal tests is justified and is supported by a detailed research protocol proposed as the basis for the evaluation. (C) There is not a nonanimal alternative method accepted for the relevant endpoint by the relevant federal or state regulatory authority.

Id. 49 See id. § 1834.9.5(c)(2) (“The prohibitions . . . do not apply to . . . [a]n animal test that was conducted to comply with a requirement of a foreign regulatory authority, if no evidence derived from the test was relied upon to substantiate the safety of the cosmetic sold in California by the manufacturer.”). 50 See Hanson, supra note 47 (suggesting encouragement for federal policy reform inspired by California’s new bill). 51 See U.S. CONST. art. I, § 8, cl 3 (giving Congress control of interstate commerce). Congress holds the power “[t]o regulate Commerce . . . among the several states.” Id. 52 See Sheridan & Keough, supra note 36 (pointing to limitations and interstate commerce implications of California’s new law).

Governor Brown signed the bill into law on Friday . . . . The governor’s signature may not be the last word, however. The law may be susceptible to challenges under the US Constitution’s Commerce Clause, as states generally may pass health and safety regulations but cannot do so in a way that discriminates against interstate commerce.

Id. See Police Powers, NOLO, https://www.nolo.com/dictionary/police-powers-term.html (last visited Sept. 23, 2019) [https://perma.cc/L2WG-M3R2] (describing states’ police powers).

The fundamental right of a government [is] to make all necessary laws. In the United States, state police power comes from the Tenth Amendment to the Constitution, which 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 103

Commerce Clause deems that interstate commerce must be regulated by the federal government and “implies a limitation on state authority to interfere with interstate commerce . . . .”53 However, the Court “has recognized the importance of state sovereignty in the market sphere . . . .”54 Further, while Congress maintains authority over interstate commerce regulations, a state holds an interest in those regulations when it is acting as a “guardian and trustee for its people . . . .”55 California has consistently shown a high regard for animal welfare in general.56 The Cruelty Free Cosmetics Act is a crucial move by California to protect its citizens’ interest in creating a system that legally protects animals, which may provide California with a way around the Act’s

gives states the rights and powers “not delegated to the United States.” States are thus granted the power to establish and enforce laws protecting the welfare, safety, and health of the public.

Id. 53 See U.S. CONST. art. I, § 8, cl. 3 (indicating Congress’s control over interstate commerce); see also Friends of the Eel River v. N. Coast R.R. Auth., 399 P.3d 37, 61 (Cal. 2017) (supporting notion that states may not burden interstate commerce). “‘[I]t is well settled that states cannot take an action that would have the effect of foreclosing or unduly restricting a railroad’s ability to conduct any part of its operations or otherwise unreasonably burdening interstate commerce.” Friends of the Eel River, 399 P.3d at 61 (quoting New Orleans & Gulf Coast Ry. Co. v. Barrois, 533 F.3d 321, 332 (5th Cir. 2008)). 54 See Friends of the Eel River, 399 P.3d at 73 (explaining states may have limited authority to regulate interstate commerce if applicable to state sovereignty). 55 See id. (describing possible exception to federal regulation of interstate commerce).

The high court has cautioned that notwithstanding the scope of Congress’s authority under the commerce clause, “[r]estraint in this area is . . . counseled by considerations of state sovereignty, the role of each State ‘as guardian and trustee for its people,’ and ‘the long recognized right of trader or manufacturer, engaged in an entirely private business, freely to exercise his own independent discretion as to parties with whom he will deal.’”

Id. (quoting Reeves, Inc. v. Stake, 447 U.S. 429, 438–39 (1980)). 56 See Donnellan, supra note 13 (discussing California’s measures to ban cruel animal tests); Sheridan & Keough, supra note 36 (explaining California’s ban on sale of animals skins and furs); Greg Henderson, California Passes Animal Welfare Law, AGWEB (Nov. 7, 2018, 5:17 PM), https://www.agweb.com/article/california-passes-animal-welfare-law/ [https://perma.cc/27SR- ENCT] (discussing California’s approval of Proposition 12).

Proposition 12, which would require all eggs sold in . . . [California] come from cage- free hens by 2022, was approved with 59% of the vote. . . . The new law also adds provisions that would affect veal and pork production, setting new minimum requirements on the size of pens for sows and calves raised for veal, and it bans the sale in California of products from hens, calves and pigs raised in other states that do not meet California’s standards.

Henderson, supra note 56. 104 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV interstate commerce implications.57 This is an issue to be decided by the courts, which may experience an influx in suits related to animal testing in 2020, as it is unlikely that cosmetic companies currently performing animal tests will simply conform to California’s new regulation.58 In Ass’n des Eleveurs de Canards et d’Oies du Quebec v. Harris, the court considered a similar California animal welfare law and its potential Commerce Clause violation.59 Plaintiffs, three sellers of foie gras, brought suit to enjoin California representatives and the State of California from enforcing a statute banning the sale of foie gras from force-fed animals.60 Plaintiffs’ challenged the statute on multiple grounds, including a violation of the Commerce Clause.61 The Court of Appeals for the Ninth Circuit denied that claim, affirming the District Court’s findings that the statute does

57 See Friends of the Eel River, 399 P.3d at 73 (indicating exception to Congress’s authority relative to interstate commerce). Despite Congress’s control of interstate commerce, state sovereignty allows regulation when the state is acting as a “guardian [of] its people.” Id. 58 See Kathleen Sanzo, Collie James, & Amaru Sanchez, INSIGHT: New California Law Will Ban Sale of Cosmetics Tested on Animals, BLOOMBERG LAW (Nov. 1, 2018, 8:27 PM), https://news .bloomberglaw.com/product-liability-and-toxics-law/insight-new-california-law-will-ban-sale-of- cosmetics-tested-on-animals [https://perma.cc/VFZ2-Y9BH] (outlining extensive steps cosmetic companies will require to prepare compliance with California’s new law). In preparation for the “relatively short time line for the effective date of the new law, cosmetic manufacturers” will need to develop record keeping strategies “in the event that any claim is asserted against [them],” review their supply chains to ensure ingredients were not tested on animals, review contracts with suppliers to ensure compliance with the new law, and develop new ways to “evaluate the safety of new ingredients.” Id. 59 See 729 F.3d 937, 941 (9th Cir. 2013) (upholding California’s ban on sale of liver acquired from force-feeding birds). 60 See id. at 942–43 (identifying parties and statute involved in claim).

[Plaintiffs] are [two] non-California entities that raise ducks for slaughter and are producers and sellers of foie gras. . . . [and] a restaurant in California that sold foie gras before [the statute] came into effect . . . . The statutory provision Plaintiffs seek to enjoin, § 25982, is within the statute entitled ‘Force Fed Birds.’ Section 25982 states: A product may not be sold in California if it is the result of force feeding a bird for the purpose of enlarging the bird’s liver beyond normal size . . . . Plaintiffs filed a lawsuit to enjoin [Defendants] . . . Attorney General Kamala Harris, Governor Edmund Brown, and the State of California . . . from enforcing the statute.

Id. at 942-43 (internal quotations omitted). See Foie Gras: Cruelty to Ducks and Geese, PETA, https://www.peta.org/issues/animals-used-for-food/factory-farming/ducks-geese/foie-gras/ (last visited Oct. 2, 2019) [https://perma.cc/Y5RN-D4ER] (describing torturous process of force-feeding caged birds to produce foie gras). Foie gras is a French term that means “fatty liver” and is produced by force-feeding caged male ducks to enlarge their livers. Id. The process often results in death when food “is forced into the ducks’ lungs or when birds choke on their own vomit” due to forced over-consumption. Id. 61 See Harris, 729 F.3d at 946-47 (describing plaintiff’s challenges). “Plaintiffs contend that . . . § 25982 violates the Commerce Clause because the statute: (1) discriminates against interstate commerce; and (2) directly regulates interstate commerce.” Id. at 947. 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 105 not violate the Commerce Clause because it does not discriminate against interstate commerce, does not directly regulate interstate commerce, and does not substantially burden interstate commerce.62 If the Cruelty Free Cosmetics Act is challenged for a Commerce Clause violation, the court is likely to reach a similar conclusion to the Harris decision.63 Similar to the statute challenged in Harris, the Cruelty Free Cosmetics Act does not discriminate against interstate commerce because it bans cosmetic products based only on the method of production rather than the location of production.64 The Act bans the sale of cosmetic products that were produced using animal testing both in California and out of state.65 Additionally, the Act does not directly regulate interstate commerce because it is not solely aimed at out-of-state manufacturers and only imposes production standards on cosmetics sold in California.66 Moreover, it is not a price-fixing statute and does not produce a definite effect of conflicting legislation.67 An argument that the Act substantially burdens interstate

62 See id. at 947–53 (discussing court’s reasoning in support of holding that statute does not violate Commerce Clause). The statute’s “economic impact does not depend on where the items were produced, but rather how they were produced.” Id. at 948. “Because § 25982 bans the sale of both intrastate and interstate products that are the result of force feeding a bird, it is not discriminatory.” Id. (quoting Pac. Nw. Venison Producers v. Smith, 20 F.3d 1008, 1012 (9th Cir., 1994)). The Ninth Circuit also found that the statute does not directly regulate interstate commerce because (1) it is not aimed solely at out of state producers, (2) only imposes standards on foie gras sold in California, (3) does not impose any prices for the products, and (4) does not produce a definite effect of conflicting legislation. Id. at 948–51. The statute does not substantially burden interstate commerce because (1) it is not discriminatory, (2) it does not produce inconsistent regulation of nationally uniform activities, (3) any burden is outweighed by the local interest to prevent animal cruelty by outlawing the actual practice and sale of foie gras, and (4) the State’s legitimate belief that the ban would discourage consumption of such products. Id. at 951–52. 63 See Harris, 729 F.3d at 951–52 (deciding statute banning sale of foie gras produced using force feeding does not violate Commerce Clause). 64 See CAL.CIV.CODE § 1834.9.5 (Deering 2018) (banning sale of cosmetics produced through animal testing beginning in 2020). “Notwithstanding any other law, it is unlawful for a manufacturer to import for profit, sell, or offer for sale in this state, any cosmetic, if the cosmetic was developed or manufactured using an animal test that was conducted or contracted by the manufacturer, or any supplier of the manufacturer . . . .” Id. (emphasis added). 65 See id. (asserting ban does not apply solely to out of state cosmetics). The Act bans the sale of “any cosmetic, if the cosmetic was developed or manufactured using an animal test . . . .” Id. (emphasis added). 66 See id. (indicating place of cosmetic’s production is irrelevant). The Act only regulates the sale of cosmetic products in California by stating, “it is unlawful for a manufacturer to import for profit, sell, or offer for sale in this state . . . .” Id. (emphasis added). 67 See id. (supporting Act does not infringe on specific Commerce Clause issues). The Act does not include any language to suggest imposing price fixation or that produces definite conflicting litigation. Id.; see also Harris, 729 F.3d at 951 (indicating mere possibility of producing conflicting legislation). “The [Supreme] Court has never invalidated a state or local law under the dormant Commerce Clause based upon mere speculation about the possibility of conflicting 106 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV commerce is also unlikely to succeed due to the notion that it does not discriminate against interstate commerce.68 Further, it does not impose any state regulations inconsistent with nationally uniform regulations, as no federal regulations regarding animal testing in the cosmetic industry currently exist.69 Finally, California has long displayed a strong local interest in preventing animal cruelty.70 Its prohibition on the use of animal tests in the cosmetic industry and the sale of cosmetics produced through animal testing is meant to protect that local interest by discouraging the consumption of cosmetic products tested on animals.71 California is one of the only states with laws banning cosmetic animal testing, and its Cruelty Free Cosmetics Act puts it even further ahead

legislation.” Harris, 729 F.3d at 951 (quoting S.D. Myers, Inc. v. City & Cnty. of San Francisco, 253 F.3d 461, 470 (9th Cir. 2001)). 68 See CAL.CIV.CODE § 1834.9.5 (implying Cruelty Free Cosmetics Act does not discriminate against interstate commerce). 69 See id. § 1834.9.5(c) (providing Act’s limitations on animal testing regulations).

(c) The prohibitions in subdivision (a) do not apply to . . . [a]n animal test of any cosmetic that is required by a federal . . . regulatory authority if all of the following apply: (A) The ingredient is in wide use and cannot be replaced by another ingredient capable of performing a similar function. (B) A specific human health problem is substantiated and the need to conduct animal tests is justified and is supported by a detailed research protocol proposed as the basis for the evaluation. (C) There is not a nonanimal alternative method accepted for the relevant endpoint by the relevant federal . . . regulatory authority.

Id. See Animal Testing and Cosmetics, supra note 8 (stating ruling federal legislation). The FD&C Act is the United States’ primary federal authority for regulating safety guidelines for food, drugs, and cosmetics. Id. It fails to provide any regulations on cosmetic animal testing. Id. See Animal Welfare Act, supra note 26 (stating sole federal regulation surrounding animals used for research purposes). The Animal Welfare Act is “the only Federal law in the United States that regulates the treatment of animals in research” but does not provide any regulations on animal testing in the cosmetic industry. Id. 70 See Donnellan, supra note 13 (explaining history of animal testing regulations in California); Sheridan & Keough, supra note 36 (identifying California’s specific ban on sale of skins and furs); Henderson, supra note 56 (discussing California’s new regulations on hen, calf, and pig enclosures); see also Beltran v. Avon Prods., 867 F. Supp. 2d 1068 (C.D. Cal. 2012) (indicating importance of cruelty free cosmetics for Avon customers); Stanwood v. Mary Kay, Inc., 941 F. Supp. 2d 1212, 1216 (C.D. Cal. 2012) (describing class action fraudulent concealment claim against cosmetic company). 71 See Harris, 729 F.3d at 952 (indicating state statute did not substantially burden interstate commerce). California’s local interest in preventing animal cruelty outweighs the potential burden on interstate commerce. Id. “The district court found that the State has pursued its interest in preventing animal cruelty ‘both by outlawing the actual practice of force-feeding birds for the purpose of enlarging their livers . . . and the sale of such products . . . .’” Id. “‘[T]he prohibition of animal cruelty itself has a long history in American law, starting with the early settlement of the Colonies.’” Id. (quoting United States v. Stevens, 559 U.S. 460, 469 (2010)). 2020] THE FUTURE OF COSMETIC ANIMAL TESTING 107 of other pro-animal welfare states.72 Although the Act is scrutinized due to its exceptions and its potential interstate commerce implications, it is an important milestone in creating a system of regulations that is representative of the collective conscience of California’s citizens with regard to animal welfare.73

V. CONCLUSION

Despite the historic belief that animals are inanimate and incapable of suffering, modern science has led to a more accurate understanding of animals’ sentience. Accordingly, the public no longer tolerates inhumane treatment of animals and there has been a trend to protect animals’ rights. With regard to animal testing, there has been a global movement toward eliminating the practice from the cosmetic industry entirely. Although the United States does not have any federal laws regulating cosmetic animal testing, some states, including California, have adopted their own regulations. Cosmetic companies in California have been banned from using animal testing methods since 2000. In 2018, California enacted the Cruelty Free Cosmetics Act which bans the sale of cosmetic products that have been tested on animals. The Act goes into effect on January 1, 2020 and will require cosmetic companies selling products in California to begin using alternative testing methods. The courts may experience an influx in suits brought by cosmetic companies against the State of California, and a Commerce Clause violation is likely to be alleged given the Act’s obvious potential effects on interstate commerce. However, that allegation will likely be denied because the Act does not discriminate against interstate commerce, does not directly regulate interstate commerce, and does not substantially burden interstate commerce. Rather, the Act bans the sale of cosmetics based on production methods and reflects a prominent local interest to protect animal welfare. That local interest outweighs any potential burden to interstate commerce. Although the Act includes some exceptions, it is an essential victory for animals and animal welfare supporters alike. Supporters of the Act hope

72 See Sheridan & Keough, supra note 36 (outlining California’s dedication to protect animal welfare). “California was the first state in the nation to ban actual animal testing, [and] . . . New York, New Jersey, and Virginia have similar laws barring animal testing.” Id. 73 See Hanson, supra note 49 (discussing Cruelty Free Cosmetics Act’s limitations); Sheridan & Keough, supra note 54 (explaining Cruelty Free Cosmetics Act’s potential interstate commerce violation); Donnellan, supra note 13, at 272–74 (outlining California’s attempts to regulate cosmetic animal testing). 108 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV that its enactment will encourage the federal government to reconsider the Humane Cosmetics Act. The Humane Cosmetics Act would federally ban the sale of cosmetics produced using animal testing and would allow the United States to join the numerous countries which have already implemented similar legislation.

Jane K. Innis MASSACHUSETTS NONCOMPETITION AGREEMENT ACT: A ROSE OF A DIFFERENT COLOR

“America’s competitive advantage lies in its human talent. All of us should be doing everything we can to cultivate and develop our work force.”1

I. INTRODUCTION

A noncompete agreement or a noncompete clause in an employment contract (collectively referred to herein as the “noncompete(s)”) is a popular instrument among employers to prevent their employees from working for their rivals post-employment.2 However, courts across the nation are divided on the enforceability of noncompetes due to the constraints that they impose on employees’ post-employment mobility.3 On one end of the spectrum, states in favor of protecting employees’ mobility have completely banned

1 See Elaine L. Chao, Government and Industry Must Invest, N.Y. TIMES (Nov. 7, 2012, 3:05 PM), https://www.nytimes.com/roomfordebate/2012/07/09/does-a-skills-gap-contribute-to-unemp loyment/government-and-industry-must-invest [https://perma.cc/LAW7-MVR9] (quoting Elaine L. Chao’s thoughts on America’s talented workforce); Secretary Elaine L. Chao, U.S. DEP’T OF TRANSP., https://www.transportation.gov/mission/meet-secretary/secretary-elaine-l-chao (last visited Feb. 25, 2019) [https://perma.cc/W9HW-D6GS] (showing Elaine Chao’s biography and credentials). 2 See Mitchel v. Reynolds, 24 Eng. Rep. 347, 351–52 (Courts of King’s Bench 1711) (noting landmark case that established precedent for noncompete in American employment law); see also Christine M. O’Malley, Note, Covenants Not to Compete in the Massachusetts Hi-Tech Industry: Assessing the Need for A Legislative Solution, 79 B.U. L. REV. 1215, 1216 (1999) (asserting businesses’ increasing reliance on noncompetes “to protect not only trade secrets and confidential business information, but also their investment in a particular employee.”). Most noncompetes “contain a strong bias in the employer’s favor” because they compel “the prospective employee, who lacks bargaining power and legal sophistication, to sign it as a condition of employment.” O’Malley, 79 B.U. L. Rev. at 1216. 3 See Greg T. Lembrich, Note, Garden Leave: A Possible Solution to the Uncertain Enforceability of Restrictive Employment Covenants, 102 COLUM.L.REV. 2291, 2291–94 (2002) (stating noncompetes enforceable in some states); see also Norman D. Bishara & Michelle Westermann-Behaylo, The Law and Ethics of Restrictions on an Employee’s Post-Employment Mobility, 49 AM.BUS. L. J. 1, 15 (2002) (“[C]ourts will allow enforcement when the restrictions are reasonable and legitimate business interests are being protected.”). Courts that recognize noncompetes often engage in a balancing test between businesses’ interests and the employee’s mobility. Bishara, 49 AM.BUS. L. J. at 15. Courts take into consideration factor such as, the balancing test are the length of the restricted period, the scope of the restricted activities, and “the significance of the employee’s skills.” Id. at 16–18. 110 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV noncompetes.4 On the other end of the spectrum, states in favor of protecting employers’ business interests understand the importance of noncompetes, but historically have been reluctant to enforce them.5 Massachusetts falls in the latter category.6 In Massachusetts, a state driven by its skilled workforce and technological innovation, noncompetes are popular instruments that employers use to prevent the transfer of skills and knowledge of their employees to competitors.7 However, there is no clear framework as to how

4 See CAL.BUS.&PROF.CODE § 16600 (Deering 2018) (prohibiting noncompete in California); see also Lembrich, supra note 3, at 2297–302 (asserting noncompetes impede competition and result in unequal bargaining power between employers and employees); Nina B. Ries, Understanding California’s Ban on Non-Compete Agreements, HUFFPOST (Feb. 23, 2017, 12:12 PM), https://www.huffpost.com/entry/understanding-californias-ban-on-non-compete- agreements_b_58af1626e4b0e5fdf6196f04 [https://perma.cc/9HXT-6XNV] (explaining California’s strict ban on noncompete due to strong policy reasons, such as keeping “residents gainfully employed, able to provide for themselves and their families, and off the welfare and social service rolls.”). 5 See New England Canteen Serv., Inc. v. Ashley, 363 N.E.2d 526, 527–28 (Mass. 1977) (holding noncompete unenforceable because of broad language and geographic restriction of agreement); Richmond Bros., Inc. v. Westinghouse Broad. Co., 256 N.E.2d 304, 307 (Mass. 1970) (holding noncompete unenforceable because agreement was “no longer reasonably necessary for the protection of the plaintiff’s business.”); see also Lembrich, supra note 3, at 2294–97 (stating noncompetes are “commonly used by employers to protect their businesses from the dangers inherent when key employees terminate their employment.”). 6 See Bear Stearns & Co. v. Sharon, 550 F. Supp. 2d 174, 177 (D. Mass. 2008) (finding plaintiff is likely to prevail on merits because “if not all, of Sharon’s clients have transferred their accounts at Bear Stearns to Morgan Stanley”); Bear Stearns & Co. v. McCarron, SUCV2008-00979-BLS1, 2008 Mass. Super. LEXIS 503, at *9 (Mass. Super. Ct. Mar. 5, 2008) (finding plaintiff unlikely to prevail due to lack of evidence showing “employees solicited their sales assistants to leave the employer or that the employees took with them confidential client financial information.”). Massachusetts recognizes information and skills unique to a business are paramount to that business’ success; however, to prevail, the business must demonstrate the noncompete is imperative to the business’ success. Sharon, 550 F. Supp. 2d at 177. 7 See O’Malley, supra note 2, at 1216 (asserting “Massachusetts has a well-founded reputation as one of the leading ‘hot spots’ of high technology . . . industry in the United States” and noting “hi-tech companies have increasingly relied on broad non-compete[s] . . . in employment agreements . . . to protect not only trade secrets and confidential business information, but also their investment in a particular employee”); see also Asma Khalid, Zeninjor Enwemeka & Daigo Fujiwara, What the Data Tell Us About the Future of Work in Mass., WBUR (Oct. 30, 2017), https://www.wbur.org/bostonomix/2017/10/30/future-jobs-data-massachusetts [https://perma.cc /56E5-YW5P] (showing statistics regarding Massachusetts’s workforce and job trends); Tamara Koehler, Top 5 Industries in Massachusetts: Which Parts of the Economy Are Strongest?, NEWSMAX (Apr. 9, 2015, 1:55 PM), https://www.newsmax.com/fastfeatures/industries- massachusetts-economy/2015/04/09/id/637513/ [https://perma.cc/ZC4L-FQJB] (stating Massachusetts’ technology industry is second best to Silicon Valley’s); Russell Beck, Massachusetts Noncompete and Trade Secret Reform Has Arrived: What You Need to Know., FAIR COMPETITION L. (Aug. 1, 2018), https://www.faircompetitionlaw.com/2018/08/01/massachusetts- noncompete-and-trade-secret-reform-has-arrived-what-you-need-to-know/ [https://perma.cc/F9 CU-KTPV] (explaining progress in Massachusetts’s noncompete reform due to increased reliance on human capital). 2020] A ROSE OF A DIFFERENT COLOR 111 enforceability is determined and thus, for over a decade, the Massachusetts legislature has attempted to pass legislation to regulate noncompetes.8 After years of debate, Massachusetts passed a bill that not only codified Massachusetts’ noncompete law for the first time, but also made Massachusetts the first state in the United States to provide employees with the benefit of getting compensated for refraining from engaging in employment with their employers’ competitors, such right is known as garden leave.9

II. HISTORY

A. The Origin of Garden Leave

Garden leave is a well-established British phenomenon commonly referred to as being paid “while you tend your garden,” or in other words, “being paid while doing nothing.”10 The doctrine is a variation of a traditional notice provision.11 The employee, instead of continuing his or her

8 See Beck, supra note 7 (outlining Massachusetts’s noncompete reform history). 9 See MASS.GEN.LAWS ANN. ch. 149, § 24(L) (West 2018) (pointing to newly enacted noncompete law); Mass. Noncompete Law Takes Effect on Monday, BOS.GLOBE (Sept. 30, 2018, 7:27 PM), https://www.bostonglobe.com/business/talking-points/2018/09/30/mass-include-garden -leave-provision-noncompete-law/7o1PMjoozyjWYKg8vJr3kK/story.html [https://perma.cc/ VBT3-7VVU] (describing new Massachusetts law that expands garden leave protection to Massachusetts workers). 10 See Evening Standard Co. v. Henderson, I.C.R. 588, 594 (A.C. 1987) (showing first garden leave enforced in Great Britain). In Evening Standard Co., an employee a provided his employer two-month notice and was barred from joining rival newspaper companies while being paid his full salary. Id. 11 See Jena McGregor, Massachusetts Bill Would Require Employers to Pay Up When Enforcing Noncompetes-But There’s a Loophole, WASH.POST (Aug. 2, 2018 7:59 PM), https://www.washingtonpost.com/business/2018/08/02/massachusetts-bill-would-require- employers-pay-up-when-enforcing-noncompetes-theres-loophole/?utm_term=.afb62574217a [https://perma.cc/53PV-8WZZ] (explaining Massachusetts garden leave legislation); Peter A. Steinmeyer & Lauri F. Rasnick, Epstein, Becker & Green, P.C., Practice Note, Garden Leave Provisions in Employment Agreements, PRAC.L.LAB.&EMP’T, w-007-3506, at 1 (explaining garden leave is similarities to traditional notice provisions). Generally, a notice period is a clause in the employment contract requiring the employee to provide their employer a minimum period of notice that they are terminating their employment. Id. See Will Kenton, Notice of Termination, INVESTOPEDIA, https://www.investopedia.com/terms/n/notice-of-termination.asp (last updated June 17, 2019) [https://perma.cc/XM2U-FBVJ] (explaining what notice of termination is generally). A notice period rarely appears in an American employment contract because the vast majority of American employment agreements are “at-will.” Id. “An at-will employment arrangement gives both the employer and the employee the ability to end the employment relationship at any time” with or without cause. Patricia Hunt Sinacole, At-will Employees Have Few Options When Fired, BOS.GLOBE (Sept. 9, 2016, 6:57 PM), https://www.bostonglobe.com /business/2016/09/09/will-employees-have-few-options-when-fired/9COTyBAWZy5LVmQkz2p UuN/story.html [https://perma.cc/PET2-B2JP]. 112 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV work during the notice period, is relieved from his or her duties and responsibilities; however, the employee is employed with his or her employer, and hence, cannot commence work for a competitor.12 The development of garden leave in Britain was largely in response to judicial hostility toward noncompetes concerning fairness to employees.13 The garden leave is the product of judicial system’s favoritism towards freedom of contract where the British courts want to ensure that employees can freely choose their employers, or for a lack of better word, to compete.14 Ironically, the concept of garden leave portrays exactly what it is trying to prevent – restricting employees’ mobility to move from one employer to another.15 Nevertheless, British courts have enforced garden leave if the undue burden of the restrictions placed on employees are alleviated through some form of monetary compensation.16 Garden leave in Britain continues to develop through case law and is widely and judicially recognized and enforced through the remedy of an injunction.17

B. Garden Leave In The United States

Garden leave is relatively new in the United States and thus, there are no precedents explicitly addressing its enforceability.18 However, some states, such as New York and Delaware, where human capital is highly valued, have enforced similar benefits as garden leave.19 When disputes

12 See Steinmeyer, supra note 11, at 1–2 (distinguishing traditional notice provision and garden leave). 13 See Bishara, supra note 3, at 2–6 (explaining historical development of garden leave). 14 See Lembrich, supra note 3, at 2306–08 (outlining inception of garden leave). 15 See id. at 2313–14 (asserting that employees essentially forced to stay at current employment for set period of time). Garden leave’s mandatory salary payment makes it “fair” to constrain an employee from choosing who he or she wants to work for. Id. 16 See id. (emphasizing court’s focus on compensation as tradeoff for noncompete not to compete). 17 See id. at 2314 (“Due largely to the greater certainty surrounding their enforceability, garden leave clauses have become common in the contracts of key employees in English businesses looking to protect themselves against the departure of such personnel for competitors.”). 18 See Bishara, supra note 3, at 41–43 (noting lack of case development pertaining to garden leave). 19 See Natsource LLC. v. Paribello, 151 F. Supp. 2d 465, 467 (S.D.N.Y. 2001) (granting thirty day period notice termination provision with ninety day period noncompete); Lumex, Inc. v. Highsmith, 919 F. Supp. 624, 629–36 (E.D.N.Y. 1996) (upholding six-month noncompete if employee was paid salary and health and life insurance premiums); Maltby v. Harlow Meyer Savage Inc., 633 N.Y.S.2d 926, 930 (Sup. Ct. 1995) (finding noncompete reasonable “on condition that plaintiffs continue to receive their salaries for six months while not employed by a competitor”); Estee Lauder Co. Inc. v. Batra, 430 F. Supp. 2d 158, 182 (S.D.N.Y. 2006) (focusing on employee-executive was entitled to full salary and salary from non-competitive work); Steinmeyer, supra note 11, at 1 (explaining how garden leave is incorporated in New York’s 2020] A ROSE OF A DIFFERENT COLOR 113 arise in the aforementioned courts, enforceability is determined by “weigh[ing] the need to protect the employer’s legitimate business interests against the employee’s concern regarding the possible loss of livelihood.”20 When restrictions are counterbalanced with some payment of employee’s salary and entitlements, such as health and life insurance premiums, courts appear to be more willing to enforce such restrictions.21

C. Massachusetts Noncompetition Agreement Act

On August 10, 2018, Governor Charlie Baker signed a Massachusetts Noncompete Reform Bill, which codified Massachusetts’ noncompete law for the first time.22 The statute, Massachusetts Noncompetition Agreement Act (“Act”), became effective on October 1, 2018.23 The Act binds all noncompete contracts or employment contracts containing noncompete clauses entered from that day onwards.24 The Act

noncompetes). See generally Jeffrey S. Klein & Nichols J. Pappas, ‘Garden Leave’ Clauses in Lieu of Non-Competes, N.Y.L.J. (Feb. 5, 2009), https://www.weil.com/~/media/files/pdfs/ garden_leave.pdf [https://perma.cc/WL6D-F5LY] (stating that New York’s financial services industry uses garden leave provisions in noncompetes). New York courts consider the agreements’ “necessity and reasonableness” when determining the enforceability of noncompetes containing garden leave alike provisions. See Steinmeyer, supra note 11, at 1. When such agreements include provisions ensuring departing employees are paid during the agreed upon noncompete period, New York courts were more willing to find such agreements necessary and reasonable and thus, enforceable. Id.; cf. Credit Suisse Securities (USA) LLC v. Ebling, No. 06 Civ. 11339, 2006 WL 3457693, at *1, *3–4 (S.D.N.Y. Nov. 27, 2006) (failing to enforce thirty day period provision because employee already commenced work with competitor). In Ebling, the court refused to enforce the provision – even though the employee already commenced work with the competitor – because the employer failed to demonstrate that they will suffer from irreparable harm absent injunctive relief as it already suffered the harm it alleged to support its injunctive relief claim. 2006 WL 3457693, at *3. 20 See Natsource, 151 F. Supp. 2d at 472 (explaining how courts determine enforceability). An employee loses “livelihood” when he or she is not engaged in the work he or she did for too long and as a result, he or she is rendered unemployable within the industry they once worked in. Id. 21 See sources cited supra note 19 and accompanying text (emphasizing compensation as determinative factor for enforcing noncompetes in garden leave provisions). Typically, a restrictive covenant is a clause in an employment contract that prohibits an employee from competing with a former employer for a certain period of time after the employment relationship has ended. Restrictive Covenants, Non-Compete Agreements, and California Law, BONA LAW PC, https://www.businessjustice.com/restrictive-covenants-and-non-compete-agreements-and- california.html (last visited Nov. 17, 2018) [https://perma.cc/9Q7H-32LB]. A restrictive covenant, other than its name, serves identical purposes in an employment contract as a noncompete agreement. Id. 22 See MASS.GEN.LAWS ANN. ch. 149, § 24(L) (West 2018) (stating date Governor Charlie Baker signed bill). 23 See id. (indicating law’s effective date). 24 See id. (highlighting how Act pertains to all noncompetes prospectively). 114 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV maintains aspects of existing law, including the requirement that noncompetes are necessary to protect recognized legitimate business interests, such as trade secrets.25 Additionally, the Act requires that terms of agreement regarding time, space, and scope are reasonable, noncompetes align with public policy, and courts have the power to amend the terms of noncompete if the terms are deemed overly broad.26 The Act requires that there must be a garden leave or some “other mutually-agreed upon consideration” provision in order to have a noncompete to be effective.27 Garden leave is defined in two places under the statute.28 Section 24(L)(a) defines a garden leave clause as: “an employer agrees to pay the employee during the restricted period, provided that such provision shall become effective upon termination of employment unless the restriction upon post-employment activities are waived by the employer or ineffective under subsection (c)(iii).”29 Section 24(L)(b)(vii) points out that every noncompete must be “supported by a garden leave clause or other mutually- agreed upon consideration between the employer and the employee, provided that such consideration is specified in the noncompete agreement.”30 Additionally, the statute provides that:

To constitute a garden leave clause within the meaning of this section, the agreement must (i) provide for the payment, consistent with the requirements for the payment of wages under section 148 of chapter 149 of the general laws, on a pro-rata basis during the entirety of the restricted period, of at least 50 percent of the employee’s highest annualized based salary paid by the employer within the 2 years preceding the employee’s termination; and (ii) except in the event of a breach by the employee, not permit an employer to unilaterally discontinue or otherwise fail or refuse to make the payments; provided, however, if the restricted period has been increased beyond 12 months as a result of the employee’s breach of a of a fiduciary duty to the employer or the employee has unlawfully taken, physically or electronically, property belonging to the employer, the

25 See id. (explaining existing portion of law adopted into new law). 26 See Beck, supra note 7 (stating provisions of existing law that were codified into statute). 27 See § 24(L)(a) (highlighting what is required for effective garden leave provision). 28 See id. §§ 24(L)(a), 24(L)(b)(vii) (showing locations in Act that garden leave is defined). 29 See id. (emphasizing definition of garden leave). 30 See id. § 24(L)(b)(vii) (pointing out substitutes that may replace garden leave provisions). 2020] A ROSE OF A DIFFERENT COLOR 115

employer shall not be required to provide payments to the employee during the extension of the restricted period.31

Neither § 24(L)(a) nor § 24(L)(b)(vii) provides a clear and concise interpretation of what constitutes “mutually-agreed upon consideration,” which will later be discussed as a potential slippery slope for employers to choose.32

III. ANALYSIS

A. Case Law Development

Caselaw in America involving garden leave or garden leave clauses is sparse because the instrument is relatively new to this country and “is not utilized by many employers in their standard employment contracts.”33 As to the employers that do use it, not many employees affected by such clause would challenge the instrument because it is generally shorter in time and provides adequate compensation to departing employees.34 Garden leave clauses that are challenged often stem from a noncompete of an employer in the financial services industry “and are thus subject to the Financial Industry Regulator Authority (FINRA).”35

31 See id. (providing requirements for effective garden leave provisions). 32 See id. § 24(L)(b)(vii) (finding that Act does not mention or explain what “mutually-agreed upon consideration” entails). 33 See Lembrich, supra note 3, at 2315 (“American courts, however, have not yet had much opportunity to examine the validity of garden leave clauses; so whether they will be found more enforceable than restrictive covenants remains an open question.”). Although “American employers have begun inserting garden leave clauses into the employment contracts of their key employees,” they are not pure garden leave clauses like the well-developed and widely enforced clause in Britain. Id. at 2314–15. 34 Compare Kroeger v. Stop & Shop Cos., 432 N.E.2d 566, 571 (Mass. App. Ct. 1982) (finding that a “so long as he lives” clause “reached well beyond” company’s “legitimate interests”), and Slade Gorton & Co. v. O’Neil, 242 N.E.2d 551, 554 (Mass. 1968) (asserting that five-year term is excessive and troublesome), with Bear, Stearns, & Co. v. Sharon, 550 F. Supp. 2d 174, 178 (D. Mass. 2008) (pointing to 90-day garden leave provision), and Natsource LLC v. Paribello, 151 F. Supp. 2d 465, 472 (S.D.N.Y. 2001) (highlighting three-month garden leave provision). 35 See Steinmeyer, supra note 11, at 1 (highlighting garden leave clauses in financial services industry are subject to FINRA’s mandatory arbitration). FINRA is a “not-for-profit organization . . . authorized by Congress to protect America’s investors by making sure the broker- dealer industry operates fairly and honestly.” About FINRA, FINRA, https://www.finra.org/about (last visited Sept. 13, 2019) [https://perma.cc/LBP5-5T69]. The garden leave clauses used in the financial industry fall under FINRA’s regulations because the clauses govern the relationship between employees of broker-dealer firms, which is an “activity” of the broker-dealer business. Steinmeyer, supra note 11, at 2. 116 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

In recent cases involving noncompetes with provisions that resemble the Massachusetts garden leave provisions in the Act, courts across the nation have reached conflicting conclusions on the enforceability of such noncompetes.36 Massachusetts along with other jurisdictions such as Georgia have been reluctant to enforce garden leave provisions while New York and Delaware generally enforce those same provisions.37 In McCarron, Bear Stearns sought an injunction in Suffolk Superior Court’s Business Litigation Session to enforce a 90-day paid notice provision against three brokers that went to work for a competitor.38 The court ultimately refused to grant the requested injunction because the notice provision was never signed, and the notice provision was hidden in various deferred compensation plans instead of being clearly stated in an employment contract.39 In Bear Stearns & Co., Inc v. Sharon, Bear Stearns attempted to enforce a similar 90-day notice provision against a senior broker.40 The notice provision arose from a previous contractual agreement between Bear Stearns and the senior broker where the senior broker agreed to the 90-day notice provision in exchange for a raise.41 Although Bear Stearns agreed to

36 See Steinmeyer, supra note 11 (indicating that “states such as California, North Dakota, and Oklahoma” prohibit enforcement of noncompete agreements). Since garden leave clauses are typically part of noncompete agreements, they fall under the general prohibition. Id. These states recognize “the ability of individuals to use their knowledge and expertise to seek better employment opportunities.” Charlotte Raab, Rivals Likely to Reach for Google’s ‘Wallet’, PHYS.ORG (May 30, 2011), https://phys.org/news/2011-05-rivals-google-wallet.html [https://perma.cc/9W9R-8CHQ]. 37 See Sharon, 550 F. Supp. 2d at 178-79 (holding that enforcement of garden leave will be against public policy regarding at-will employment); see also Carvalho v. Credit Suisse Secs. (USA) LLC, No. 07-2612, 2007 U.S. Dist. LEXIS 80651, at *5 (N.D. Ga. Oct. 31, 2007) (denying enforcement reasoning that “[t]he income of these employees is substantially greater than their base salary . . . [and] the employer has the ability to significantly reduce their income and prohibit them from working for another employer of any kind during the notice period.”). Massachusetts appears to apply Georgia law, which is that non-competition agreements are enforceable so long as it is supported by consideration, a valid business interest, and reasonable in geographic area and the amount of time it covers, rather than New York law, where the courts tend to view garden leave clauses unfavorable and against public policy in general. Sharon, 550 F. Supp. 2d at 178-79. 38 See Bear Stearns & Co. v. McCarron, SUCV2008-00979-BLS1, 2008 Mass. Super. LEXIS 503, at *4–5 (Mass. Super. Ct. Mar. 5, 2008) (showing garden leave-like provision in noncompete employment agreement). The notice provision was akin to a garden leave provision in that Bear Stearns agreed to pay the brokers’ salaries during the period where the broker was not allowed to seek alternative employment with competitors; however, it had an added provision where Bear Stearns reserved the right, during the period, to terminate the brokers immediately or to not assign them any work. Id. 39 See id. at *8–9 (finding “Stealth” restrictive covenants unenforceable where said restrictions are “buried in the Terms and Conditions”). 40 550 F. Supp. 2d at 176 (pointing out Massachusetts case discussing noncompete agreement with garden leave clause). 41 See id. (explaining how broker and Bear Stearns entered into contract with notice provision). 2020] A ROSE OF A DIFFERENT COLOR 117 pay the senior broker his full salary during the notice period, the court still refused to grant an injunction that Bears Stearns requested.42 The court found the provision to be unenforceable because it required the employee to “continue an at-will employment against his will” by assigning the senior broker to perform during the period.43 However, courts in other states are more willing to enforce noncompetes involving garden leave provisions.44 In New York, an employer sought to enforce a 30-day notice provision along with a 90-day paid noncompete to stop one of its commodities brokers from resigning and accepting a job offer with its competitor.45 The court found the provisions reasonable and enforced them because the commodities broker was paid his full salary during the 120-day period.46 Since the Act came into effect in 2018, it has been mentioned in two published decisions.47 Unfortunately, neither of the decisions directly analyzed an agreement that was subject to the Act.48 However, the opinions serve instructive purposes to both employers and employees subject to the Act.49 In Tannatt v. Varonis Sys., Inc., Tannatt sought a declaration that the employment contract he signed in 2011, which contained a noncompete

42 See id. at 179 (indicating court’s holding). 43 See id. at 178 (finding provision to be more than just “a simple restrictive covenant against competition”). The court emphasized that requiring a notice period and assigning work to an employee during that notice period is in conflict with America’s long-standing jurisprudence of employment at will. Id. Employment at will is where an employer and employee enter into an employment contract for “an indefinite period of time.” Employment At Will, BALLENTINE’S LAW DICTIONARY (3d ed. 1969). Either the employer or the employee may terminate their “employment relationship with or without cause unless the right to do so is limited by a statute, other law or public policy, or an agreement between [the employer and the employee] . . . .” RESTATEMENT OF EMPLOYMENT LAW § 2.01 (AM.LAW INST. 2015). In addition, employment contracts in America are typically not subject to any notice period like the ones required in traditional English garden leave. See Charles A. Sullivan, Tending the Garden: Restricting Competition via “Garden Leave”, 37 BERKELEY J. EMP.&LAB. L. 293, 303 (2016). 44 See Natsource LLC v. Paribello, 151 F. Supp. 2d 465, 467 (S.D.N.Y. 2001) (introducing New York case where court enforced noncompete with garden leave clause). 45 See id. (pointing out enforced garden leave-like provision in New York employment contract). 46 See id. at 472 (emphasizing that enforcement is reasonable when employee is paid his salary during notice period). 47 See Tannatt v. Varonis Sys. Inc., No. Civ. 18-12589-JGD, 2019 WL 830482, at *4 (D. Mass. Feb. 21, 2019) (pointing to first Massachusetts case where garden leave is discussed indirectly); NuVasive, Inc. v. Day, No. 19-cv-10800, No. 19-cv-10995, 2019 WL 2287709, at *4 (D. Mass. May 29, 2019) (showing second Massachusetts case where court addressed garden leave requirements indirectly). 48 See cases cited supra note 47 (reiterating although cases involved garden leave, they did not directly address loopholes in new law). 49 See cases cited supra note 47 (stating that cases demonstrate Massachusetts’s reading of garden leave). 118 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV provision, was unenforceable.50 Tannatt argued that Massachusetts law should apply despite the fact that the contract he signed had a New York choice of law provision.51 Tannatt further argued that under Massachusetts law, the noncompete he signed was invalid because it did not meet the following two requirements under the Act: 1) Varonis, the employer, did not sign it; and 2) the noncompete failed to explicitly state that he had the right to seek counsel.52 In support of his position that Massachusetts law should apply, Tannatt pointed to Massachusetts’ strong policy in the application of its own law pertaining to noncompetes.53 Despite Tannatt’s efforts, the court ultimately ruled that the Act did not apply because the noncompete was entered into prior to the enactment of the Act.54 Moreover, Massachusetts’ policy does not prohibit the application of another state’s law and noncompetes containing extraterritorial choice of law provisions will survive scrutiny under the Act.55 A few months later, the court reached a similar holding in NuVasive, Inc. v. Day, where a former employee attempted to challenge the validity of his noncompete using similar arguments as Tannatt.56 While these decisions do not provide any direct guidance as to how courts will interpret noncompetes subject to the Act, they nevertheless demonstrate that employees will face an uphill battle when attempting to

50 See Tannatt, 2019 WL 830482, at *1–2 (pointing to facts of case and plaintiff’s arguments). 51 See id. (indicating facts of case). 52 See id. (pointing to plaintiff’s theory as to why his noncompete should be deemed invalid); see also Dawn Mertineit & Anne Dunne, For the First Time, a Massachusetts Court Weighs in on the New Noncompetition Agreement Act – Well, Sort Of, SEYFARTH SHAW (Feb. 27, 2019), https://www.tradesecretslaw.com/2019/02/articles/noncompete-enforceability/for-the-first-time-a- massachusetts-court-weighs-in-on-the-new-noncompetition-agreement-act-well-sort-of/? Utm_ source=Mondaq&utm_medium=syndication&utm_campaign=inter-article-link [https://perma.cc/ 3FLK-C4GK] (discussing how Tannatt was first Massachusetts district court case post-enactment of Act). 53 See Tannatt, 2019 WL 830482, at *3 (explaining Massachusetts’s policy regarding application of Massachusetts law on noncompete). 54 See id. (highlighting that Act only applies to noncompetes entered into post enactment of Act). 55 See id. (holding that applying New York law was not contrary to Massachusetts public policy). 56 See NuVasive, Inc. v. Day, No. 19-cv-10800, No. 19-cv-10995, 2019 WL 2287709, at *4 (D. Mass. May 29, 2019) (holding that application of foreign choice-of-law provisions was permissible and not against Massachusetts’ policy); Dawn Mertineit & Anne Dunne, Federal Judge Confirms That Massachusetts’ New Noncompete Law Does Not Require Garden Leave or Massachusetts Choice of Law, SEYFARTH SHAW (June 4, 2019), https://www.tradesecretslaw.com/ 2019/06/articles/noncompete-enforceability/federal-judge-confirms-that-massachusetts-new-noncompete-law-does-not-require-garden-leave-or-massachusetts-choice-of-law/ [https://perma.cc/D9QZ-9WE9] (summarizing NuVasive as second case relating to garden leave in Massachusetts’s federal district court). 2020] A ROSE OF A DIFFERENT COLOR 119 invalidate noncompetes when attacking the validity of noncompetes using choice of law arguments.57

B. Projection In The Enforceability Of Garden Leave Provisions

Garden leave provisions have several benefits that may overcome many of the judicial objections to traditional noncompetes.58 Notwithstanding Massachusetts’ previous tendency to find garden leave provisions unenforceable, it is likely that courts will enforce garden leave provisions because they dissolve some of the concerns that courts often point to as a reason as for rendering garden leave provisions unenforceable.59 First, garden leave reserves the departing employee’s ability to earn income.60 Second, garden leave strengthens the job market.61 Third, garden leave levels the bargaining power between employers and employees.62 Lastly, garden leave eases the tension between post-employment mobility and business-interest protection.63 The compensation element of Garden leave eliminates the relevance of the financial burden that is placed on a departing employee from a traditional restrictive covenant because the exiting employee is compensated

57 See cases cited supra note 47 (implying from holdings in cases that Massachusetts courts have decided in accordance with Act). 58 See Lembrich, supra note 3, at 2297 (introducing reasons why Massachusetts court should enforce garden leave). 59 See id. (foreseeing high likelihood of judicial enforcement to conform with Act and eliminate previous noncompete concerns). 60 See id. at 2315 (discussing how garden leave does not impede departing employees’ “ability to earn a living”). Courts that view garden leave provisions unfavorably tend to dislike the fact that the provisions prohibit “employees from working at their chosen trade, which inhibits their ability to earn a living.” Id. at 2298. In addition, courts take into consideration that these employees could potentially be a burden to the state if they are unable to find a similar position after the notice period because they have not been practicing in their realm of trade for an extended period of time. Id. 61 See Sullivan, supra note 43, at 305-11 (emphasizing courts’ unfavorable view toward general restriction over competition). Courts take the position that the purpose of noncompetition or variations of noncompetition clauses “is to deprive the public of the benefits of a competitive market.” Id. at 305-06. 62 See Lembrich, supra note 3, at 2317 (emphasizing employee on garden leave “has some bargaining chips of his own”). It is expensive for employers to use garden leave provisions in contracts with their employees because they not only have to pay their departing employees to “sit at home” and “tend their garden,” but also have to hire new employees or allocate resources that they could have used for something else to perform the duties and responsibilities of their departing employees. Id. at 2316-18. From a business standpoint, garden leave would be a loss in that case. Id. 63 See Bishara, supra note 3, at 25-27, 60–61 (“With garden leave the employer will more likely accurately value the true costs of restricting mobility and have an economic incentive to refrain from overreaching or any vindictive behavior.”). 120 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV with his or her salary and benefits.64 As with a traditional noncompete, the departing employee is generally not paid anything during the restricted period.65 “Starvation” is one major policy concern that holds back courts, such as Massachusetts, in enforcing noncompetes.66 Accordingly, by paying the departing employees during their restrictive period at the minimum mitigates that concern, which leads to greater probability of enforcement.67 Enforcement of garden leave provisions could potentially boost competition in the job market.68 The motivation behind an employer’s usage of a restrictive covenant is to protect the fruits of its investment from being taken by its competitors through one of its former employees.69 The consequences of an employee working for a competitor is worrisome for the employer because the employer has no control over the motivations and intentions of former employees, and whether those intentions and motivations are to take every piece of information available and every skill that he or she has acquired due to their employment at their former employer in order to benefit a competitor.70 Employers view noncompetes as the only shield it has to prevent irreparable consequences from a departing

64 See MASS.GEN.LAWS ANN. ch. 149, § 24(L)(a) (West 2018) (focusing on compensation rules). 65 See Steinmeyer, supra note 11 (showing what triggers “judicial scrutiny and concerns about fairness to the employee” in traditional noncompetes regarding ability to earn living); see also Hess v. Gebhard & Co., 808 A.2d 912, 916 (Pa. 2002) (“[C]ovenants not to compete were disfavored because prohibiting an employee from working under the supervision of one other than his original employer resulted either in his violation of the law or the deprivation of his right to earn a living . . . .”); Wells v. Wells, 400 N.E.2d 1317, 1319 (Mass. App. Ct. 1980) (pointing out that court is reluctant to enforce noncompetes “[o]ut of concern for an individual’s ability to earn a living”). 66 See Nike, Inc. v. McCarthy, 379 F.3d 576, 587 (9th Cir. 2004) (holding that financial burden is mitigated by Nike’s obligation to pay departing employee’s full salary); Natsource LLC v. Paribello, 151 F. Supp. 2d 465, 470 (S.D.N.Y. 2001) (suggesting that financial burden on departing employee is eliminated through payment during restricted period). “Starvation” in this context refers to the immense impact that restrictions on one’s ability to seek employment with competitors for an extended period of time can have on that one’s ability to survive, in an economic sense, in today’s society. See Estee Lauder Cos., Inc. v. Batra, 430 F. Supp. 2d 158, 181 (S.D.N.Y. 2006) (“[T]he concern that the breadth of such a prohibition would make it impossible for him to earn a living is assuaged by the fact that he will continue to earn his salary from Estee Lauder . . . .”). 67 See cases cited supra note 66 (stating that financial burden placed on individuals is mitigated by providing just compensation). 68 See Lembrich, supra note 3, at 2315 (showing that garden leave is less anti-competitive than traditional noncompetes). 69 See Bishara, supra note 3, at 2 (“The skills, relationships, and knowledge bound up in a firm’s employees have long been recognized as a source of important competitive advantage.”). Companies, especially in the technology industry, rely heavily on their human capital to generate revenue. Id. It is fair to say that a loss in human capital translates to a loss in revenue. Id. 70 See id. at 10 (“In a fast-moving business world where knowledge and the individuals who create and use that knowledge are key sources of competitive advantage, the legal mechanisms available to employers have become more important than ever.”). 2020] A ROSE OF A DIFFERENT COLOR 121 employee.71 The employers, especially ones that rely on the proprietary nature of their business product, specific knowledge, technology, or certain skills unknown to the public, fully expose these trade secrets to their employees and in turn, their competitors once an employee switches employers.72 Employers are placed in a vulnerable position with nothing more than a piece of paper that might protect everything that makes their business unique and economically successful in the market that they are in.73 Garden leave resolves such uncertainty and uneasiness in employers because it sends a signal to employers that there is a reliable means of protection, but only if they actually needed it.74 Knowing that the legal mechanism is legitimate, reliable, and enforceable rather than theoretical, employers will be prompted to only place restrictions on their key employees whose departure to a competitor will most certainly cause a detriment to his or her former employer.75 Courts would be less skeptical of the legitimacy and fairness of the restrictions imposed by garden leave provisions when knowing that enforcement is the employer’s last resort.76 Once it is established that garden leave is a reliable remedy, employers will have more confidence in the legal system to protect their business interests and will be more likely to invest in their employees and develop new technologies that

71 See Bishara,supra note 3, at 3–4 (emphasizing why employers are desperate to enforce contracts that restrict post-employment mobility). In 2011, Bank of America Corporation (the “Bank”) “lost a financial adviser with $5.9 billion in client assets to a rival.” Hugh Son, BofA Forces ‘Garden Leave’ on Brokers After Defection, BLOOMBERG (Feb. 11, 2011, 12:00 AM), https://www.bloomberg.com/news/articles/2011-02-18/bofa-forces-garden-leave-on-advisers- after-top-broker-defects [https://perma.cc/4QWG-PSX6]. Immediately after, the Bank forced some workers to sign reduced-pay 60-days “garden leave” agreements. Id. Companies are trying to prevent irreparable human capital and financial harm such as the one that the Bank suffered. Id. 72 See Margo E. K. Reder & Christine Neylon O’Brien, Managing the Risk of Trade Secret Loss Due to Job Mobility in an Innovation Economy With the Theory of Inevitable Disclosure, 12 J. HIGH TECH. L. 373, 376 (2012) (highlighting that “[i]ntangible [IP] constitutes more than three- fourths of the assets in knowledge businesses whose main value derives from innovation, know- how, brand and reputation.”). In today’s world, employees in general are highly educated and mobile. Id. “Assets are defined more by brilliant restless employees and their coding creations than by legacy physical company assets.” Id. Accordingly, it is much harder for companies to protect their intangible assets, as they cannot just lock employees away in a vault like they can with their physical assets. Id. at 377. 73 See id. at 378–80 (pointing out examples of “what is at stake for companies in intensely competitive sectors whose very existence is attributable to innovation.”). 74 See Lembrich, supra note 3, at 2317 (explaining how garden leave resolve unfairness toward employees). 75 See Gillian Lester, Restrictive Covenants, Employee Training, and the Limits of Transaction-Cost Analysis, 76 IND. L.J. 49, 50 (2001) (pointing out that employers’ investment in employee training is waning due to “decline of job stability and increasing mobility of labor”). 76 See id. (speculating courts’ rationale). 122 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV will benefit the public at large.77 As a result, the workforce will be stronger and the market will be more efficient.78 Garden leave balances the bargaining power between employers and employees.79 The Act’s fifty percent salary requirement makes it expensive for the employer to enforce Garden leave and similar provisions because the employer must pay the employee for every day that the employer holds the employee back from working for a competitor.80 This pushes employers to evaluate their employees thoroughly to determine whether it is actually necessary to enforce such a restriction.81 The employees that the employers deem necessary to place on garden leave are often highly educated and sophisticated individuals; thus, the bargaining power of the employees is comparable to that of their employer.82 If employees are able to protect themselves, it places less pressure on the court to be the last line of defense for the employees.83 Garden leave does not necessarily restrict an employees’ ability to seek employment with competitors.84 In fact, it could potentially give employees more freedom to seek employment.85 The reason being that garden leave provides an opportunity for employees to utilize the paid, notice period to seek employment with competitors.86 In other words, garden leave

77 See id. at 51 (asserting employers’ dilemma). “An employer may wish to reveal business secrets to employees or introduce employees to clients it has cultivated, yet fear that doing so would be risky should the employees depart and try to exploit the information.” Id. 78 See Lembrich, supra note 3, at 2315–16 (explaining how garden leave can strengthen job market). 79 See id. (asserting that garden leave levels playing field for employees). 80 See MASS.GEN.LAWS ANN. ch. 149, § 24(L)(a) (West 2018 (pointing to fifty percent salary requirement). Employers do have the option of settling for a “mutually agreed upon consideration” instead of paying their departing employees as required under garden leave, but it is a slippery slope that would make enforcement harder to succeed. Id. 81 See Bishara, supra note 3, at 26–27 (“[B]ecause the employer has an immediate and tangible cost to restricting mobility, the employer will refrain from using garden leave to restrict the mobility of lower-level employees.”). It is likely that employers are only going to place such restrictions on their most skilled employees with distinguished knowledge. Id. at 27. 82 See Lembrich, supra note 3, at 2317 (“[I]f an employee is so important that an employer would rather pay him his full salary to stay at home than allow him to go to a competitor, that employee clearly has some bargaining chips of his own.”). Some bargaining items include the restricted period in which the employee is refrained from working for a competitor. Id. 83 See id. at 2316 (suggesting that courts object to enforcement of noncompetes because they are “product of unequal bargaining power between employer and employee”). 84 See Bishara, supra note 3, at 27 (explaining how garden leave actually provides departing employee with greater job mobility). 85 See id. at 41–42 (pointing out that garden leave does not actually restrict post-employment mobility). 86 See id. at 60–61 (explaining benefits of garden leave). 2020] A ROSE OF A DIFFERENT COLOR 123 allows unhappy employees to quit their current position and look for their dream job while being paid.87

C. The Alternative Route

Under the Act, if an employer does not want to pay its departing employee his or her salary as required, it has the option to negotiate with its departing employee on some “other mutually agreed upon consideration” so long as that the negotiation occurs prior to the signing of the employment contract.88 However, the Act provides absolutely no guidance as to what other consideration besides the dollar value of at least fifty percent of the departing employee’s base salary will be acceptable.89 The lack of language in the Act seems to provide employers and employees with the freedom to contract terms that both parties see fit.90 Nonetheless, an employer that chooses to pursue the alternative route should be particularly careful to not have terms of an agreement that may fall under one of Massachusetts’s past concerns with enforcement of traditional noncompetes.91 An employer that is looking for compensation options in lieu of a direct monetary payment to its departing employee should consider tangible compensations, such as sign-on bonuses, stock options, health or insurance or retirement benefits, or a combination of other forms of non-monetary compensations.92

87 See id. (expanding further how garden leave yields higher employee mobility after employment). 88 See Lembrich, supra note 3, at 2291–94 (explaining alternative option to fifty percent salary requirement). Once the employer has contracted with the employee and agrees to pay said employee their salary after their employment, the employer cannot turn back on such promise later on if it decided not to. Id. 89 See id. (pointing to uncertainty in Act). It is safe to say that nominal consideration will mostly likely not be acceptable as a fair and reasonable replacement to garden leave. Id. 90 See id. (emphasizing how broad language in Act provides employers and employees freedom to contract). 91 See id. (noting employers who prefer alternative options to contract should do so with extreme cautions). Employees who choose not to follow through with the garden leave provisions in the Act should make sure that the alternative options resemble the garden leave provision in the Act to ensure greater enforceability. Id. 92 See Erin C. Horton, The New Frontier: Navigating the Massachusetts Noncompete Law One Month In, FOLEY &LARDNER LLP (Nov. 9, 2018), https://www.foley.com/en/insights/publications /2018/11/the-new-frontier-navigating-the-massachusetts-nonc [https://perma.cc/9RVM-PZAK] (suggesting other forms of compensation in lieu of garden leave payment). 124 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

D. Other Concerns

As shown in the Massachusetts cases involving variations of garden leave provisions, courts were concerned with assigning departing employees duties during the restricted period.93 In Sharon and McCarron, the court pointed out that Bear Stearns Co., in reserving the right to assign duties other than the departing employee’s normal duties, risk in violating America’s long standing jurisprudence of at-will employment.94 Employers, who decide to enter into garden leave provisions with their key employees, should consider solely paying their departing employees to “stay home” and “work in his garden” to avoid potential obstacles that may arise from being in conflict with the at-will employment jurisprudence, which provides the court with a reason to not to enforce the garden leave.95

IV. CONCLUSION

Garden leave may finally be a reliable instrument that eases the tension between businesses’ rights to protect their competitive advantages and employees’ rights to compete for the best possible employment suitable to their skills and expertise. The Act will most likely have higher enforcement success than previous versions of garden leave provisions because it alleviates the financial burden on employees, fosters competition in the job market, and levels the bargaining power of employees and employers, all of which were reasons that the previous versions of garden leave failed. Employers who take the alternate route to negotiate with their departing employees on some other “mutually agreed upon consideration” should understand that Massachusetts places a lot of emphasis on whether the departing employee is compensated during the period that he or she is restricted from working for a competitor and therefore, having consideration resembling the compensation requirement under garden leave will likely be considered valid than consideration that is remote from the statutory requirements.

Helen Yuxuan Huang

93 See cases cited supra note 34 (showing courts’ general concern with assigning other duties in conflict with idea of at-will employment). 94 See Bear Stearns & Co. v. Sharon, 550 F. Supp. 2d 174, 178 (D. Mass. 2008) (pointing to court’s reasoning); Bear Stearns & Co. v. McCarron, SUCV2008-00979-BLS1, 2008 Mass. Super. LEXIS 503, at *5 (Mass. Super. Ct. 2008) (focusing on court’s reasoning). 95 See Lembrich, supra note 3, at 2305–08 (noting underlying purpose of garden leave). MORE TARIFFS, MORE PROTECTION[ISM]

“The winds and waters of commerce carry opportunities that help nations grow and bring citizens of the world closer together. Put simply, increased trade spells more jobs, higher earnings, better products, less inflation, and cooperation over confrontation. The freer the flow of world trade, the stronger the tides for economic progress and peace among nations.”1

I. INTRODUCTION

International trade is economic transacting that involves the exchange of goods and services across international borders and territories “for the purpose of providing a nation with [the] commodities it lacks in exchange for those that it produces in abundance.”2 The concept of freely sharing the fruits of one’s labor in exchange for the products of another enables countries to efficiently utilize global resources to produce goods and services which fuels active competition and innovation.3 This ideology allows “individuals and businesses to take advantage of lower prices and increased choice” supporting strong economic growth in market systems.4 It also gives “individuals[] [the] freedom to decide how to spend and invest their money,” which provides people with opportunities to achieve financial freedom and economic prosperity.5 It is this concept in which the United States’ economy was founded and expanded upon.6

1 See President Ronald Reagan, Radio Address to Nation on International Trade, U.S. NAT’L ARCHIVES &RECORDS ADMIN. (Aug. 6, 1983), available at https://www.reaganlibrary.gov/ research/speeches/80683a [https://perma.cc/4YDZ-P887] (informing nation on international trade). 2 See Trent J. Bertrand, et al., International Trade, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com/topic/international-trade (last updated Nov. 1, 2019) [https://perma.cc/ 3ZFL-2J4Z] (defining international trade as exchanging goods and services between countries). 3 See The Importance of Trade, HERITAGE FOUND., https://www.heritage.org/trade/heritage- explains/the-importance-trade (last visited Oct. 25, 2019) [https://perma.cc/8PB4-AR9E] (examining importance of international trade and initiatives of current administration regarding trade agenda). Trade allows individuals and nations to concentrate on their particular expertise, as well as produce specialized goods and services. Id. This process efficiently utilizes labor and resources. Id. 4 See id. (explaining freer trade enables lower prices for consumers and allows for greater choices of goods). 5 See The Importance of Trade, supra note 3 (considering financial opportunities enabled by free trade). 6 See id. (explaining founders’ inspiration by citing Britain’s “cutting off . . . [t]rade” for declaring independence). 126 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Since international trade is an “inevitable part of the world,” it “is regularly the subject of contentious debate both on Capitol Hill and in the media.”7 With the arrival of the Trump administration in 2017, there has been no indication that the discussion on international trade will lose momentum anytime soon.8 The Trump administration assumed an aggressive approach on international relations relying heavily on tariffs and sanctions to bolster the President’s targeted trade agenda.9 Some contend “[t]his, in itself, is not unusual.”10 It is undeniable that previous government administrations imposed financial penalties on members of the international trading community in furtherance of their trade policies.11 However, the approach being utilized by the Trump administration is unparalleled in comparison to past administrations.12 Unlike any other administration, the Trump administration has exploited the tools of international trade “in a much more forceful and much more coordinated fashion than any president in the past.”13 The administrations’ far-reaching use of national security, ever-growing list of blacklisted foreign entities, and continuing pressure to change trade

7 See id. (explaining trade is common discussion amongst lawmakers); see also Andrew Weiland, Global Trade Is a Hot Topic, BIZTIMES (Apr. 18, 2016, 12:00 AM), https://biztimes.com/ global-trade-is-a-hot-topic/ [https://perma.cc/93TF-ZTWS] (pointing to popularity of topic of trade in 2016 presidential campaign); The Benefits of International Trade, U.S. CHAMBER OF COMMERCE, https://www.uschamber.com/international/international-policy/benefits-international -trade (last visited Oct. 30, 2018) [https://perma.cc/8EMB-SJTB] (outlining economic benefits of trading internationally). 8 See Adam Taylor, No President Has Used Sanctions and Tariffs Quite like Trump, WASH. POST (Aug. 29, 2018, 6:00 AM), https://www.washingtonpost.com/world/2018/08/29/no- president-has-used-sanctions-tariffs-quite-like-trump/?noredirect=on&utm_term=.b78665c45f10 [https://perma.cc/4MPD-7D8B] (focusing on administration’s unprecedented sanctions and increased use of tariffs); see also Weiland, supra note 7 (noting Trump’s campaign promise to place tariffs on foreign goods if elected). 9 See Taylor, supra note 9 (stating sanctions and tariffs are favored tool of Trump administration). 10 See id. (recognizing past administrations targeted use of such measures). While both the Obama and Bush administrations used sanctions “to punish foreign policy [trade] rivals, criminals, human-rights violators and terrorists,” the Trump administration increased the number of people on the list of sanctioned-persons to an “all-time high” in 2017. Id. 11 See Taylor, supra note 9 (comparing use of sanctions by past administrations). “The expansion of the list ‘demonstrates the desire to use this sanctions tool ever more creatively . . . .’” Id. 12 See Robert J. Samuelson, Trump’s Trade Policies Threaten to Do Enormous Harm, WASH. POST (May 9, 2018, 10:30 AM), https://www.washingtonpost.com/opinions/trumps-trade-policies- threaten-to-do-enormous-harm/2018/05/09/bf7c75a0-538e-11e8-9c91-7dab596e8252_story.html [https://perma.cc/P6JX-3J5A] (analyzing potential threats Trump Administration’s foreign policies pose). 13 See Taylor, supra note 9 (explaining current administration’s forceful use of trade, blurring line between trade policy and foreign policy). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 127 agreements has fueled the frustration of allied nations and lawmakers, as well as generated uncertainty for industries “in a way [which] could eventually backfire on Washington.”14 Through the weaponization of international commerce, the administration has blurred the line between its trade and foreign policy, inciting an unstable precedent.15 By promising better trade agreements in the absence of deal negotiations, the administration has caused a tumult of confusion making it nearly indiscernible whether this is a promising plan or protectionism in plain-view.16 This Note will seek to explore the Trump administrations’ trade policies by analyzing their agenda and the outcomes of their policies.17 Through historical and factual analysis, this Note will study similar strategies by past administrations and will offer distinctions between the positive and negative aspects of imposing such plans.18 By examining the resulting civil suits and constitutionality issues, this Note will explore the reactions of U.S. institutions, as well as the probing political resistance.19 By surveying datasets, this Note will identify the present and impending implications that such approach is having on the U.S. economy.20 Through review of international trading powers responses, this Note will reveal the backlash from longstanding trade partners.21 Prior to analyzing the state of the current

14 See id. (setting forth implications of confusing trade policy with foreign policy); see also Ana Swanson and Jack Ewing, Trump’s National Security Claim for Tariffs Sets Off Crisis at W.T.O., N.Y. TIMES (Aug. 12, 2018), https://www.nytimes.com/2018/08/12/us/politics/trumps- tariffs-foster-crisis-at-the-wto.html [https://perma.cc/JB6N-LM35] (discussing “tremendous stress” trade policies are having on economic system). 15 See Taylor, supra note 8 (reiterating implications of confusing trade policy with foreign policy). 16 See Phil Levy, What Does Trump Really Want on Trade? It’s Time to Take Him Literally, FORBES (July 23, 2018, 6:07 AM), https://www.forbes.com/sites/phillevy/2018/07/23/three-takes- on-trump-trade-policy/#26a70d637ff1 [https://perma.cc/G2YY-CV6J] (contesting notion that Trump administration is pushing for better trade deals and freer trade). 17 See id. (comparing actual agenda with activities alleged in support of said agenda). 18 See Ryan P. Smith, A History of America’s Ever-Shifting Stance on Tariffs: Unpacking a Debate as Old as the United States Itself, SMITHSONIANMAG.COM (Apr. 12, 2018), https://www. smithsonianmag.com/smithsonian-institution/history-american-shifting-position-tariffs- 180968775/ [https://perma.cc/48GG-GFRZ] (outlining historical context and purpose of tariffs used by United States). 19 See Stuart Anderson, The Lawsuit That Could Stop the Steel Tariffs, FORBES (Oct. 9, 2018, 12:04 AM), https://www.forbes.com/sites/stuartanderson/2018/10/09/the-lawsuit-that-could-stop- the-steel-tariffs/#c4c7f074d599 [https://perma.cc/56AE-X2KN] (analyzing history of trade tariffs and offering President Trump’s approach in view of that history). 20 See Andrew Harrer, Tariffs Have Hit Confidence, to Slow US Economy, Says Fed’s Williams, CNBC (Dec. 6, 2018, 8:33 PM), https://www.cnbc.com/2018/12/07/tariffs-have-hit- confidence-to-slow-us-economy-says-feds-williams.html [https://perma.cc/2W3D-WU7L] (emphasizing small economic effect of tariffs but large negative effect on economic investments). 21 See Andrew Walker, World Bank Warns of ‘darkening skies’ for Global Economy, BBC NEWS (Jan. 8, 2019), https://www.bbc.com/news/business-46800098 [https://perma.cc/9F9B- 128 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV trade climate, it is necessary to understand the relevant historical backdrop concerning taxation and international trade, as well as the constitutional framework surrounding the authority to tax.22

II. HISTORY

The historical background surrounding U.S. trade exhibits a prevailing belief in isolationist policies with protectionism as America’s apparent de facto policy, which started with the passage of the Tariff of 1816.23 Despite the infant-nation’s strong opposition to taxation as one of the principle driving forces behind the American Revolution, rapid industrialization and an increase in the country’s scope and size led the government to turn to tariffs for relief.24 Waves of harsh tariffs plagued the U.S. in the early 19th century, leading to an “inevitable . . . tariff conflict . . . along North-South lines,” which occurred as a result of the negative impact of the tariffs on southern farmers.25 The electorate “largely fed up with protectionism” ousted the then-republican President [ADD NAME], who was known for championing protectionism, by electing [ADD NAME], a democrat, who in response cut tariffs.26 Low-tariff policies remained in effect up to the Civil War until “another swing of . . . protectionism” hit the country in the midst of another industrial revolution and another republican- presidency.27 Up until World War II, “tariffs remained . . . central to American Economic policy,” resulting in the most notoriously condemned protectionist measure in U.S. history, the Smoot-Hawley Act.28 The Smoot- Hawley Act sought to improve the conditions of American farmers struggling with competitors and declining prices resulting from the stock

H898] (emphasizing U.S.’s role in global trade and speculating possible economic implications of other super powers). 22 See U.S. CONST. art I., § 8, cl. 1 (citing constitutional basis for ability to tax); see also Smith, supra note 18 (setting forth historical overview of use of taxation in U.S.). 23 See Michael Lind, The Case for American Nationalism, 131 NAT’L INT. 9-20 (May/June 2014), https://nationalinterest.org/files/digital-edition/%5Buser-last-login-raw%5D/Digital%20 Edition%20131.pdf [https://perma.cc/R3PK-HJTH] (commenting on of America’s past practice of nationalism while criticizing libertarian ideology). 24 See Smith, supra note 18 (discussing nation’s history of protectionism). 25 See id. (explaining effect of protectionist policies on early America). 26 See id. (recognizing instances where America rejected ideology of protectionism). 27 See id. (tracing correlation between nation’s position and ideology). 28 See id. (introducing condemned protectionist measure); see also Ben Chu, How We Can Learn from the History of Protectionism, INDEP. (June 6, 2018), https://www.independent .co.uk/news/long_reads/protectionism-history-how-learn-trump-trade-tariff-law-smoot-hawley- a8384216.html [https://perma.cc/C7R5-9XKA] (setting forth previously unsuccessful strategies aimed at safeguarding American trade). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 129 market crash.29 Its implementation resulted in retaliatory measures by foreign nations, who increased tariffs on U.S. products, which incited a trade war with overseas competitors.30 In response to the retaliation, which caused a drastic decline in international trade, President Franklin D. Roosevelt decreased the amount of excessive tariffs by passing the Reciprocal Trade Agreements Act of 1934.31 This Act was the beginning of a legislative trend granting the president certain powers in the realm of trade tariffs.32 This Act also enabled the U.S. to distance itself from past international trade procedures.33 A shift toward freer trade occurred due to the technological advances of the mid-20th century, which eased the swift progression of industry, and the “battle of capitalism vs. communism” during the Cold War, which encouraged “America to extend its hand to allies[.]”34 By the 1980s, the U.S. had completely abandoned protectionism for plans aimed at lowering trade barriers.35 The once staunchly protectionist republican party abandoned its “shield the industry” position, which reestablished republicans as the party of free trade.36 Over the years, the U.S. has made great strides to promote free trade through policies and agreements, such as the World Trade Organization (WTO) and the North American Free Trade Agreement (NAFTA).37 While past administrations have attempted to improve access

29 See Will Kenton, Smoot-Hawley Tariff Act, INVESTOPEDIA, https://www.investopedia.com /terms/s/smoot-hawley-tariff-act.asp (last updated Sept. 5, 2019) [https://perma.cc/Q239-TN46] (justifying enactment of Act). 30 See id. (examining negative implications that resulted from implementation of high tariffs). This Act raised the United States’ already remarkably high tariffs adding double the import tax at the time, from “20% . . . to about 40%.” Id. 31 See Smoot-Hawley Tariff Act, ENCYCLOPEDIA BRITANNICA, https://www.britannica.com /topic/Smoot-Hawley-Tariff-Act (last visited Jan. 14, 2019) [https://perma.cc/8FTR-DFNR] (introducing U.S. trade liberalization and cooperation with foreign governments). 32 See id. (tracing historical context behind expansion of presidential powers over trade). 33 See id. (noting United States’ move towards more liberalized trade); see also Chu, supra note 28 (alleging adoption of tariffs mirror past mistakes). 34 See Chu, supra note 28 (exploring swift in policies); see also Smith, supra note 18 (pointing to global position and ideological stance during said time). 35 See Smith, supra note 18 (citing end to spirit of economic isolationism). 36 See Republican Party on Free Trade, ON THE ISSUES, http://www.ontheissues.org/ Celeb/Republican_Party_Free_Trade.htm (last updated Sept. 11, 2018) [https://perma.cc/4LNK- LE98] (highlighting Republican party platform in 2016). “Trade plays an important role in our economy . . . providing immeasurable benefits to American consumers by lowering prices and improving our standard of living . . . . For that reason, the US must do more to support trade agreements with clear benefits, including job growth, to our economy.” Id. 37 See Smith, supra note 18 (noting economic shift towards freer trade and resulting trade agreements). 130 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV to products and safeguard against unequal and unprofitable prices, the current administration has chosen a different path.38

III. FACTS

A tariff is a tax imposed on a particular imported good; a tariff aims to protect domestic industry by making a foreign good more expensive.39 The framers of the Constitution granted Congress the power to impose tariffs through Article 1, Section 8, Clause 1 (the “Taxing and Spending Clause”).40 Through the Taxing and Spending Clause, the framers delegated the authority “[t]o lay and collect Taxes, Duties, Imposts and Excises” and “[t]o regulate Commerce with foreign Nations” to the legislative branch.41 The Taxing and Spending Clause authorized the central government to generate revenue through taxes and control trade with foreign nations.42 Under the Constitution, Congress reserves the exclusive authority to (1) impose financial penalties in the form of tariffs, and (2) regulate commerce.43 The Taxing and Spending Clause expressly grants Congress direct control over the aforesaid enumerated powers with the authority to levy taxes remaining one of its broadest and most significant powers.44 Accordingly, Congress plays a significant role in controlling trade and

38 See Bertrand, supra note 2 (defining concept of international trade and reviewing history of trade theories). 39 See Jed Graham, What Is a Tariff, Who Pays, and What Is the Purpose Of a Tariff?, INVESTOR’S BUS.DAILY (Nov. 26, 2019), https://www.investors.com/news/economy/what-is-a- tariff/ [https://perma.cc/3KGH-9L4L] (explaining that increasing costs of imported goods can incentivize domestic production). 40 See U.S. CONST. art. I, § 8, cl. 1 (granting Congress power to collect taxes, imposts, duties, and excises); see also Spending Power, LEGAL INFO.INST., CORNELL L. SCH., https://www.law. cornell.edu/wex/spending_power (last visited Nov. 14, 2019) [https://perma.cc/2T49-7P4R] (explaining constitutional authority to “lay and collect taxes”). 41 See U.S. CONST. art. I, § 8, cl. 1 (quoting Congress’s power to tax as established by Constitution); see also Caitlain Devereaux Lewis, Presidential Authority Over Trade: Imposing Tariffs and Duties, CONG.RES.SERVICE 1-2 (Dec. 9, 2016), available at https://fas.org /sgp/crs/misc/R44707.pdf [https://perma.cc/7C2B-GP4E] (pointing to constitutional framework establishing authority to impose tariffs and regulate international trade). 42 See Lewis, supra note 41 (reiterating authority of federal government to implement taxes and regulate international trade). 43 See U.S. CONST. art. I, § 8, cl. 1 (quoting Congress’s taxing power established by Constitution); see also Lewis, supra note 41 (indicating authority of Congress to levy consequences and control commerce). 44 See U.S. CONST. art. I, § 8, cl. 1; see also NCC Staff, Talk of New Tariffs Opens Up an Old Constitutional Issue, NAT’L CONST.CTR. (Dec. 23, 2016), https://constitutioncenter.org/blog/talk- of-new-tariffs-opens-up-an-old-constitutional-issue [https://perma.cc/AN8Z-Q8ED] (highlighting constitutional concerns behind relinquishing congressional authority to further administration’s agenda); Lewis, supra note 41 (citing constitutional authority behind Congress’s tariff powers). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 131 shaping economic policy.45 The Constitution does not expressly provide the president with the authority to modify or impose tariffs.46 Therefore, the president must rely on statutes passed by Congress to impose tariffs.47 Policy changes in recent decades show that Congress has entrusted the executive branch with greater authority by delegating powers to the president that he does not possess through the express language of the Constitution.48 Power over international trade is one of the delegated powers.49 Prior to the mid-1930s, the federal government was primarily responsible for regulating tariff rates.50 In 1934, however, the Reciprocal Tariff Act initiated a snowball of legislation expanding presidential authority.51 The Trade Expansion Act of 1962 was enacted as part of the legislation stemming from the Reciprocal Tariff Act.52 While the Reciprocal Tariff Act granted the president the authority to negotiate unprecedented cuts to tariffs and initiate a series of trade agreements, most importantly, it authorized the president, through section 232 of the Trade Expansion Act (“section 232”), to impose tariffs on the grounds of national security grounds.53 Despite its “fundamental shift away from the . . . protectionist posture[,]” section 232 has recently been utilized to impose unprecedented tariffs intended to protect American industry.54

45 NCC Staff, supra note 44 (recognizing significant role Congress plays in regulating trade); see also Introduction to the U.S. Trade Policy Process, Inst. for Int’l Econ. Pol’y, https://www2.gwu.edu/~iiep/signatureinitiatives/governance/briefs/Introduction.pdf (last visited Feb. 14, 2018) [https://perma.cc/7LRQ-PZMA] (reviewing role of government in formulating and administering trade policy). 46 See Lewis, supra note 41 (noting Constitution does not provide president authority over tariff related actions). 47 See id. (outlining Congress’ delegation of power in regard to international trade). 48 See id. (articulating Congress’s delegation of tariff power to president through legislation). 49 See id. (commenting on recent expansion of presidential power). 50 See Peter Harrell, Congress Must Rein in White House Economic National Security Powers, HILL (June 7, 2018, 8:00 AM), https://thehill.com/opinion/national-security/390958-congress- must-rein-in-white-house-economic-national-security-powers [https://perma.cc/YK73-J5D9] (advocating for Congress to restore control over trade and economic policy). 51 See The Reciprocal Trade Agreement Act of 1934, HIST., ART &ARCHIVES:U.S.HOUSE OF REPRESENTATIVES, https://history.house.gov/Historical-Highlights/1901-1950/The-Reciprocal- Trade-Agreement-Act-of-1934/ (last visited Feb. 15, 2018) [https://perma.cc/4QVP-2TQ3] (explaining expansion of President’s tariff power through Reciprocal Tariff Agreement Act). 52 See Will Kenton, Section 232 of the Trade Expansion Act, INVESTOPEDIA, https://www.investopedia.com/terms/s/section-232-trade-expansion-act.asp (last updated Apr. 27, 2018) [https://perma.cc/8Z4G-JHJR] (recognizing legislation authorizing president to exercise control over facets of trade). 53 See 19 U.S.C. § 1862 (2012) (pointing to where section 232 of Trade Expansion Act is codified in U.S. Code); see also Taylor, supra note 8 (asserting constitutional basis by which president can exercise power over trade). 54 See Bertrand, supra note 2 (discussing transformation of American trade policy); see also Taylor, supra note 8 (pointing to purpose behind administration’s assertion of section 232). 132 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Protectionism encompasses governmental actions and policies that intend to benefit the domestic economy by restricting trade through taxation of foreign goods and/or competitors.55 Historically, this ideology has emerged from the need to protect local industries and jobs from foreign competitors in the light of rapid industrial growth, but in general, it has had a negative economic impact, both international and domestic.56 The most notable of these negative impacts have been several infamous trade wars.57 Traditionally, protectionist policies emerge when one country interprets the trading practices of another country as unfair.58 In response, an affected country imposes a tax on the other country’s imports by focusing on a particular product or industry in order to alter the balance of trade.59 However, if the levying country’s practices are perceived as unlawful and misguided, the imposed-upon country may retaliate through tariffs.60 Retaliatory measures represent the onset of a trade war, which is a common “side effect of protectionism.”61 In the Trump administrations first year in office, unprecedented policies have resulted in billions of dollars in new tariffs.62 These actions have caused member trading nations unprecedented penalties, exposing a pattern of exploiting financial burdens “in a much more forceful and . . . coordinated fashion” than previous administrations.63 This strategy has left critics questioning (1) whether these tactics are necessary to protect national security and ultimately promote free trade, or (2) whether the tactics are simply a stunt to protect U.S. manufacturers from foreign competition.64

55 See James Chen, Trade War, INVESTOPEDIA, https://www.investopedia.com/terms/t/trade- war.asp (last updated Aug. 21, 2019) [https://perma.cc/7VVR-9VFA] (defining “trade war” as isolating domestic business from foreign competition). 56 See id. (discussing “detrimental effects” trade wars have on trading relationships between countries). 57 See id. (stressing that trade wars “grow to affect other sectors” of world economy). 58 See id. (recognizing how trade wars begin). 59 See What Are Common Reasons for Governments to Implement Tariffs?,INVESTOPEDIA, https://www.investopedia.com/ask/answers/041715/what-are-common-reasons-governments- implement-tariffs.asp (last updated July 15, 2019) [https://perma.cc/NQM4-5QDM] (examining “various reasons a government may choose to impose a tariff”). 60 See Chen, supra note 55 (stating successive measures taken by impacted trading nations). 61 See id. (suggesting actions that often signify beginning of trade war). 62 See Taylor, supra note 8 (stressing Trump administration’s heavy reliance on financial penalties); see also Avie Schneider, Trump Sets Tariffs on $200 Billion in Imports from China, NPR BUS. (Sept. 17, 2018, 6:36 PM), https://www.npr.org/2018/09/17/648845578/trump-sets- tariffs-on-200-billion-in-imports-from-china [https://perma.cc/L6RQ-FVH3] (reporting use of tariffs by administration to dissuade China’s unfair trade practices). 63 See Taylor, supra note 8 (describing unprecedented tactics and measures instituted by current administration). 64 See Levy, supra note 16 (encompassing concerns regarding tariff implementation). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 133

Despite the Trump administration’s insistence that they are fighting for freer and fairer trade, “there is no evidence to support the idea that President Trump . . . is pushing for freer trade; in fact, all the evidence points in the opposite direction.”65

IV. ANALYSIS

Despite the Trump administration’s ability to mask fiscal consequences, including (1) hiding behind strong economic and stock market growth, (2) skewing factual reality, (3) suppressing suspicion through false assertions of newfound revenue, and (4) disguising the benefits of some as benefits for all, the President’s confrontational stance is having harmful effects on numerous U.S. companies.66 For many businesses, “the tariffs are escalating costs, creating hardships and magnifying uncertainty[;]”the Institute for Supply Management reported that “the manufacturing index plunged [in December 2018] to its lowest point in more than two years partly because of the tariffs.”67 Mounting expenses have forced an increasing number of importers to decide between raising costs and risking loss of business, or absorbing extra costs and possibly sacrificing profit.68 In response, in order to avoid imposed tariffs on imports, several U.S. companies have decided to move production to foreign nations.69 Despite mounting pressure on domestic manufacturers, the Trump administration has

65 See id. (questioning strategies employed by administration to further trade agenda). 66 See Paul Wiseman, U.S. Companies Paying for Trump Trade Wars, DETROIT NEWS (Jan. 13, 2019, 8:56 PM), https://www.detroitnews.com/story/news/politics/2019/01/13/trump-paying- tariffs/38893859/ [https://perma.cc/RGC3-U6RV] (explaining many are hurting from President’s confrontational trade stance). “The higher costs resulting from Trump’s tariffs have yet to inflict much overall damage . . . [t]he Federal Reserve appears increasingly worried that damage from the trade war will undercut the economy.” Id.; see Ben White, Trump Gets His Big Moment to Boast About Trade War, POLITICO (July 27, 2018), https://www.politico.eu/article/donald-trump-trade- war-gets-his-big-moment-to-boast-about-trade-war/ [https://perma.cc/4J9R-A6Q2] (alleging that battle over trade tariffs could slow economy). 67 See Wiseman, supra note 66 (asserting tariffs tend to hurt American companies by swelling material costs and creating competitive disadvantage). 68 See id. (explaining that tariffs harm companies who buy foreign goods for resale or as component parts). Instead of acting as a tax on foreign companies, tariffs are acting as a tax on U.S. consumers, raising prices and slowing the domestic [and global] economy. Id. 69 See GE to Close New York Plant, Move Work to China, FOX BUS. (Aug. 9, 2017), https://www.foxbusiness.com/markets/ge-to-close-new-york-plant-move-work-to-china [https:// perma.cc/WG6Y-FY95] (exemplifying American company forced to move its operations due to hardship); see also Robert Ferris, Tariffs Will Cost Harley More Than $40 Million in 2018, CNBC (Oct. 23, 2018, 10:15 AM), https://www.cnbc.com/2018/10/23/tariffs-will-cost-harley-davidson- more-than-40-million-in-2018.html [https://perma.cc/QSZ6-PXY8] (providing that Harley Davidson expects to incur $43-$48 million in tariff-related increased costs). 134 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV been consistent with its rhetoric that the tariffs are combating national security concerns.70 Undeterred by widespread criticism, the Trump administration continues to cite national security concerns as justification for the unprecedented penalties against U.S. businesses, shielding themselves with section 232.71 However, a lawsuit filed by the American Institute for International Steel, joined by SIM-TEX and LLC of Burlingame, recently challenged the constitutionality of section 232.72 Accordingly, petitioners argued that the law was being used improperly by delegating trade powers to the executive branch.73 Filing in the U.S. Court of International Trade, the petitioners asserted that Congress retains the power to impose and set tariffs, and any delegation of this law-making ability must contain discretionary limitations of presidential authority.74 However, section 232 lacks the “intelligible principles” that set such limits on the president’s discretion.75 Section 232 broadly defines national security concerns as “encompass[ing]

70 See Glenn Thrush, Trump’s Use of National Security to Impose Tariffs Faces Court Test, N.Y. TIMES (Dec. 19, 2018), https://www.nytimes.com/2018/12/19/us/politics/trump-national- security-tariffs.html [https://perma.cc/T36Y-272M] (examining constitutional challenge against use of national security to levy tariffs). 71 See National Security Tariffs: Section 232, SENATE RPC (June 26, 2018), https://www.rpc.senate.gov/policy-papers/national-security-tariffs-section-232 [https://perma.cc/BN7Z-UDEY] (clarifying this “broad exception allows free trade to coexist with security”). Additionally, this section “can undermine free trade if it is abused by imposing tariffs for reasons other than national security.” Id. 72 See American Inst. for Int’l Steel, Inc. v. United States, 376 F. Supp. 3d 1335, 1337 (Ct. Int’l Trade 2019) (highlighting case challenging constitutionality of administration’s utilization of Section 232); see also William Mauldin, Lawsuit Challenges Trump’s Authority to Impose Tariffs, WALL STREET J., https://www.wsj.com/articles/lawsuit-challenges-trumps-authority-to-impose- tariffs-1530104915 (last updated June 27, 2018, 2:25 PM), [https://perma.cc/X9V8-7X2U] (explaining constitutional challenge to Trump’s tariffs). 73 See American Inst. for Int’l Steel, Inc., 376 F. Supp. 3d at 1337 (explaining petitioners’ arguments); see also Anderson, supra note 19 (offering petitioners argument against administration).

Our argument is that . . . [t]he U.S. Supreme Court has held that Congress cannot delegate its law-making power to the president. So any delegations of authority to impose or set tariffs must contain some “intelligible principle” that sets some limits on the president’s discretion. Section 232 has no such limits, as the president has proven in the case of the current tariffs on steel.

Id. 74 See American Inst. for Int’l Steel, Inc., 376 F. Supp. 3d at 1337 (pointing to petitioner’s argument); see also Delegation of Legislative Power, JUSTIA U.S. L., https://law.justia.com /constitution/us/article-1/04-delegation-legislative-power.html (last visited Jan. 15, 2019) [https://perma.cc/K86J-6PAW] (summarizing nature and scope of permissible delegations by Congress). 75 See Anderson, supra note 19 (emphasizing lack of guidance and limits to presidential power in statute). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 135 anything having to do with the U.S. economy.”76 President Trump’s statements regarding his ability to impose duties, “ma[de] clear that . . . section 232 grants him unfettered power to impose tariffs or other restrictions on imports . . . in any amount, for whatever duration, and for whatever reasons he sees fit,” which is an unconstitutional delegation to the executive branch.77 While Congress may delegate certain taxing powers to regulate foreign commerce, it is only permitted if “the statute contains an intelligible principle on how to proceed.”78 The Court of International Trade ultimately sided with the government as courts are “generally unwilling to draw difficult lines between a constitutional delegation and an unconstitutional one.”79 Moreover, impacted industries are not the only entities critical of the national security excuse.80 Before Trump’s application of section 232, “which allows the president to block imports that he deems threatening to national security,” then-Defense Security James Mattis criticized a report regarding the use of this defense.81 Mattis, in a memorandum to Commerce Secretary, Wilbur Ross, proclaimed that the “DoD [Department of Defense] does not believe that the findings in the reports impact the ability of DoD programs . . . necessary to meet national defense requirements.”82 Jerome Powell, Federal Reserve Chairman, also expressed concerns about potential “serious risks to

76 See id. (highlighting how statute’s broad language may be used by president to meet goals). 77 See id. (elucidating administration’s understanding of presidential power under statute). 78 See Eric Boehm, This Lawsuit Could Sink Trump’s Steel Tariffs, REASON (Dec. 19, 2018, 10:00 AM), https://reason.com/blog/2018/12/19/this-lawsuit-could-sink-trumps-steel-and/ [https:// perma.cc/EV9R-72ZZ] (discussing extent of congressional power and § 232’s unconstitutionality). 79 See Ilya Shapiro, Trevor Burrus, and William Yeatman, American Institute for International Steel, Inc. v. United States, CATO INST. (May 17, 2019) https://www.cato.org/publications/legal- briefs/american-institute-international-steel-inc-v-united-states [https://perma.cc/5A2S-79C6] (summarizing case progress and party arguments). It is important to note that, “[t]he plaintiffs decided to appeal the case directly to the Supreme Court . . . [because] [n]ot only are the steel tariffs causing ongoing harm to the economy, but only the Supreme Court can ultimately decide the issues in this case.” Id. 80 See John Brinkley, Trump’s National Security Tariffs Have Nothing to Do with National Security, FORBES (Mar. 12, 2018, 11:48 AM), https://www.forbes.com/sites/johnbrinkley/2018/03/ 12/trumps-national-security-tariffs-have-nothing-to-do-with-national-security/#4c4923ae706c [https://perma.cc/UV3D-SAF2] (acknowledging national security concerns validating § 232 have no legal justification). 81 See id. (pointing to U.S. military steel requirements and how §232 findings do not match DoD reports). 82 See id. (providing rational for § 232 inapplicability). James Mattis explained that “[t]he U.S. military requirements for steel and aluminum each represent only about 3% of U.S. production,” and it does not meet the necessary national defense requirements. Id.; see Annie Lowrey, Does Trump Even Understand How Tariffs Work?, ATLANTIC (Dec. 6, 2018), https://www.theatlantic.com/ideas/archive/2018/12/the-fog-of-trumps-trade-war/577495/ [https:// perma.cc/8MAH-HTZD] (reiterating Mattis’ response that tariffs are not necessary for country’s defense). 136 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV the U.S. and global economy” due to the tariff policies.83 Under testimony, Powell advocated for the eventual removal of the tariffs, explaining that escalating tariffs have already stunted business growth in the United States.84 In furtherance, Powell and other officials acknowledged that U.S. businesses have deserted plans to expand as a result of rising costs and amplifying uncertainties.85 Additionally, business groups and agriculture exporters “expressed worries that Trump’s tariffs . . . and the retaliation . . . could cause widespread economic harm,” while lawmakers “warned . . . about the damage they had already seen inflicted on businesses in their states even as the economy expands and unemployment falls . . . .”86 Powell explained that “higher tariffs across a broad range of goods and services that remain that way for a long time . . . will be bad for [the United States’] economy and other economies, too.”87 John Williams, the President of the Federal Reserve Bank of New York, elucidated that the higher tariffs have a relatively small effect on the economy, “but have hurt confidence and some business investments,” in turn, hurting U.S. employment and economic growth.88 In support, Powell described “‘hearing a rising level of concern’ from U.S. firms about the impact of Trump’s tariffs, which could trigger several ‘very challenging’ economic situations.”89 Coupled with concerns regarding the impacts to U.S. businesses, there is intensifying pressure from global economists warning of the economic consequences.90 Despite the administration’s promise of

83 See Sylvan Lane, Fed Chief Lays Out Risks of Trade War, HILL (July 17, 2018, 2:32 PM), https://thehill.com/policy/finance/397470-fed-chief-lays-out-risks-of-trade-war [https://perma.cc/A6V9-4KPM] (evidencing criticism from other members of Federal Reserve). 84 See id. (recognizing Powell’s defense of our global trading system). 85 See id. (pointing to damages already inflicted on U.S. businesses). 86 See id. (cautioning widespread economic harm). 87 See id. (characterizing long-lasting tariffs as overtly impactful). 88 See Harrer, supra note 20 (providing additional ways tariffs hurt U.S. economy). 89 See Lane, supra note 83 (acknowledging increasing concerns of U.S. businesses); see also Kai Ryssdal, Fed Chair Jay Powell: We’re “Independent of Political Considerations”, MARKETPLACE (July 12, 2018), https://www.marketplace.org/2018/07/12/economy/powell- transcript [https://perma.cc/LM2X-BX4T] (providing context of Powell’s statements); Kevin Kelleher, Fed Chair Says He’s Hearing ‘a Rising Chorus of Concerns’ from Companies About Trump’s Trade Wars, FORTUNE (Sept. 26, 2018), http://fortune.com/2018/09/26/fed-chair-powell- trump-trade-wars/ [https://perma.cc/B5KM-3E9W] (stressing increasing concern of trade war arising from unprecedented high tariffs). Powell noted that “[w]e’ve been hearing a rising chorus of concerns from businesses all over the country about disruption of supply chains, materials cost increases.” Kelleher, supra note 89. “[T]ariffs that remain in place for a long time, a more protectionist world, that’s going to be bad for the U.S. economy.” Id. 90 See Jeff Kearns, Economists Say Trump’s Tariffs Are Unfavorable for U.S. Growth, BLOOMBERG (Aug. 20, 2018, 12:01 AM), https://www.bloomberg.com/news/articles/2018-08- 20/economists-say-trump-s-tariffs-are-unfavorable-for-u-s-growth [https://perma.cc/KM3W- AYVW] (recognizing consequences of implemented and threatened trade policies). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 137 economic prosperity, economists say that the president is wrong.91 Economists instead assert that tariffs “can cause higher prices, reduce trade . . . and hurt overall economic growth.”92 Economists also contend that foreign companies sell fewer goods and services to such taxing countries.93 The Tax Foundation found that economists largely align with the notion that trade barriers reduce the level of economic input and output, with “[h]istorical evidence show[ing] that tariffs raise prices and reduce available quantities of goods and services for U.S. businesses and consumers[.]”94 Accordingly, over 1,100 economists signed an open letter to President Trump and to Congress, urging that the two reconsider the tariff

The National Association for Business Economics survey showed 91 percent of respondents said current tariffs and threats of more to come were having “unfavorable consequential impacts” on the U.S. economy . . . [a]bout two-thirds saw negative effects if the U.S. withdraws from . . . [NATO] with Mexico and Canada.

Id.; see Tariff Effects Broaden Across U.S., Wage Growth Higher: Fed, REUTERS (Dec. 5, 2018, 2:22 PM), https://www.reuters.com/article/us-usa-fed-beigebook/tariff-effects-broaden-across-u- s-wage-growth-higher-fed-idUSKBN1O42HP [https://perma.cc/U56J-EU49] (reporting “tariff- induced cost increases have spread . . . from manufacturers and contractors to retailers and restaurants”). 91 See Josh Boak, AP FACT CHECK: Economists Say Trump Off on Tariffs’ Impact, AP NEWS (Dec. 5, 2018), https://apnews.com/c22c8a9cb69a44f194ca6a1360274ebc [https://perma.cc/ W4JU-S43F] (citing study explaining that “[n]ot a single economist surveyed said the United States would be wealthier”); see also Louis Jacobson, Donald Trump Says Tariffs Will Make American Rich Again. Economists Disagree, POLITIFACT (Dec. 17, 2018, 12:00 PM), https://www.politifact .com/truth-o-meter/article/2018/dec/17/donald-trump-says-tariffs-will-make-america-rich-a/ [https://perma.cc/K3UG-85HM] (contesting belief that tariffs “max out our economic power”). 92 See Boak, supra note 91 (explaining costs of taxes borne by U.S. consumers and businesses in form of higher prices). 93 See id. (highlighting how foreign countries and companies are also impacted). 94 Erica York, Tracking the Economic Impact of U.S. Tariffs and Retaliatory Actions, TAX FOUND., https://taxfoundation.org/tracker-economic-impact-tariffs/ (last updated Dec. 16, 2019) [https://perma.cc/J7CZ-UXZJ] (analyzing impact through Tax Foundation Taxes and Growth Model). Economic analysts studied the data surrounding the imposed, the threatened, and the retaliatory tariffs on the United States economy, finding:

[T]he tariffs . . . would reduce long-run GDP by 0.26 percent ($64.11 billion) and wages by 0.16 percent and eliminate 198,700 full-time equivalent jobs. If . . . [Trump] acts on outstanding threats to levy additional tariffs, GDP would fall by an additional 0.24 percent ($59.40 billion), resulting in 0.17 percent lower wages and 184,200 fewer . . . jobs. Other countries have also announced intentions to impose tariffs on U.S. exports. If . . . imposed, we estimate . . . GDP would fall another 0.05 percent ($13.34 billion) and cost an additional 41,300 . . . jobs. If all tariffs announced . . . were fully imposed, U.S. GDP would fall by 0.55 percent ($136.86 billion) in the long run . . . . Wages would fall by 0.37 percent and employment would fall by 424,200.

Id. 138 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV policy, “an echo of the letter signed by 1,028 economists in 1930 opposing the Smoot-Hawley tariff.”95 Experts maintain that they have been advocating for free trade for centuries, explaining that interfering with markets is simply a misdirection of resources that force individuals to focus their time and energy on other ways to accomplish the same thing with slightly different, but less expensive materials.96 Moreover, allies have also expressed their frustrations with the administration’s use of national security.97 In 1995, the U.S. assisted in forming the World Trade Organization (W.T.O.) as an aid to resolve trade disputes and to establish rules that keep global commerce flowing.98 Today, “[t]here are those who would go so far to say that the U.S. has almost effectively withdrawn from the W.T.O. by engaging in all the unilateral tariffs.”99 For instance, Canada, Mexico, and the European Union claim that their exports, particularly their metals, pose no threats to the national security of the U.S., focusing their argument specifically on “whether the United States’. . . sweeping steel and aluminum tariffs are necessary to protect national security or [on] whether they are simply a ruse to protect American metal manufacturers from global competition.”100 The President of the European Commission echoed the

95 See Art Carden, 1,100+ Economists: No Trump Tariffs, FORBES (May 4, 2018, 2:30 PM), https://www.forbes.com/sites/artcarden/2018/05/04/1100-economists-no-trump-tariffs/#339cb00 e40fb [https://perma.cc/FX4B-L87C] (cautioning “tariffs are classic examples of policies that hurt when they’re alleged to help.”). 96 See id. (explaining “when we interfere with markets we misdirect our resources”). “In the absence of tariffs, people would likely discover new, cost-reducing or output-increasing ways to use steel.” Id. 97 See Swanson, supra note 14 (acknowledging “Trump’s embrace of sweeping tariffs has frustrated allies, lawmakers and businesses”). 98 See id. (noting that tariffs could hobble W.T.O.). 99 See id. (stressing tension stemming from tariff policy); see also Ryan Bort, The 4 Biggest Consequences of Trump’s Disastrous Tariff Plan, ROLLING STONE (June 1, 2018), https://www. rollingstone.com/politics/politics-news/the-4-biggest-consequences-of-trumps-disastrous-tariff- plan-628305/ [https://perma.cc/7YHS-NMK7] (observing influence over other established trade agreements). In addition, the imposition of higher tariffs has thrown “the future of America’s participation in the North Atlantic Free Trade Agreement . . . into flux.” Id.

[Despite promoting its renegotiation], no progress has been made . . . [and] [j]udging by . . . [Trump’s] similarly unpopular decisions to remove the U.S. from the Paris Accord and the Iran nuclear deal, it’s now a very real possibility that the president withdraws the U.S. from NAFTA if the trade war he just created were to get worse.

Id. 100 See Swanson, supra note 14 (discussing tariff issues); see also Richard Partington, World Bank Warns Trade Tensions Could Cause 2008-Level Crisis, GUARDIAN (June 5, 2018), https://www.theguardian.com/business/2018/jun/05/world-bank-warns-us-trade-war-could-cause- 2008-level-crisis [https://perma.cc/7DUY-ALAD] (articulating allied nations stern opposition to administrations national security assertion). 2020] MORE TARIFFS, MORE PROTECTION[ISM] 139 feeling, stating that the implementation of such measures “is protectionism, pure and simple.”101 The Canadian Prime Minister asserted that it “is simply ridiculous to view any trade with Canada as a national security threat” to the US in response to the close ally being named a danger to U.S. security.102 The World Bank warns that damaging tension could have global trading consequences equivalent to the financial crisis of 2008 explaining that “[i]nternational commerce is already weakening” and “conflict over trade . . . is one of the major risks.”103 Calculations show a 2.5% effect on global trade as a result of the tariffs that were imposed last year, which could double if the U.S. implements additional tariffs on partner trading nations.104 In addition, the impact on America’s longstanding allied relationships is overwhelmingly unsettling.105 With Canada declaring “that the tariffs mark ‘a turning point in the Canada-U.S. relationship,’” Germany claiming it may be the “end of the German-American trade relationship,” and Mexico deeply condemning the decision of the U.S., economists warn of severe consequences for world trade and economic growth, as well as the realistic threat to political consensus over trade.106 Some of the most powerful lobby groups in the United States claim “[i]t is now also increasingly clear that the way the . . . tariffs have been used will result in retaliatory tariffs from our . . . closest allies, and that retaliation will have serious negative economic impacts on the United States.”107

101 See Bort, supra note 99 (condemning U.S. for use of protectionist policies). 102 See id. (contesting contention that trading with Canada is danger to security of United States). 103 See Walker, supra note 21 (expressing concern over risk of protectionism depressing economic activity); see also Partington, supra note 100 (stressing “threat of trade protectionism is a real risk”). “Anything that puts sand in the wheels of global trade is a risk to global growth.” Id. 104 See Walker, supra note 21 (proffering potential impacts of implementing further tariffs). 105 See Bort, supra note 99 (discussing impact on alliances). Former House Speaker Paul Ryan stated, “[i]nstead of addressing the real problems in the international trade . . . today’s action targets America’s allies when we should be working with them . . . [t]here are better ways to help American workers and consumers.” Id. See U.S. Import Tariffs: Why the Cost Will Be High, WHARTON (June 5, 2018), http://knowledge.wharton.upenn.edu/article/the-impact-of-tariffs-on- us-allies/ [https://perma.cc/T2UJ-7M2J] (examining U.S. allies understanding of tariffs). Explaining that U.S. allies “are . . . outraged . . . very upset . . . and . . . see it as a rejection of longstanding relationships.” Id. 106 See Bort, supra note 99 (quoting leaders of allied nations condemning U.S. move instituting tariffs). 107 See Dominic Rushe and Richard Partington, Biggest US Trade Groups Warn Trump of ‘Serious Negative Impacts’ of Tariff Plan, GUARDIAN (June 26, 2018), https://www.theguardian .com/politics/2018/jun/26/philip-hammond-warns-trump-against-triggering-full-trade-war [https://perma.cc/K4SJ-97Y5] (reiterating that rivalry with our close allies will seriously harm U.S. economy). 140 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

V. CONCLUSION

The Trump administration has adamantly stated that their policies on international trade will make America wealthy again, which suggests that tariffs are the road to riches. This rationalization, coupled with the questionable delegation of historically held congressional authority, has enabled the administration to proceed with their unparalleled approach of placing heavy reliance on tariffs. This approach has (1) unearthed a plethora of present and impending domestic and foreign economic implications, (2) commenced legal action incited by political opposition and constitutionality concerns, and (3) prompted condemnation by essential partner-trading nations. Yet, there is no indication that the administration has relinquished their untenable position. In light of the administration’s unprecedented use of section 232, several members of Congress have introduced a bill that would more tightly define “national security.” In addition, this new bill would require congressional approval before such tariffs could take effect, as well as transfer authority from the Commerce Department to the Defense Department with regard to national security investigations. Moreover, another congressional member has initiated the drafting of a bill to also circumscribe the president’s authority under the statute. Although President Trump will likely veto any bill that attempts to restrict his use of section 232, the introduction of these bills demonstrates positive steps toward restraining the Trump administration’s reckless use of national security as a pretext to impose tariffs. Notwithstanding these issues, trade plays an insurmountable role in our economy. It enables vital competition and innovation, provides for immeasurable consumer benefits in market systems, and encourages global freedom and greater opportunities. Trade, as the bedrock of the United States economic system, and the anchor to international political relations, must run freely and smoothly, in which protectionist policies have no place.

Jessica A. Mehaylo COMBATTING SEXUAL MISCONDUCT: AMERICAN HIGHER EDUCATION DURING THE #METOO ERA

“Bravery is contagious. Indeed, that’s a driving force behind the #MeToo movement. And you sharing your story is going to have a lasting, positive impact on so many survivors in our country. We owe you a debt of gratitude for that, Doctor.” - Senator Patrick Leahy (D-VT)1

I. INTRODUCTION

Sexual misconduct occurs throughout the world and affects people in all industries and aspects of life; for instance, in October 2017, The New Yorker published Ronan Farrow’s article about the numerous sexual misconduct allegations against Harvey Weinstein, a previously renowned movie producer in Hollywood.2 The article details the accounts of several disturbing experiences women had with Weinstein, and how he paid them hush money to prevent anyone from finding out about the abuse.3 Their accounts describe his horrific conduct that ranged from inappropriate and explicit comments to sexual misconduct, which prompted sexual assault and

1 See Cady Drell, 9 Powerful Quotes from Christine Blasey Ford’s Hearing, YAHOO (Sept. 27, 2018), https://www.yahoo.com/lifestyle/9-powerful-quotes-christine-blasey-162500183.html [https:/perma.cc/SH4H-653X] (highlighting quotes from Ford’s testimony regarding sexual assault allegations against now-Supreme Court Justice, Brett Kavanaugh). During Kavanaugh’s confirmation hearing, Dr. Christine Blasey Ford testified to the details of when Kavanaugh sexually assaulted her in college. Id. Dr. Ford’s testimony highlighted how the country handles and disregards allegations of sexual misconduct even at the height of the #MeToo movement. Id. Even in such a national spotlight, Ford was doubted and asked how certain she was that her attacker was indeed Kavanaugh. Id. 2 See Ronan Farrow, From Aggressive Overtures to Sexual Assault: Harvey Weinstein’s Accusers Tell Their Stories, NEW YORKER (Oct. 10, 2017, 10:47 AM), https://www.newyorker. com/news/news-desk/from-aggressive-overtures-to-sexual-assault-harvey-weinsteins-accusers- tell-their-stories [https://perma.cc/H5P4-7GQK] (exposing Harvey Weinstein’s sexual assault scandal). Farrow underwent a ten-month investigation in which he was told by thirteen women that Weinstein had sexually harassed or assaulted them and that they were all afraid of retaliation by the movie producer. Id. 3 See Farrow, supra note 2 (detailing accounts of Weinstein’s victims). The women described to Farrow what they had endured, how they were paid by Weinstein in exchange for their silence about the incidents, and that Weinstein’s inappropriate behavior was known throughout Hollywood. Id. Victims also expressed fears of losing job opportunities and potentially being involved in legal actions brought by Weinstein. Id. “[A] woman who worked with Weinstein, explained her reluctance to be identified. ‘He drags your name through the mud, and he’ll come after you hard with his legal team.’” Id. 142 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV rape charges to be brought against him, and ultimately led to his subsequent arrest.4 The allegations against Weinstein motivated more men and women in Hollywood to come forward about their sexual misconduct experiences, leading several companies to take action against other prominent figures in the entertainment industry.5 In an attempt to mitigate the issue, certain companies and legislatures have taken action, and a legal defense fund, Time’s Up, has been created; however, there is much more to be done to combat workplace sexual misconduct throughout the country.6 The #MeToo movement also seems to have encouraged more victims of sexual misconduct in educational institutions, sports, and politics to come forward.7 It has sparked a national conversation about sexual

4 See id. (recounting actresses Asia Argento’s and Mira Sorvino’s allegations against Weinstein); see also Benjamin Mueller and Alan Feuer, Arrested on Rape Charges, Weinstein Posts $1 Million Bail, N.Y. TIMES (May 25, 2018), https://www.nytimes.com/2018/05/25/ nyregion/ harvey-weinstein-arrested.html?module=inline [https://perma.cc/9KHW-6MAG] (discussing Weinstein’s arrest for raping and forcing women to have oral sex with him). 5 See Josh Rottenberg and Ryan Faughnder, One Year After the Harvey Weinstein Scandal Broke, #MeToo Has Become a Battle for Hearts and Minds, L.A. TIMES (Oct. 4, 2018, 5:00 AM), http://www.latimes.com/entertainment/movies/la-et-mn-harvey-weinstein-one-year-later- 20181004-story.html [https://perma.cc/Z6WB-MVUC] (stating allegations against prominent Hollywood men such as Kevin Spacey, Brett Ratner, and Les Moonves). 6 See Rottenberg and Faughnder, supra note 5 (noting cultural shift surrounding sexual harassment); see also Vin Gurrieri, Cali. #MeToo Bills May Help Harassment Suits Reach Juries, LAW360 (Sept. 17, 2018, 6:41 PM), https://www.law360.com/articles/1082219 [https://perma.cc /H2CP-FBNM] (detailing California workplace harassment legislation); see also S.2203, 190th Leg. (Mass. 2017–2018), available at https://malegislature.gov/Bills/190/S2203 [https://perma.cc /5PCW-JRMW] (illustrating bill’s trajectory); Stephanie Murray, State Senate Passes Sexual Violence Bill Aimed at Protecting Students, TELEGRAM.COM, https://www.telegram.com/news/ 20170725/state-senate-passes-sexual-violence-bill-aimed-at-protecting-students (last updated July 25, 2017, 5:49 PM) [https://perma.cc/F8NH-T3KC] (explaining objectives of proposed Massachusetts bill). 7 See United States v. Nassar, No. 17-2490, 2018 U.S. App. LEXIS 23808, at *10 (6th Cir. Aug. 22, 2018) (affirming lower court sentence for Michigan State doctor who sexually abused student-athletes for twenty years); Vin Guirrieri, #MeToo Push May Not Translate To More Harassment Suits, LAW360 (Jan. 24, 2018, 9:52 PM), https://www.law360.com/articles/ 1005257?scroll=1 [https://perma.cc/H2CP-FBNM] (highlighting reasons why victims are reluctant to come forward); Paula Lavigne and Nicole Noren, OTL: Michigan State Secrets Extend Far Beyond Larry Nassar Case, ESPN (Jan. 25, 2018), http://www.espn.com/espn/story/_/id /22214566/pattern-denial-inaction-information-suppression-michigan-state-goes-larry-nassar-case -espn [https://perma.cc/8PCA-FXR6] (exposing widespread sexual assault cover-ups at Michigan State University); Tim Arango, 5 Women Sue U.S.C., Alleging Sexual Abuse by Campus Doctor, N.Y. TIMES (May 21, 2018), https://www.nytimes.com/2018/05/21/us/usc-doctor-abuse-lawsuits .html [https://perma.cc/857R-TWCL] (reporting multiple sexual abuse lawsuits against University of Southern California’s former gynecologist); Catie Edmondson, More Than 100 Former Ohio State Students Allege Sexual Misconduct, N.Y. TIMES, (July 20, 2018), https://www.nytimes .com/2018/07/20/us/politics/sexual-misconduct-ohio-state.html [https://perma.cc/2THH-KZR4] (detailing allegations by “[m]ore than 100 former [male] Ohio State University students” against 2020] COMBATTING SEXUAL MISCONDUCT 143 misconduct in America, specifically shedding light on the fact that it is not just a Hollywood or workplace issue, but is also prevalent in other realms of society, including the current presidency.8 Notwithstanding where sexual misconduct occurs, similar barriers exist to discourage people from coming forward such as financial concerns, fear of retaliation or not being believed, and lack of resources and training to deal with claims of misconduct.9 Not only are sexual assault and abuse survivors still facing the same challenges of coming forward, others who are aware of the crimes are often hesitant to report it, or try to cover it up entirely.10 The most publicized examples of such bystander behavior includes the Catholic Church priests’ child sex abuse scandals and many outrageous incidents of sexual assault in schools and prominent institutions throughout the country.11 This Note focuses on the recent headlines involving sexual misconduct on college campuses and the ways such claims are handled.12

“team doctor and professor at the school”); Maeve Reston, ‘I Will Never Forget:’ Christine Blasey Ford Recounts Her Trauma in Raw Testimony, CNN (Sept. 27, 2018, 7:06 PM), https://www. cnn.com/2018/09/27/politics/christine-blasey-ford-raw-testimony/ [https://perma.cc/LQ9F-6E6L] (recounting Ford’s testimony detailing sexual assault committed by Supreme Court Justice, Brett Kavanaugh). 8 See Meghan Keneally, List of Trump’s Accusers and Their Allegations of Sexual Misconduct, ABC NEWS (June 25, 2019, 12:11 PM), https://abcnews.go.com/Politics/list-trumps-accusers- allegations-sexual-misconduct/story?id=51956410 [https://perma.cc/VD3N-MZSJ] (discussing accounts of seventeen women who have accused President Trump of sexual assault); see generally Farrow, supra note 2 & sources cited supra note 7 (showing prevalence of sexual assault in all sectors of life). 9 See Guirrieri, supra note 7 (discussing how #MeToo movement brings heightened awareness, but highlighting difficulties victims still face). 10 See Dan Murphy, Former Michigan State President Charged with Lying to Police in Larry Nassar Investigation, ESPN (Nov. 20, 2018), http://www.espn.com/college-sports/story/_/id/ 25333431/lou-anna-k-simon-former-michigan-state-president-charged-lying-police-larry-nassar- investigation [https://perma.cc/GHR5-ZNER] (reporting felony and misdemeanor charges against university president for knowingly making false statements to police). Michigan State officials were repeatedly accused of knowing about Nassar’s continuing crimes and not taking proper steps to investigate complaints. Id. 11 See sources cited supra note 7 and accompanying text (displaying examples of sexual misconduct on college campuses); see also Des Bieler, Two Former Penn State Officials Plead Guilty to Child Endangerment in Sandusky Case, WASH.POST (Mar. 13, 2017, 10:14 PM), https://www.washingtonpost.com/news/early-lead/wp/2017/03/13/two-former-penn-state- officials-plead-guilty-to-child-endangerment-in-sandusky-case/ [https://perma.cc/Z56Y-7N3B] (describing former Penn State officials’ child endangerment charges for inaction regarding Sandusky’s child sexual abuse); Michael Rezendes, Church Allowed Abuse by Priest for Years, BOSTON GLOBE (Jan. 6, 2002, 5:50 PM), https://www.bostonglobe.com/news/special- reports/2002/01/06/church-allowed-abuse-priest-for-years/cSHfGkTIrAT25qKGvBuDNM/story. html [https://perma.cc/5JSR-XLEA] (exposing knowledge and cover-ups of child sexual abuse throughout Catholic Church). 12 See infra Parts II & IV (detailing recent sexual misconduct allegations in schools and how to address issue). 144 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

This Note will analyze the current standards and policies put in place to help victims of sexual misconduct on college campuses.13 Further, this Note provides suggestions on how rules and guidelines can be improved and discusses other measures that should be taken to encourage victims to come forward and to ensure safer campus environments for future generations of students.14 Although the recent #MeToo movement brings the pervasiveness of sexual misconduct in America to the forefront, much more needs to be done to end this public health epidemic in higher education.15

II. FACTS

A. Sexual Misconduct Definitions and Statistics

Sexual assault is defined by the Advocates for Human Rights as “nonconsensual sexual contact that is obtained through coercion or the use or threat of force,” and sexual contact is defined as molestation, fondling, attempted rape, rape, and “other sexually abusive acts.”16 The United States Department of Education also have their own definitions of sexual violence, sexual harassment, and sexual abuse.17 The defining characteristic of sexual

13 See infra Parts II & III (discussing current sexual assault policies and legislation, and history of sexual assault reform). 14 See infra Part IV (suggesting multiple ways to address sexual misconduct in colleges and universities). 15 See Kimberly A. Hamlin, What Happens When Women Talk to Congress About Sex, WASH. POST (Sept. 25, 2018, 6:00 AM), https://www.washingtonpost.com/outlook/2018/09/25/what- happens-when-women-talk-congress-about-sex/?noredirect=on [https://perma.cc/QG68-DJE7] (analyzing Congress’s responses to women’s allegations of sexual misconduct and struggles to get legislation passed); see also Rottenberg and Faughnder, supra note 5 (emphasizing need for change throughout country); Sarah Edwards, The Case in Favor of OCR’s Tougher Title IX Policies: Pushing Back Against the Pushback, 23 DUKE J. GENDER L. & POL’Y 121, 127 (2015) (suggesting ways to strengthen Title IX policies and improve reporting standards). 16 See Types of Sexual Contact, ADVOCATES FOR HUM.RTS., http://www.stopvaw.org/ Types_of_Sexual_Contact (last updated Feb. 1, 2006) [https://perma.cc/ DST4-TEWG] (stating organization’s definition of sexual contact); What Is Sexual Assault, ADVOCATES FOR HUM.RTS., http://www.stopvaw.org/What_is_Sexual_Assault (last updated June 2019) [https://perma.cc /27YC-4XXY] (stating organization’s definitions of sexual assault and sexual contact). The Advocates for Human Rights defines sexual assault as a type of sexual violence. What Is Sexual Assault, supra note 16. There is a distinction between sexual assault and sexual harassment as the latter does not always include misconduct in both forms. Id. “The Rape, Abuse & Incest National Network (RAINN) defines sexual violence as ‘an all-encompassing, non-legal term that refers to crimes like sexual assault, rape, and sexual abuse.’” Id. Where used in this Note, sexual misconduct refers to all types of sexual assault, sexual harassment, and sexual violence including sexual assault as defined by the Advocates for Human Rights. Id. 17 See Erin O’Neill, Comment, When Winning Comes First, Students and the Community Lose: Handling Student-Athlete Sexual Assault Scandals, 25 SPORTS LAW J. 199, 200 (2018) (discussing sexual violence on campuses involving student-athletes). 2020] COMBATTING SEXUAL MISCONDUCT 145 assault is that its unwanted nature and certain conduct may be unwanted and non-consensual in one instance, but wanted and consensual in another.18 Sexual assault can be committed by force or by coercion through “intimidation, manipulation, threats of negative treatment, and blackmail.”19 Sexual assault often occurs in relationships of trust such as in the home by a relative or intimate partner, in a work environment, in the community, and/or in institutional settings by a teacher, doctor, or coach.20 Recent studies show the grave statistics regarding sexual assault in America: one out of every six women and one out of every thirty-three men is or will be a victim of attempted rape or rape in their lifetime.21 However, these

“Sexual Violence” is defined by the United States Department of Education Office for Civil Rights (OCR) as “physical sexual acts perpetrated against a person’s will or where a person is incapable of giving consent due to the victim’s use of drugs or alcohol.” Sexual violence encompasses multiple acts, “including rape, sexual assault, sexual battery, and sexual coercion.”

Id.; see also Sex-based Harassment,U.S.DEP’T OF EDUC. https://www2.ed.gov/about/offices /list/ocr/frontpage/pro-students/issues/sex-issue01.html (last visited Dec. 30, 2019) [https://perma .cc/N2L5-2EGN] (defining terms related to sexual violence as interpreted by federal government). 18 See Types of Sexual Contact, supra note 16 (describing elements of sexual assault). 19 See What Is Sexual Assault?, supra note 16 (noting how sexual assault can be committed). 20 See id. (stating where and by whom sexual assault usually occurs); see also Sexual Abuse, DURSO LAW, http://dursolaw.com/abuse/ (last visited Nov. 11, 2019) [https://perma.cc/BPL5- F9CA] (informing readers about prevalence of sexual abuse in institutional settings). “[T]he average institutional abuser has more victims because he has better access and opportunities.” Sexual Abuse, supra note 20. 21 See Data Collection: National Crime Victimization Survey (NCVS), BUREAU OF JUST. STATISTICS (2018), https://www.bjs.gov/index.cfm?ty=dcdetail&iid=245 [https://perma.cc/55ZB- GDE7] (publishing results from studies); see also Victims of Sexual Violence: Statistics, RAINN, https://www.rainn.org/statistics/victims-sexual-violence (last visited Nov. 11, 2019) [https://perma .cc/93XA-NCJA] (summarizing statistics from 2017 Bureau of Justice survey); Conducting Research in the Field of Criminal Justice: Criminal Justice Statistics, LIU POST, https://liu. cwp.libguides.com/c.php?g=45782&p=6531063 (last updated Nov. 15, 2019, 1:54 PM) [https:// perma.cc/6BPW-3LXZ] (describing methodology of National Crime Victimization Survey).

[D]ata . . . are obtained from a nationally representative sample of about 135,000 households, composed of nearly 225,000 persons, on the frequency, characteristics, and consequences of criminal victimization in the United States. The NCVS collects information on nonfatal personal crimes, [such as rape or sexual assault] . . . Survey respondents provide information about themselves (e.g., age, sex, race and Hispanic origin, marital status, education level, and income) and whether they experienced a victimization. For each victimization incident, the NCVS collects information about the offender, . . . characteristics of the crime, . . . whether the crime was reported to police, reasons the crime was or was not reported, and victim experiences with the criminal justice system.

Conducting Research in the Field of Criminal Justice: Criminal Justice Statistics, supra note 21. 146 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV numbers may be significantly undervalued due to a lack of reporting, which makes the statistics all the more troubling.22

B. Title IX

Title IX states, “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance . . . .”23 This discrimination includes all forms of sexual assault that occur on-campus or anywhere there is a connection with the educational institution, such as at athletic events or other events represented by the school.24 Any school, from kindergarten to college, that receives federal government funding must adhere to Title IX and must implement “policies prohibiting sexual harassment and assault, prompt and thorough investigations of complaints, training of staff, and the assignment of a person who oversees implementation of the law,” known as a Title IX coordinator.25

22 See The Criminal Justice System: Statistics, RAINN, https://www.rainn.org/statistics/ criminal-justice-system (last visited Nov. 11, 2019) [https://perma.cc/URV9-KH7J] (detailing Department of Justice’s reporting on stark statistics of non-reported sexual assaults). “Only 230 out of every 1,000 sexual assaults are reported to police. That means about 3 out of 4 go unreported.” Id.

Of the sexual violence crimes not reported to police from 2005-2010, the victim gave the following reasons for not reporting: 20% feared retaliation[;] 13% believed the police would not do anything to help[;] 13% believed it was a personal matter[;] 8% reported to a different official[;] 8% believed it was not important enough to report[;] 7% did not want to get the perpetrator in trouble[;] 2% believed the police could not do anything to help[; and] 30% gave another reason, or did not cite one reason.

Id. 23 See 20 U.S.C. § 1681(a) (2019) (introducing Title IX components and definitions). 24 See id. § 1681(c) (defining educational institution).

For purposes of this title an educational institution means any public or private preschool, elementary, or secondary school, or any institution of vocational, professional, or higher education, except that in the case of an educational institution composed of more than one school, college, or department which are administratively separate units, such term means each such school, college, or department.

Id.; see Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 644 (1999) (reasoning schools may be liable even if they are not engaged “in harassment directly”). 25 See Davis, 526 U.S. at 646 (explaining student-on-student sexual misconduct occurring during school hours, on school grounds, and in classrooms). Title IX is treated as legislation enacted pursuant to Congress’s spending power. Id. at 640. “When Congress acts pursuant to its spending power, it generates legislation ‘much in the nature of a contract: in return for federal funds, the States agree to comply with federally imposed conditions.’” Id. (quoting Pennhurst State 2020] COMBATTING SEXUAL MISCONDUCT 147

The Title IX compliance standards represent a professional standard of care for schools and educational environments, and the requirements set forth are the minimum requirements for schools.26 Furthermore, regardless of whether a school receives federal funding, students can initiate an investigation through the Department of Education’s Office for Civil Rights (“OCR”), a federal agency tasked with enforcing Title IX.27 In order to

Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981)). See O’Neill, supra note 17, at 202 (explaining Title IX’s objective to prevent sexual violence at school-sponsored events on or off campus).

A school violates Title IX’s sexual violence provisions when two conditions are met:

(1) the alleged conduct is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s educational program, i.e. creates a hostile environment; and (2) the school, upon notice, fails to take prompt and effective steps reasonably calculated to end the sexual violence, eliminate the hostile environment, prevent its recurrence, and, as appropriate, remedy its effects.

Id.; see also Edward F. Dragan, Private School Sexual Abuse and Harassment: Professional Standard of Care, EDUC.EXPERT (Oct. 11, 2017), http://education-expert.com/2017/10/sexual- abuse-and-harassment-in-private-schools-professional-standard-of-care/ [https://perma.cc/52Y3- FFHJ] (explaining requirements for any school receiving federal funding to comply with Title IX). 26 See Dragan, supra note 25 (pointing out that any schools receiving federal funding are held to same standard); see also Jane Abelson et al., Private Schools, Painful Secrets,BOSTON GLOBE (May 6, 2016, 9:12 PM), https://www.bostonglobe.com/metro/2016/05/06/private-schools-painful -secrets/OaRI9PFpRnCTJxCzko5hkN/story.html [https://perma.cc/V8RA-CLGX] (mentioning applicability of Title IX to private schools receiving federal funding). 27 See Know Your Rights and Your College’s Responsibilities: Title IX and Sexual Assault, ACLU, https://www.aclu.org/files/pdfs/womensrights/titleixandsexualassaultknowyourrightsand yourcollege%27sresponsibilities.pdf (last visited Dec. 30, 2019) [https://perma.cc/JT9R-KJP3] (describing OCR complaint process in detail).

OCR mandates that schools take “prompt and effective action to end harassment and prevent its recurrence.” Similarly, federal regulations require schools that discriminate on the basis of sex—including ignoring sexual harassment—to “take remedial action” to correct the effects of that discrimination. Students may file a complaint with OCR about harassment. OCR may facilitate a meeting between the students and administration to reach a resolution; it may investigate the claim and issue a letter finding for or against the school; or it may dismiss the complaint. If OCR finds against the school, it may facilitate a session to reach a resolution and may monitor the school’s compliance with its commitments under the agreement. Victims cannot win money through the OCR complaint process. In theory, OCR can strip a school of its federal funding, although no school has ever lost its federal funding as a result of ignoring sexual harassment.

Id. (emphasis omitted); see Jennifer James, Comment, We Are Not Done: A Federally Codified Evidentiary Standard Is Necessary for College Sexual Assault Adjudication, 65 DEPAUL L. REV. 1321, 1328 (2016) (discussing OCR “Dear Colleague Letters”). OCR publishes official regulations and guidelines to provide clarity and interpretation of statutes, but this is not positive or binding law. James, supra note 27, at 1328–29; see Edwards, supra note 15, at 127–28 (detailing OCR claim and investigation process). An OCR Title IX investigation is conducted to find out if a school is compliant with federal law. Edwards, supra note 15, at 127. If they are not, and they do not 148 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV provide a better understanding of how to comply with Title IX, OCR published Dear Colleague Letters, which provided guidance and suggestions for schools on complying with Title IX.28 The letter released in April 2011 was the most influential advice regarding Title IX in years.29 Despite the Department of Education unfortunately rescinding this letter in 2017, it has since announced new rules regarding the legal standard for proving sexual assault allegations.30 In 1999, the Supreme Court defined the standards for an individual to bring a private cause of action under Title IX for student-to-student or peer harassment.31 For a school receiving Title IX funding to be held responsible for sexual misconduct, the school must have had proper notice that they address any problems that are found, the school “can lose federal funding or be referred to the U.S. Department of Justice for further action.” Id. 28 See James, supra note 27, at 1328–29 (explaining use for Dear Colleague Letters). The Dear Colleague Letters are published by the Department of Education’s Office for Civil Rights (OCR), which is the office assigned to regulate and enforce universities’ handling of sexual assault. Id. 29 See id. (discussing how letter guided schools and suggested preponderance of evidence standard). The letters are to be used as guidance by schools that must comply with Title IX. Id. 30 See O’Neill, supra note 17, at 202 (illustrating positive aspects of Dear Colleague Letter and mentioning currently proposed guidelines); see also Lorelei Laird, Education Department Announces New Rules on Handling Campus Sexual Assault, ABA J. (Nov. 16, 2018, 2:51 PM) www.abajournal.com/news/article/education_department_announces_new_rules_on_handling_ca mpus_sexual_assault [https://perma.cc/XQZ4-7T6A] (announcing new standard of proof guidelines for sexual assault allegations). The current Department of Education has proposed rules replacing Obama-era regulations that would “expand the rights of accused students and narrow the types of cases that universities are required to investigate.” Laird, supra note 30; see Simone C. Chu and Iris M. Lewis, What Happens Next with Title IX: DeVos’s Proposed Rule, Explained, HARV.CRIMSON (Feb. 27, 2019), https://www.thecrimson.com/article/2019/2/27/title-ix- explainer/ [https://perma.cc/89H2-WV4D] (explaining current status of proposed changes to Title IX rule). In November 2018, Betsy DeVos, the United States Secretary of Education, proposed the Title IX rule changes, which incited questions and confusion. Chu, supra note 30. After the proposal, there is a 60-day notice-and-comment period, which allows the public to provide feedback. Id. This period has since closed, which now legally requires the Department of Education to review these comments, which could take up to a year. Id. The final rule will be published after reviewing the 100,000 comments, so there will be a delay before the proposed rules are actually instated. Id.; see Jeannie Suk Gersen, Assessing Betsy Devos’s Proposed Rules on Title IX and Sexual Assault, NEW YORKER (Feb. 1, 2019), https://www.newyorker.com/news/our- columnists/assessing-betsy-devos-proposed-rules-on-title-ix-and-sexual-assault [https://perma.cc /B84Q-BU7C] (analyzing proposed rules that would put in place new guidelines and procedures for Title IX); see also John Pardun, Title IX and the Lessons Learned in Higher Education, AM. LAW (Sept. 2019), https://www.jamsadr.com/files/uploads/documents/articles/pardun-theamerican lawyer-title-ix-and-the-lessons-learned-in-higher-education-2019-09.pdf [https:// perma.cc/U5RD -WCNE] (explaining confusion schools face in approaching sexual misconduct allegations). Schools face challenges in choosing whether to adopt a single investigator model or hearing model, and these challenges are exacerbated by the lack of guidance from the Trump administration rescinding Obama administration directives and guidance. Pardun, supra note 30. 31 See Davis, 526 U.S. at 651 (discussing harassment standard for bringing claim). The harassment must be so “severe, pervasive, and objectively offensive” that it effectively bars the victim’s access to an educational benefit or activity. Id. at 650–51. 2020] COMBATTING SEXUAL MISCONDUCT 149 could be held liable, must act with deliberate indifference to acts of harassment, and must exercise substantial control over the harasser and the situation in which the harassment occurs.32 The deliberate indifference requirement is shown if a school receives notice of the claim of sexual misconduct, and the school’s subsequent response is “clearly unreasonable in light of the known circumstances.”33

III. HISTORY

A. Sexual Assault Reform in the United States

In the 1970’s, sexual assault reform advocates sparked a wave of change in the United States.34 For the first time, studies were conducted on how sexual assault affects survivors, prompting reform to laws and procedures regarding sexual assault.35 Nevertheless, these preliminary laws

32 See id. at 649 (stating standard for school’s institutional liability). 33 See id. (explaining standard of response requirement to prove Title IX institution acted with deliberate indifference).

[T]he recipient must merely respond to known peer harassment in a manner that is not clearly unreasonable. This is not a mere “reasonableness” standard . . . A university might not, for example, be expected to exercise the same degree of control over its students that a grade school would enjoy, . . . and it would be entirely reasonable for a school to refrain from a form of disciplinary action that would expose it to constitutional or statutory claims.

Id. It was decided that the petitioner in the case could show that the school “subjected” her “to discrimination by failing to respond in any way over a period of five months to complaints of . . . in-school misconduct from [multiple] students.” Id. 34 See Sexual Assault in the United States, ADVOCATES FOR HUM.RTS., www.stopvaw.org/ national_sexual_assault_laws_united_states (last updated Oct. 17, 2018) [https://perma.cc/2TU2- GTN3] (detailing advancements made in sexual assault reform). During the 1970’s, women established the first rape crisis centers, new procedures to collect medical evidence of sexual assault arose, and the criminal justice system scrutinized and reformed the existing laws and procedures. Id. Psychologists also conducted the first comprehensive study on rape trauma. Id. 35 See id. (highlighting sexual assault criminal justice reform). This was the first time underreporting of sexual assault was addressed as new laws were created in an effort to encourage reporting, and in turn, increase conviction rates. Id. The legislative changes also increased penalties for sexual assault perpetrators and lengthened the statutes of limitation for sexual assault claims. Id. See MODEL PENAL CODE § 213.1 (AM.LAW INST. 2007) (defining rape, gross sexual imposition, and deviate sexual intercourse by force or imposition).

Rape. A male who has sexual intercourse with a female not his wife is guilty of rape if:

(a) he compels her to submit by force or by threat of imminent death, serious bodily injury, extreme pain or kidnapping, to be inflicted on anyone; or 150 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV erroneously focused on the victim’s behavior, which prompted the states and Congress to enact rape shield laws.36 Further, in 1978, the Federal Rules of Evidence incorporated a rape shield provision, which currently states:

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition.37

In 1994, Congress passed the Violence Against Women Act (“VAWA”) “[i]n recognition of the severity of the crimes associated with domestic violence, sexual assault and stalking,” defining sexual violence as a violation of one’s civil rights and providing a federal civil rights remedy for sexual assault claims.38 However, the Supreme Court decided in United States v. Morrison that Congress did not have the power to create a federal civil rights remedy by way of the VAWA because that power did not fall within the bounds of Congress’s spending power.39 The Court did decide,

(b) he has substantially impaired her power to appraise or control her conduct by administering or employing without her knowledge drugs, intoxicants or other means for the purpose of preventing resistance; or (c) the female is unconscious; or (d) the female is less than 10 years old.

Rape is a felony of the second degree unless (i) in the course thereof the actor inflicts serious bodily injury upon anyone, or (ii) the victim was not a voluntary social companion of the actor upon the occasion of the crime and had not previously permitted him sexual liberties, in which cases the offense is a felony of the first degree.

Id. This was one of the first “rape laws” developed, and it is still considered good law. Id.; see MODEL PENAL CODE § 231.1 explanatory note for Sections 213.1–213.6 (applying law only to unmarried intercourse with focus on victim’s previous sexual relations with perpetrator). While this was forward thinking for its time, the statute is clearly in desperate need of revision today, and states have adopted changes to build upon the Model Penal Code (MPC). See Sexual Assault in the United States, supra note 34 (outlining American Law Institute’s (ALI) proposed amendments to MPC definition of rape). The definition was proposed in 2014, but has not been agreed upon by the ALI. Id. It would eliminate the specification about spousal rape, include gender neutral language, and “provide a more comprehensive understanding of force and consent.” Id. 36 See Sexual Assault in the United States, supra note 34 (discussing development of rape shield laws). In 1975, states began passing rape shield laws, which prohibited looking into a victim’s past sexual history, and shifted the focus to the perpetrator’s actions. Id. 37 See FED.R.EVID. 412 (defining current form of federal evidentiary rape shield law). 38 See 34 U.S.C. § 12361 (2019) (formerly 42 U.S.C. § 13981) (providing federal remedy for sexual assault victims at time of enactment). The VAWA includes, among other things, language providing for safe streets and public spaces for women, civil rights for women, and protection from stalking. Id. 39 See United States v. Morrison, 529 U.S. 598, 627 (2000) (finding spending power “does not extend to the enactment of § 13981”). The Supreme Court determined in Morrison that Congress 2020] COMBATTING SEXUAL MISCONDUCT 151 however, that the states have general police power to implement this remedy and that the VAWA was allowed to continue serving its many other purposes, such as services, education, and training for victims of sexual and domestic violence.40 Unfortunately, the VAWA expired in December of 2018 during a government shutdown, and has since been subject to reauthorization from the time the shutdown ended.41 The House of

was without power to provide a civil rights remedy under the VAWA because sexual violence crimes are not economic in nature, and therefore, do not fall under Congress’s spending clause. Id. at 613; see U.S. CONST. art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [sic] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States”). 40 See Morrison, 529 U.S. at 623 (allowing states to enact VAWA-like remedies for victims). The VAWA also created a task force that became the National Task Force to End Sexual and Domestic Violence, which helped to “draft and pass each VAWA reauthorization.” See History of VAWA, LEGAL MOMENTUM, https://www.legalmomentum.org/history-vawa (last visited Nov. 11, 2019) [https://perma.cc/G4M7-YZUG] (providing impact and achievements of VAWA).

Despite elimination of the civil rights remedy, VAWA and its subsequent reauthorizations have vastly improved services for victims of sexual and domestic violence and stalking, as well as education and training about violence against women for victim advocates, health professionals, law enforcement, prosecutors and judges. The numerous new legislative provisions include a ban on states charging rape victims for forensic sexual assault examinations and the criminalization of stalking by electronic surveillance.

Id.; see What Is the Violence Against Women Act, NAT’L DOMESTIC VIOLENCE HOTLINE, https://www.thehotline.org/resources/vawa/ (last visited Nov. 11, 2019) [https://perma.cc/FH5T- JS8N] (identifying VAWA services such as domestic violence hotline); Sexual Assault in the United States, supra note 34 (noting more than dozens of states’ civil rights remedies available for gender-based harm); Know Your Rights and Your College’s Responsibilities: Title IX and Sexual Assault, supra note 27 (illustrating ways states have addressed sexual assault and sexual harassment). For example, “[i]n 2007 the New Jersey Supreme Court, applying the New Jersey Law Against Discrimination, ruled that a school will be liable when it ‘knew or should have known’ about student sexual harassment, but ‘failed to take action reasonably calculated to end the harassment.’” Know Your Rights and Your College’s Responsibilities: Title IX and Sexual Assault, supra note 27. 41 See Jenny Gathright, Violence Against Women Act Expires Because of Government Shutdown, NPR (Dec. 24, 2018, 3:21 PM), https://www.npr.org/2018/12/24/679838115/violence- against-women-act-expires-because-of-government-shutdown [https://perma.cc/DA78-HDHS] (explaining how government shutdown led to expiration of VAWA). The VAWA is linked to budgets that were subject to debate during the shutdown, so Congressional efforts to extend the Act through February 8, 2019, were ineffective, and it was not reauthorized. Id.; see Kate Thayer, The Violence Against Women Act Has Expired. Advocates Say That Sends a Dangerous Message and Are Pushing for Permanent Protections., CHI.TRIB. (Feb. 21, 2019, 11:05 AM), https://www. chicagotribune.com/lifestyles/ct-life-violence-against-women-act-expired-20190220-story.html [https://perma.cc/YMG9-42LZ] (highlighting responses to expiration of VAWA). Congress failed to reauthorize the VAWA in February 2019, which seemed to show their lack of prioritization, and also led to confusion as to why these protections have not been made permanent. Thayer, supra note 41. 152 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Representatives has approved a new version of the VAWA, but it has yet to pass through the Senate.42 A few other examples of advancements towards ending sexual assault in recent years have come in the form of creating non-profits and enacting federal legislation.43 In 2017, eight congressmen resigned from office after being accused of sexual misconduct.44 That same year, Congress passed sexual assault legislation, originally introduced in 2014, which otherwise might not have been enacted without the #MeToo movement.45 In

42 See Susan Davis, House Passes Bill Protecting Domestic Abuse Victims; GOP Split Over Gun Restrictions, NPR, https://www.npr.org/2019/04/04/707685268/violence-against-women-act- gets-tangled-up-in-gun-rights-debate (last updated Apr. 4, 2019, 12:49 PM) [https://perma.cc /2RKY-WF9T] (explaining new additions to VAWA including gun restrictions for abusers and protection for transgender individuals); see also Violence Against Women Reauthorization Act of 2019, H.R. 1585, 116th Cong. (2019–20) (outlining changes and additions to VAWA). 43 See Zachary Zagger, SafeSport ‘Overwhelmed’ With Sex Abuse Claims, Sens. Hear, LAW360 (Oct. 3, 2018, 9:39 PM) https://www.law360.com/articles/1088595/safesport-overwhe lmed-with-sex-abuse-claims-sens-hear [https://perma.cc/ELC7-YPH2] (providing information about SafeSport’s goals, but also its limits); see also H.R. 4924 – Congressional Accountability Act of 1995 Reform Act, CONGRESS.GOV, https://www.congress.gov/bill/115th-congress/house- bill/4924 (last visited Nov. 19, 2019) [https://perma.cc/P7BB-AMM5] (establishing requirements for handling workplace sexual harassment claims). 44 See Hamlin, supra note 15 (detailing allegations against multiple powerful men, such as judges and politicians). “Last year, prompted by mounting accusations against members of Congress and the resulting resignation of eight congressmen, Rep. Jackie Speier (D-Calif.) testified before her colleagues on the House Administration Committee about the sexual harassment she endured while a congressional staffer in the 1970s.” Id. In 1991, years before Speier’s testimony, Anita Hill testified against current Supreme Court Justice Clarence Thomas, alleging he sexually assaulted her. Id. Although she did not convince the Judiciary Committee to disapprove him, she helped bring awareness to the widespread sexual misconduct in politics during that time and “forced corporate and mainstream America to recognize sexual harassment as a crime.” Id. Anita Hill most likely motivated the over 20 other women who worked on Capitol Hill to come forward regarding Senator Bob Packwood’s sexual misconduct. Id. 45 See H.R. 4924 – Congressional Accountability Act of 1995 Reform Act, supra note 43 (amending Congressional Accountability Act of 1995).

The bill eliminates the requirement that an employee participate in counseling and mediation before filing a claim with the Office of Compliance (OOC) alleging a violation. The OOC must investigate claims. If the OOC finds reasonable cause to believe there was a violation or is unable to make a determination, the OOC must conduct a hearing to consider the claim and render a decision.

Id.; see Hamlin, supra note 15 (explaining progress made in 2017). In 2017, Representative Jackie Speier testified about the sexual harassment she endured as a congressional staffer in the 1970’s, which helped expose both the large number of harassment charges that have been filed against members of Congress and the amount of tax money used for settlements. Hamlin, supra note 15. Speier’s bill that was introduced in 2014 was then passed in 2017. Id. The bill holds U.S. politicians responsible for their actions by no longer subjecting victims to mandatory dispute resolution and only allows non-disclosure agreements if the victim agrees to one. See Press Release, Congresswoman Jackie Speier, Rep. Speier Applauds Passage of Anti-Sexual Harassment Bill (Dec. 13, 2018) (on file with author), available at https://speier.house.gov/media-center/press- 2020] COMBATTING SEXUAL MISCONDUCT 153

2017, Congress launched a nonprofit organization called SafeSport in response to allegations of sexual abuse among U.S. Olympic teams.46 The organization was launched to provide expertise and assistance to these sexual assault survivors in an attempt to help them bring complaints.47 It is also utilized to assist in investigating and resolving reports of misconduct and for developing safeguards to prevent such crimes from occurring.48 Unfortunately, SafeSport is currently being “overwhelmed” with allegations, and more resources are needed to continue to protect victims.49

B. Sexual Misconduct Lawsuits Involving Universities in America

Sexual assault on college campuses is a serious and ongoing problem that has persisted for decades.50 This epidemic has received national attention in recent years due to countless headlines and lawsuits concerning reports of sexual assault involving student-athletes and the schools’ subsequent mishandling of such reports.51 Moreover, in 2014, the

releases/rep-speier-applauds-passage-anti-sexual-harassment-bill [https://perma.cc/8HGR-TQDA] (announcing unanimous passage of Congressional Accountability Act of 1995 Reform Act). “‘Congress finally joined together today to say, ‘Time’s Up!’ and sent a message to all members and staff that we will no longer tolerate sexual misconduct that denigrates employees and debases the institution[.]’” Id. 46 See Zagger, supra note 43 (illustrating purposes of SafeSport). 47 See id. (describing SafeSport as organization designed to help victims). 48 See id. (emphasizing importance of SafeSport). 49 See id. (discussing extensive number of claims being brought). 50 See Eilene Zimmerman, Campus Sexual Assault: A Timeline of Major Events, N.Y. TIMES (June 22, 2016), https://www.nytimes.com/2016/06/23/education/campus-sexual-assault-a- timeline-of-major-events.html [https://perma.cc/49MM-RG8C] (summarizing timeline of campus sexual assault developments and incidents over last fifty-plus years). “One of the first published studies about campus sexual assault” was released in 1957. Id. In 1985, one of the largest studies of undergraduate date rape revealed that one in four female college students had been a victim of rape or attempted rape. Id. Further, in 2011, “60 Minutes” featured a story about a woman named Beckett Brennan who was raped in 2008 by three basketball players on the school’s men’s basketball team. Id. 51 See id. (highlighting multitude of mishandled sexual assault claims throughout American college campuses in recent years). In 2014, twenty-three Columbia University students filed claims asserting that the university mistreated them and mishandled their claims of sexual assault. Id. In 2015, a Florida State University student filed a lawsuit for rape that occurred in 2012 against the football team’s quarterback, Jameis Winston. Id. Winston, however, was never questioned by the police, and the school subsequently cleared his name of any wrongdoing. Id. See O’Neill, supra note 17, at 203–07 (detailing Baylor University sexual assault scandal). Since 2014, Baylor University has faced allegations of mishandled sexual assault claims and failure to comply with Title IX. Id. at 203. This scandal stemmed from claims that over thirty Baylor football players had committed rape, including gang rapes, and that the university responded inadequately to these claims. Id. at 206. Also, in 2016, an investigation into Baylor University’s handling of sexual assault allegations against football players concluded that the university did, in fact, mishandle accusations. Id. at 204–07. Moreover, in “January 2016, ESPN’s Outside the Lines reported 154 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

White House Task Force to Protect Students From Sexual Assault was formed, and it released a report on sexual assault in American colleges and universities, containing startling statistics about campus sexual assault and sexual violence.52 The following year, a documentary, The Hunting Ground, was released, which incited a response of shock in many people due to the exposure of widespread occurrence of sexual assault on college campuses.53 Many cases have been brought under Title IX to prove schools’ indifference to sexual harassment claims, despite the high evidentiary standard that plaintiffs have to meet to satisfy the indifference standard.54 These cases involved situations of harassment and assault between students, students and teachers, students and coaches, and students and school or team doctors.55 The most recent college sexual assault scandals that have come to light during the #MeToo era have initiated a call to closely investigate how

multiple incidents where Baylor failed to comply with Title IX regarding allegations of sexual violence through failure to investigate, inadequate investigations, and failing to hire a Title IX coordinator until 2014, despite being directed to do so in 2011 . . . .” Id. at 204. 52 See Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault, WHITE HOUSE (Apr. 2014), https://www.justice.gov/archives/ovw/page/file /905 942/download [https://perma.cc/6WSR-CHWJ] (highlighting sexual assault statistics and ways to address it on college campuses). The report stated that “[o]ne in five women is sexually assaulted while in college.” Id. at 2. Further, the Presidential Task Force detailed four steps planned to be done which are: (1) identify the scope of the problem on college campuses; (2) help prevent campus sexual assault; (3) help schools respond effectively when a student is assaulted; and (4) improve, and make more transparent, the federal government’s enforcement efforts. Id. at 2–4. 53 See THE HUNTING GROUND (Weinstein Company 2015) (exposing sexual assault epidemic on American college campuses). The documentary exposed the frequency with which sexual misconduct crimes occur on American college campuses and the cover-ups by these institutions. Id. In an ironic twist of fate, Harvey Weinstein’s production company distributed the film. Id.; see Manohla Dargis, Review: ‘The Hunting Ground’ Documentary, a Searing Look at Campus Rape, N.Y. TIMES (Feb. 26, 2015), https://www.nytimes.com/2015/02/27/movies/review-the-hunting- ground-documentary-a-searing-look-at-campus-rape.html [https://perma.cc/BF27-3VAZ] (describing documentary as “a documentary shocker about rape on American college campuses, goes right for the gut”). 54 See James, supra note 27, at 1326–27 (discussing burden of proof for many Title IX investigations and cases). Proving indifference is such a high burden because it must be shown that the school knew of the sexual harassment, and it must be proven that their response was unreasonable. Id. at 1327. At a minimum, a plaintiff must substantially show a school’s indifference in their response to sexual assault claims. Id. at 1352. 55 See Doe v. Baylor Univ., 336 F. Supp. 3d 763, 789 (W.D. Tex. 2018) (denying, in part, Baylor’s motion to dismiss regarding inaction in dealing with sexual assault claims); see also Williams v. Bd. of Regents, 477 F.3d 1282, 1289–90 (11th Cir. 2007) (involving gang rape by basketball players and Title IX claim against University and athletic association); Jennings v. Univ. of N.C., 482 F.3d 686, 701 (4th Cir. 2007) (claiming University’s failure to act allowed sexual harassment by coach to continue). These are merely a handful of the recent Title IX cases brought against schools in recent years – in 2014, the White House Task Force to Protect Students From Sexual Assault released a report that revealed the 55 schools that were under investigation by the Department of Education at that time. Not Alone: The First Report of the White House Task Force to Protect Students from Sexual Assault, supra note 52. 2020] COMBATTING SEXUAL MISCONDUCT 155 schools have addressed these scandals – the results of which, have been disturbing.56 Investigations into the sexual assault allegations committed by prominent school athletes, coaches, and other school employees in positions of power have unearthed just how necessary it is for both legislative action and a change in the way schools address such claims.57 One of the most recently publicized and upsetting instances of a college mishandling and covering up sexual misconduct allegations occurred at Michigan State University.58 The allegations, pattern of denial, and suppression of information that marks these claims dated back to 1997.59 Although athletes reported the abuse sustained under the guise of medical treatment and procedures from Larry Nassar (“Nassar”), an athletic physician for many of the on-campus sports, for decades he was not charged of a crime, and Michigan State’s misconduct was not exposed until recently.60 In 2015, a former sexual assault counselor even left Michigan State because she believed reports of sexual assault involving athletes, coaches, or anyone related to the athletic department were being mishandled

56 See Arango, supra note 7 (blaming university for “actively and deliberately” covering up claims); see also Edmondson, supra note 7 (accusing university officials of knowing of abuse and doing nothing to stop it); Murphy, supra note 10 (charging former Michigan State University president with lying to school police regarding Nassar’s conduct). 57 See, e.g., Baylor, 336 F. Supp. 3d at 768–70 (detailing inaction by school to sexual misconduct allegations); Williams, 477 F.3d at 1297 (outlining University’s deliberate indifference towards victim’s claims); Jennings, 482 F.3d at 701 (showing schools’ mishandling of sexual assault claims); see also Jane Cutler Greenspan, Recognizing the Benefits of Experienced Mediators on College Campuses, AM.LAW, https://www.law.com/americanlawyer/native/?mvi=3af f5934fd 4246bdbbb454885b0d1bef&mvpf=0c7da51a457a43ca85b5a83060fb1c4d&mvpflabel=&utm_sou rce=email&utm_medium=enl&utm_campaign=dailypaid&utm_content=20191105&utm_term=ta l (last visited Nov. 11, 2019) [https://perma.cc/TLF3-MKL9] (suggesting mediation for campus Title IX claims to help guide students). 58 See Lavigne and Noren, supra note 7 (explaining how Michigan State committed wrongdoings in responses to sexual assault claims). Michigan State insisted they complied with the standards for handling such complaints despite trying to withhold athletes’ names and redacted incident reports. Id. 59 See id. (revealing Michigan State’s misconduct). Since 1997, there were claims of sexual assault by Michigan State doctor, Larry Nassar, who was allowed to continue working for the University athletic department despite these complaints. Id. Multiple football players were accused of sexual assault or violence in 2007, and there was little to no follow up, nor were there any repercussions for the players. Id. Also, in 2010, the men’s basketball team’s assistant coach and two of its players were accused of raping a student. Id. Rather than formulating a response, the athletic department, school officials, and campus police failed to act and even suppressed the information they received. Id. The assistant coach’s victim spoke to counselors about the rape and filed a report with the athletic department, but nothing was ever reported to police. Id. Further, the allegations were never investigated by anyone outside of the athletic department, and the victim was told “there’s not much that can be done to the players.” Id. These are merely a portion of the number of Title IX claims that were mishandled by Michigan State. Id. 60 See id. (reporting on allegations of crimes committed by Michigan State). 156 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV as it was the athletic director and coaches who were controlling the investigations of these reports.61 In 2014, there was finally a Title IX investigation into Nassar, but despite a brief suspension, Nassar continued to be employed at Michigan State until 2016 because multiple experts agreed that the medical procedures Nassar conducted did not amount to assault.62 For two years, Nassar remained employed at Michigan State while under both criminal and OCR investigation, until a gymnast filed a criminal complaint against him in 2016.63 In addition to other disturbing findings, the investigations discovered that dozens of assault complaints were never reported to federal officials as was required.64 In response to OCR’s findings, Michigan State committed to reevaluating and changing Title IX staffing, resources, education, and training, and agreed to revisit previous cases.65 In addition, for Nassar’s admission of guilt to ten counts of first-degree criminal sexual conduct in lawsuits from more than 150 women, including not only Michigan State

61 See id. (recounting counselor’s experiences at Michigan State). The counselor spoke with ESPN about the non-transparent reporting and about how students were actually discouraged from seeking resources outside the athletic department to “protect the integrity of the [athletic] programs.” Id. In addition to the above claims, in 2010, two basketball recruits were accused of raping a student, and though it was reported to campus police, no charges were filed. Id. The victim was told that because of the accused’s NBA status and previous interviews, her testimony likely would not be strong enough. Id. This resulted in protests and an OCR investigation, which revealed that the school had not completed the federally required Title IX investigation into the matter. Id. In 2015, OCR released the findings of its formal investigation, which found that Michigan State was in violation of several Title IX procedures, had inadequate policies, and kept incomplete files. Id. The report concluded that the school “failed to provide a prompt and equitable response” to the rape victim of the two basketball recruits as mentioned above. Id. OCR also released a report summarizing its investigation of the University as a whole, where 150 reports of sexual misconduct made from 2011 to 2014 were examined. Id. OCR concluded that that there were “significant concerns” regarding the mishandling of approximately twenty percent of these reports. Id. 62 See id. (describing interpretation of Title IX ruling to mean Nassar “cleared of all charges”). 63 See Lavigne and Noren, supra note 7 (outlining years of abuse and subsequent ‘investigations’ into Nassar’s behavior). 64 See id. (detailing OCR findings). The OCR investigation found that Michigan State University violated Title IX procedures by “having inadequate policies and keeping incomplete records.” Id. Michigan State also failed to “promptly investigate” complaints and “operated noncompliant grievance procedures.” See Michigan State University Agrees to Change Its Response to Complaints of Sexual Harassment, Sexual Violence, U.S. DEP’T OF EDUC. (Sept. 1, 2015), https://www.ed.gov/news/press-releases/michigan-state-university-agrees-change-its- response-complaints-sexual-harassment-sexual-violence [https://perma.cc/GAE2-RVAN] (highlighting university’s failure to address complaints promptly and equitably allowed “sexually hostile environment” to exist). 65 See Michigan State University Agrees to Change Its Response to Complaints of Sexual Harassment, Sexual Violence, supra note 64 (describing agreement by Michigan State with U.S. Department of Education to make changes). 2020] COMBATTING SEXUAL MISCONDUCT 157 students, but women on the United States Olympic gymnastics team, Larry Nassar was sentenced to up to 175 years in prison.66 The former Michigan State president, Lou Anna Simon (“Simon”), insisted there was never an attempt to cover up these allegations in order to protect the reputation of the school.67 Simon also said she resigned because she felt obligated to take the blame due to the incidents being ‘politicized,’ but nevertheless, she was formally charged for lying to police.68 Michigan State was also fined $4.5 million for failing to address the sexual abuse committed by Larry Nassar.69 Also, the former Dean of Osteopathic Medicine, William Strampel, was sentenced to a year in jail for his role in the abuse scandal stemming from his conviction of two counts of willful neglect of duty and one count of felony misconduct.70

IV. ANALYSIS

“How we deal with survivors who come forward right now is unacceptable, and the way we deal with this unfortunately allows for the continued darkness of this culture to exist[.]”71 Aside from the actual occurrence of sexual misconduct, the biggest issues regarding schools and sexual assault, as evidenced by the aforementioned cases and incidents, are the mishandling or complete dismissal of claims by colleges and

66 See id. (discussing Nassar’s sentencing for crimes committed against Michigan State students and Olympic gymnasts). 67 See Murphy, supra note 10 (describing Michigan State’s president’s resignation). 68 See id. (reporting on formal charges against Simon). If convicted, Simon faces a maximum of four years in prison. Id.; see Ex-Michigan State President Lou Anna Simon Ordered to Stand Trial, ESPN (Oct. 28, 2019), https://www.espn.com/college-sports/story/_/id/27952310/ex- michigan-state-president-lou-anna-simon-ordered-stand-trial [https://perma.cc/GV4V-QYQX] (stating judge’s finding of probable cause to send Simon to trial). Three school officials have been ordered to stand trial, and Michigan State was ordered to pay a “$4.5 million fine for failing to adequately respond to complaints against Nassar.” ESPN, supra note 68. 69 See Colin Dwyer, Michigan State University to Pay $4.5 Million Fine Over Larry Nassar Scandal, NPR (Sept. 5, 2019), https://www.npr.org/2019/09/05/757909245/michigan-state- university-to-pay-4-5-million-fine-over-larry-nassar-scandal [https://perma.cc/99BY-DMNL] (illustrating reasoning for fine). 70 See Elizabeth Joseph and Jason Hanna, Larry Nassar’s Former Boss at MSU Gets a Year in Jail for Misconduct and Neglect of Duty, CNN, https://www.cnn.com/2019/08/07/us/msu- strampel-sentence-nassar/index.html (last updated Aug. 7, 2019, 2:49 PM) [https://perma .cc/6KGZ-7EK7] (detailing Strampel’s conviction for sexually assaulting female students and soliciting nude photos from them). 71 See Reston, supra note 7 (highlighting Senator Corey Booker’s response at Senate Judiciary Committee hearing to confirm Brett Kavanaugh). 158 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV universities.72 School enactment and enforcement of Title IX policies should be required on a state and federal level with penalties and stakes raised to mitigate such mishandling of reports.73 Enacting policies for reporting and investigating sexual misconduct claims should also be required for both public and private schools, regardless of whether Title IX applies to them.74 In particular, private schools should develop policies which clearly state that the “school does not tolerate sex discrimination or harassment in any form by anyone” which should include sexual misconduct of any kind.75 These policies should be published and distributed to all students, parents, staff, and anyone else associated with the school or who may come into contact with students.76 Although the threat of losing funding or portions thereof should be a motivating factor for schools to comply with Title IX, no school has ever lost federal funding due to a Title IX claim.77 This further demonstrates the dire need for change and puts into perspective the necessity for reform.78 Additionally, action is necessary to address the obstacles inhibiting sexual assault survivors’ willingness or ability to file sexual harassment claims, which contribute to their reluctance to come forward.79 “[S]exual assault is a multifaceted issue shaped by broader cultural norms, and tackling sexual assault requires a comprehensive and

72 See, e.g., Lavigne and Noren, supra note 7 (detailing sexual assault scandal at Michigan State); Edwards, supra note 15 (encouraging improvement of reporting standards); O’Neill, supra note 17 and accompanying text (describing occurrence of sexual assault on college campuses). 73 See Lavigne and Noren, supra note 7 (discussing changes Michigan State agreed to make in response to its wrongdoings); see also Murray, supra note 6 (reporting goals of proposed Massachusetts legislation). 74 See Dragan, supra note 25 (providing guidance and suggested requirements of both public and private schools, regardless of Title IX). In particular, private schools should develop policies which clearly state that the “school does not tolerate sex discrimination or harassment in any form by anyone[,]” which should include sexual misconduct of any kind. Id. These policies should be published and distributed to all students, parents, staff, and anyone else associated with the school or who may come into contact with students. Id. 75 See id. (pointing to sexual misconduct policies that schools should adopt). 76 See id. (explaining how policies should be distributed and circulated among important parties). 77 See Know Your Rights and Your College’s Responsibilities: Title IX and Sexual Assault, supra note 27 (finding no school has lost funding due to violation of Title IX). 78 See Edwards, supra note 15 (suggesting OCR and Title IX reform); see also James, supra note 27 (arguing for “federally codified evidentiary standard for college sexual assault adjudication”). 79 See O’Neill, supra note 17, at 201 (citing reasons for victims not coming forward, such as fear of retaliation). These reasons include victims being concerned about potential embarrassment, economic concerns, their claims being ignored, and their credibility potentially being questioned. Id.; see also The Criminal Justice System: Statistics, supra note 22 (publishing survey results regarding sexual assault victims not reporting crimes committed against them). 2020] COMBATTING SEXUAL MISCONDUCT 159 multipronged approach.”80 To attempt to solve the current issues of the volume of sexual assault allegations in schools, as well as encourage and increase reporting, action is required from both schools and the government.81 With the recent expiration of the VAWA and the rescission of Obama-era regulations on sexual assault, the need to address the problems surrounding reporting and handling of claims is more important than ever.82 Indeed, the cultural shift around sexual assault and sexual harassment due to the #MeToo movement has pushed the issue even further into the spotlight.83

A. A ‘Systems Failure’ and How Educational Institutions Must Respond

The first step toward remedying issues with sexual assault reporting is ensuring that schools are in compliance with Title IX.84 Despite many institutions recently creating new roles and policies to address sexual

80 See Sexual Assault in the United States, supra note 34 (emphasizing need for reform through multiple organizations and groups). 81 See O’Neill supra note 17, at 203 (arguing for stricter Title IX policies enforced through schools).

Title IX also has an anti-retaliation provision, which makes it unlawful to retaliate against students who file complaints or “participate in a Title IX investigation, hearing, or proceeding.” Schools must not only take steps to prevent retaliation from occurring in the first place but also respond effectively if retaliation does in fact occur.

Id.; see James, supra note 27, at 1341 (reasoning that universal federal standard of evidence is necessary through government action). 82 See Thayer, supra note 41 (emphasizing need for permanent protections for women from sexual assault due to VAWA expiration); see also Gersen, supra note 30 (assessing proposed rules to replace Obama administration guidelines). The Obama administration’s Department of Education threatened to take away federal funding from schools that did not take “measures to prevent and remedy sexual violence among students.” Gersen, supra note 30. The Trump administration has rescinded as many as “twenty Obama-era policy guidelines on anti- discrimination laws,” and their currently proposed rules aim to protect the accused rather than victims. Id. 83 See Rottenberg and Faughnder, supra note 5 (emphasizing evolving culture surrounding sexual misconduct and push towards change throughout United States); see also Pardun, supra note 30 (pointing to #MeToo movement as motivating factor to remedy confusion surrounding investigative and evidentiary models). 84 See James, supra note 27, at 1337–38 (stating surveys’ results of schools’ compliance with Title IX).

[S]urveys have shown that universities failed to properly follow this law. Results from a 2014 study that surveyed 236 universities showed that “41% [of the universities] surveyed had not conducted a single sexual-assault investigation in the past five years” and 21% of the schools investigated fewer incidents than were actually reported.

Id. (second alteration in original). 160 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV misconduct, unfortunately many modifications were made in response to Title IX lawsuits and investigations.85 For example, Baylor University and Michigan State University were charged with multiple Title IX violations, and only after OCR investigations and court rulings did the schools implement or agree to implement policy changes.86 Educational institutions must take a proactive approach to ensure proper reporting standards and enforcement of such are in place.87 Higher educational institutions should encourage survivors to speak up, and schools should communicate and proactively educate students of their resources and rights.88 The #MeToo movement is a great example of discussing shared experiences, and in turn, motivating others to come forward.89 Institutions should also implement a zero-tolerance policy towards sexual misconduct, and schools need to make all students, staff, and parents aware of this policy.90 Further, appointed Title IX coordinators must be disinterested, neutral parties, so that there is no bias or efforts to protect schools’ reputations or images by covering up or neglecting sexual misconduct claims.91 Title IX coordinators should likewise oversee athletic recruitment to ensure prospective athletes are not being ‘passed’ from one

85 See Doe v. Baylor Univ., 336 F. Supp. 3d 763, 779 (W.D. Tex. 2018) (stating details of school’s Title IX violations); see also Edwards, supra note 15, at 127–29 (discussing multiple schools’ Title IX investigations and their responses). Harvard Law School and Duke University also only agreed to begin implementing new policies and procedures after a Title IX investigation. Edwards, supra note 15, at 127–29; see Lavigne and Noren, supra note 7 (noting Michigan State’s noncompliance with Title IX and subsequent promise to improve Title IX procedures). 86 See Baylor, 336 F. Supp. 3d at 779 (highlighting how schools only acted after OCR investigations began). 87 See Edwards, supra note 15, at 127 (providing examples of schools addressing sexual misconduct without being found in violation of Title IX). 88 See O’Neill, supra note 17, at 211–12 (discussing what schools can do to better protect students). 89 See id. (highlighting sharing and talking about instances of sexual misconduct to foster compassion). 90 See Dragan, supra note 25 (emphasizing need for more student awareness of procedures and policies in private schools). Policies need to be distributed to all students, parents, staff, and anyone associated with the school, and clear supervisory policies should be put into place. Id. Private schools should also “identify a person in the school to oversee the prevention, identification, and remediation of sexual [misconduct],” and this person should be knowledgeable about Title IX requirements for public schools. Id. This would be a sort of Title IX coordinator, but for private schools. Id. 91 See O’Neill, supra note 17, at 210–14 (citing cases where athletes accused of sexual misconduct were investigated by bias Title IX coordinators). “Athletic departments cannot be involved in sexual assault cases involving student-athletes. Bias from athletic departments trying to protect their student-athletes creeps in and goes against best practices on how to handle reports of sexual violence.” Id. at 212. 2020] COMBATTING SEXUAL MISCONDUCT 161 school to another due to sexual misconduct.92 For example, regarding the Baylor scandal, multiple football players committed similar sexual violence offenses prior to joining the team, and Baylor allegedly was aware of these allegations and ignored the claims.93 Although Title IX claims are not a possibility for students at private schools that do not receive federal funding, private schools should inform students of how they can pursue a claim through OCR or sue through a breach of contract or negligence suit.94 Due to widespread noncompliance with Title IX, state and federal governments should also take initiative in criminalizing failure to comply with certain standards regardless of the institution receiving federal funding or not.95

B. Federal Legislation Necessary

As mentioned above, in September 2017, the Trump administration revoked the OCR Dear Colleague Letter that governed and clarified Title IX requirements to ensure student safety, and the VAWA has not been reauthorized since its expiration.96 Due to these aforementioned changes by the federal government and interim guidelines by the Department of Education, students are less protected, and these changes indicate a decline in progress for ensuring student safety.97

92 See O’Neill, supra note 17, at 213 (providing examples of schools that did not thoroughly investigate prior allegations of athletic recruits). Schools should investigate whether potential recruits have been accused or charged with prior crimes before accepting a transfer student, and should take appropriate action if they have. Id. 93 See id. (pointing to how Baylor was aware of previous allegations). 94 See Dragan, supra note 25 (discussing ways students at schools not receiving federal funding may bring claims against school). A student may sue for breach of contract “if the contract between the private school and parents specifically states or implies that the school will protect students from harm, adequately supervise students, or otherwise assure their protection . . . .” Id. They may bring a negligence action if the school failed to implement their policies used to address sexual assault. Id. 95 See Murray, supra note 6 (reasoning Massachusetts bill would protect state from changes in federal policies); see also Thayer, supra note 41 (emphasizing importance of VAWA reauthorization). 96 See O’Neill, supra note 17, at 202 (detailing rescission of 2011 OCR Dear Colleague Letter). Before the 2011 letter revocation, “any complaint filed with the school had to be resolved under the preponderance of the evidence standard—any higher standard of proof was not allowed.” Id. Now, interim guidelines have been issued which allow schools to choose whether to use “the preponderance of the evidence standard or clear and convincing evidence.” Id.; see Laird, supra note 30 (discussing proposed rules which expand rights of accused and narrow which cases must be investigated); Gathright, supra note 41 (describing reasons for expiration of VAWA and potential for its reauthorization). 97 See Laird, supra note 30 (noting problems posed by proposed Department of Education rule); see also Gersen, supra note 30 (describing how new rules would protect accused and not 162 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

The proposed rules by the Department of Education would not include a universally mandated standard of proof for sexual misconduct claims, thereby making it more likely that a victim may not meet the standard if a higher standard is chosen.98 If the rules are put into place, schools would be able to choose a higher standard of proof to use in investigating sexual misconduct, which expands the rights of the accused.99 This may discourage survivors from reporting or filing a claim because meeting a higher evidentiary standard adds to the stress of bringing a claim, which could dissuade them from coming forward if they think they do not have enough ‘proof’ and will not be believed.100 The Trump administration is opposed to the preponderance of the evidence standard because they believe it poses a due process issue as it increases the likelihood of wrongful convictions.101 However, it lessens protection for victims, and if implemented, the rule could then be changed in the future to an even lower standard such as “substantial evidence,” which would be much more likely to violate the due process rights of the accused than the preponderance of the evidence standard.102 The standard of proof is not the only colossal change contained in the proposed rules—the Department of Education (“DOE”) has also suggested regressive changes such as: narrowing the types of cases schools survivors); Thayer, supra note 41 (explaining how VAWA reauthorization would protect victims of sexual assault). 98 See James, supra note 27, at 1353 (highlighting uncertainty that would result from not mandating a universal standard). “Although due process rights advocates argue that a federally codified preponderance of the evidence standard would take away from accused students [sic] rights, the alterative could pose more harm. Uncertainty of a standard that would be universally used on campuses provides inconsistent due process.” Id.; see Laird, supra note 30 (demonstrating issues with proposed regulations allowing schools to choose standard of proof). Victims are better protected at schools with the preponderance of the evidence standard because this threshold of evidence is lower for victims to prove as opposed to a “clear and convincing evidence” or “beyond a reasonable doubt” standard. Laird, supra note 30. A preponderance of the evidence standard requires a finding of “more likely than not” that a sexual assault occurred. Id. “The American Association of University Women said the new rules were ‘completely at odds’ with Title IX. ‘Any action that limits recourse for students who experience sexual harassment or assault in schools is flat-out wrong . . . .’” Id. 99 See Laird, supra note 30 (discussing results of implementing new rules). 100 See James, supra note 27, at 1336 (advocating for preponderance of evidence standard). “[P]reponderance of the evidence provides a better safeguard for an equitable implementation of rights between the victim and the accused.” Id. “Clear and convincing evidence” and “beyond a reasonable doubt” are standards that are reserved for when “grave liberties” or “criminal consequences are at risk.” Id. The preponderance of the evidence standard is more appropriate because it is “used in the majority of civil cases and campus sexual assault adjudication is most similar to a civil remedy.” Id. 101 See id. at 1351 (pointing to reason for Trump administration’s opposition to preponderance of evidence standard). 102 See id. (explaining why preponderance of evidence standard is preferred standard). 2020] COMBATTING SEXUAL MISCONDUCT 163 must investigate; lessening the standard of specific time limits on investigations to a merely ‘reasonably prompt’ manner; changing the DOE definition of sexual harassment; and allowing for cross-examination of survivors.103 These changes would not encourage survivors to come forward and would provide for standards that lessen their rights.104 Therefore, schools should not be able to choose the standard of proof to use, and the federal government should mandate a preponderance of the evidence standard for all schools, whether or not they receive Title IX funding.105 The Dear Colleague Letter from 2011 should also be reinstated as its rescission removed the guidance and standards schools once used.106 The Letter suggested mandating the preponderance of the evidence standard, and should the Letter not be reinstated, a federally mandated standard is necessary.107

C. State Legislation Essential

Due to the seemingly regressive changes and uncertainty in federal rules concerning sexual misconduct in higher educational institutions, it is essential that states take initiative and implement laws to protect their residents.108 Currently, in Massachusetts, the fine for mandated reporters’ failing to report sexual misconduct is a seemingly low maximum of $1,000.109 Massachusetts and other states should enact a higher fine to incentivize and encourage mandatory reporters to file reports when they are required to.110 Creating financial incentives for institutions that accurately

103 See Laird, supra note 30 (explaining how narrowed definition of sexual harassment decreases number of cases that schools must investigate). The sexual harassment definition would be contracted from “unwelcome conduct of a sexual nature” to “unwelcome conduct on the basis of sex that is so severe, pervasive and objectively offensive that it denies a person access to the school’s educational program or activity.” Id. This proposed definition would decrease the scope of conduct covered by the rules and provide for a stricter standard, which the conduct must reach. Id. This would cause less reporting and discourage victims from reporting misconduct if they are uncertain whether it meets that standard. Id. 104 See id. (explaining proposed rules’ restrictions on victims). For example, “only allegations reported to designated administrators” would be “required to be investigated.” Id. 105 See James, supra note 27, at 1336 (encouraging federally codified preponderance of evidence standard). Sexual assault will persist, and new consequences will arise without a codified evidentiary standard. Id. at 1323. 106 See id. at 1329 (showing repercussions of 2011 OCR letter rescission). 107 See id. (explaining how OCR letter recommendations should be reinstated or incorporated into federal legislation). 108 See Murray, supra note 6 (explaining need for new Massachusetts legislation in event of federal policy changes). 109 See Warkov, supra note 26 (emphasizing maximum fine in Massachusetts when mandated reporters fail to report). 110 See id. (highlighting monetary incentive). 164 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV report and imposing serious penalties for non-reporting institutions will help mitigate the underreporting problem surrounding sexual assault.111 A proposed Massachusetts bill, S. 2203, required public and private institutions to have procedures in place for reporting sexual misconduct, domestic violence, and other forms of misconduct, regardless of their government funding.112 The bill’s objective was to ensure higher education institutions adopt sexual misconduct policies in coordination with Title IX and to “require schools to provide students with information on the number of allegations of sexual violence on campus, their rights, and where to receive emergency assistance and support services.”113 Although the bill passed in the bipartisan Senate, it was referred to the House Ways and Means Committee, and no action was subsequently taken.114 The proposed bill was a preemptive attempt to protect the state from proposed federal policy changes that lessen protections and resources for survivors and is an exemplary model of important factors to consider in drafting sexual assault legislation applicable to higher educational institutions.115 Fortunately, many states have taken successful steps to ensure fair Title IX investigations and adjudication, but many more need to take action.116

111 See Durso Law, supra note 19 (highlighting need for serious penalties for non-reporting of sexual misconduct). 112 See S.2203, 190th Leg. (Mass. 2017–2018) (reciting language of proposed bill); see also Murray, supra note 6 (outlining requirements of Massachusetts bill proposed by State Senator, Michael Moore). 113 See Murray, supra note 6 (discussing goals of legislation). The bill would have influenced students to take legal actions, rather than schools merely handling the claims administratively, and it would have also required training and educational programs at schools. Id. 114 See S.2203, 190th Leg. (Mass. 2017–2018) (displaying legislature trajectory). The bill unanimously passed in a roll call vote in the Senate; however, no further action was taken by the House. Id. 115 See Murray, supra note 6 (highlighting purpose of bill); see also Other Legal Issues in Sexual Assault Cases, UN WOMEN, https://www.endvawnow.org/en/articles/23-other-legal-issues- in-sexual-assault-cases.html (last updated Oct. 29, 2010) [https://perma.cc/CR4X-4QLP] (suggesting how to draft legislature that will implement laws on sexual assault). It is encouraged, among many other suggestions, that sexual assault legislation should contain core elements such as a clear definition of sexual assault, “prohibition of mitigating factors,” and a “provision for mandatory investigation of sexual assault.” Other Legal Issues in Sexual Assault Cases, supra note 115. 116 See Know Your Rights and Your College’s Responsibilities: Title IX and Sexual Assault, supra note 27 (highlighting states that have enacted legislation protecting victims of sexual assault). In 2007 the New Jersey Supreme Court, applying the New Jersey Law Against Discrimination, ruled that a school will be liable when it “knew or should have known” about student sexual harassment, but “failed to take action reasonably calculated to end the harassment.” Other states have similar laws, including the Florida Education Equity Act, the Rhode Island Civil Rights Act of 1990, the Maine Human Rights Act, the Minnesota Human Rights Act, and the Washington Law Against Discrimination. Id. 2020] COMBATTING SEXUAL MISCONDUCT 165

V. CONCLUSION

Advocacy for sexual assault reform has been brought to the forefront in recent years, in part due to the #MeToo movement and regressive policy changes by the Trump administration. Currently, the support on college campuses surrounding sexual assault and the #MeToo movement signifies a clear need for legislative and institutional action. The victims of sexual misconduct on college campuses need to be protected by their schools and the United States’ state and federal governments. With the #MeToo movement bringing light to the sexual assault epidemic in the United States, there has been a shift in cultural norms surrounding the issue, and this change is a major step forward. However, school policies must change, and state and federal legislators must take action to address this public health issue. All states should be protecting their residents, especially students, through human rights, civil rights, and anti-discrimination legislation, and also in adjudicating state law cases. There has never been a better time than now to advocate for this reform, and there is hope that one day the sexual assault epidemic in America, specifically in educational institutions, will be a thing of the past. With the proper mandatory polices in place for colleges and strict federal and state legislation, this can happen.

Aubrey Trudeau INTERNATIONAL LAW—EXTRAJUDICIAL KILLINGS: ACTS OF TERRORISM OR ACTS OF ELABORATE COVER-UPS?—SULLIVAN V. REPUBLIC OF CUBA, 891 F.3D 6 (1ST CIR. 2018).

Ordinarily, a country is immune from being subjected to legal proceedings in another country.1 To enumerate this protection, the United States codified the Foreign Sovereign Immunities Act (“FSIA”), which limits the possibility for foreign sovereign nations to be sued in United States’ courts.2 The United States Court of Appeals for the First Circuit faced the issue in Sullivan v. Republic of Cuba3, of whether the Foreign Sovereign Immunities Act’s terrorism exception applies to the extrajudicial

1 See JENNIFER K. ELSEA, CONG.RESEARCH SERV., RL31258, SUITS AGAINST TERRORIST STATES BY VICTIMS OF TERRORISM:BACKGROUND ON STATE IMMUNITY 3–5 (2008) (explaining immunity custom afforded to sovereign states); see also Peter-Tobias Stoll, State Immunity, OXFORD PUB.INT’L LAW, http://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law- 9780199231690-e1106?print=pdf (last updated Apr. 2011) [https://perma.cc/A93H-6BMA] (defining state immunity). “State immunity protects a State and its property from the jurisdiction of the courts of another State. It covers administrative, civil, and criminal proceedings (jurisdictional immunity), as well as enforcement measures (enforcement immunity).” Stoll, supra, note 1. See How Do You Go About Suing a Country?, NPR (Oct. 8, 2016, 8:29 AM), https://www.npr.org/2016/10/08/497164736/how-do-you-go-about-suing-a-country [https://perma .cc/94MW-MQFZ] (describing purpose of state immunity). It is preferred that disputes between two states “be resolved at the diplomatic stage as opposed to the private civil litigation stage.” Id. 2 See 28 U.S.C. § 1604 (2015) (defining immunity of foreign state from United States jurisdiction). “Subject to existing international agreements to which the United States is a party at the time of enactment of this Act a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States . . . .” Id. See JENNIFER K. ELSEA,CONG.RESEARCH SERV., RS22094, LAWSUITS AGAINST STATE SUPPORTERS OF TERRORISM:AN OVERVIEW, 1 (2005) (describing Foreign Sovereigns Immunity Act).

Ordinarily, foreign States, including their agencies and instrumentalities, may not be sued in U.S. courts unless they waive their sovereign immunity or an exception under the Foreign Sovereign Immunities Act (FSIA) (28 U.S.C. §§ 1602 et seq.) applies. The FSIA provides a list of circumstances where U.S. federal courts will not recognize foreign sovereign immunity. In these circumstances, U.S. courts may exercise jurisdiction over a dispute and treat a foreign state as if it were a private entity.

Id.; see Amy Howe, Opinion Analysis: Court Upholds Narrow Construction of Foreign Immunity Law in Terrorism Case, SCOTUSBLOG (Feb. 21, 2018, 2:14 PM), https://www.scotusblog.com /2018/02/opinion-analysis-court-upholds-narrow-construction-foreign-immunity-law-terrorism- case/ [https://perma.cc/6VB2-WNCM ] (processing case history of FSIA terrorism exception case). 3 891 F.3d 6 (1st Cir. 2018). 2020] EXTRAJUDICIAL KILLINGS 167 killing of a United States citizen that Cuba allegedly committed.4 The First Circuit held that the previous default judgment against Cuba for allegedly committing the extrajudicial killing lacked subject matter jurisdiction, and could not be enforced.5 In October 1963, Geoffrey Sullivan, who served in the United States Air Force and the Army National Guard, disappeared.6 This prompted his daughter, Sherry Sullivan (“Sullivan”) to attempt to uncover what happened to her father by gathering evidence pertaining to his disappearance.7 Sullivan concluded that during a mission against Cuba, her father was captured, imprisoned, and later died in custody.8 This provoked Sullivan to sue the

4 See 28 U.S.C. § 1605A(a)(1) (2008) (providing terrorism exception to jurisdictional immunity of foreign states).

A foreign state shall not be immune from the jurisdiction of courts of the United States . . . which money damages are sought against a foreign state for personal injury or death that was caused by an act of torture, [or] extrajudicial killing . . . is engaged in by an official, employee, or agent of such foreign state while acting within the scope of his or her office, employment, or agency.

Id.; see Sullivan, 891 F.3d at 11–12 (finding that terrorism exception does not apply); see also Ruthanne M. Deutsch, Suing State-Sponsors of Terrorism Under the Foreign Sovereign Immunities Act: Giving Life to the Jurisdictional Grant After Cicippio-Puleo, 38 INT’L LAWYER 891, 891 (2004), available at https://scholar.smu.edu/cgi/viewcontent.cgi?article=2307&context=til [https://perma.cc/HU9R-MQQC] (explaining option to sue foreign states after acts of terrorism). “In 1996, Congress enacted legislation to allow American citizens harmed by terrorist acts to use the U.S. courts to seek money damages from the responsible state sponsors of terrorism.” Deutsch, supra note 4, at 891. 5 See Sullivan, 891 F.3d at 10 (affirming dismissal of action). Sullivan failed to prove that Cuba was not immune to the action. Id. at 9. If a FSIA exception does not apply, the foreign state will be immune from any lawsuits because the exceptions present the only basis to get jurisdiction over a foreign sovereign. Id. (citing Saudi Arabia v. Nelson, 507 U.S. 349, 355 (1993); Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989)). 6 See Sullivan v. Republic of Cuba, 289 F. Supp. 3d 231, 233 (D. Me. 2017), aff’d 891 F.3d 6 (1st Cir. 2018) (explaining Geoffrey Sullivan’s past). 7 See Sullivan, 891 F.3d at 8 (stating plaintiff’s research). Sullivan discovered the timeline of her father’s death by “contacting dozens of federal agencies and officials and filing a Freedom of Information Act (“FOIA”) request.” Id. (internal quotation marks omitted). Sullivan also had evidence that her father died in 1982 while in the custody of the Cuban government, which was a significant time later than his disappearance date in October 1963. Id. at 7–8. 8 See Sullivan, 289 F. Supp. 3d at 234 (describing evidence revealing Geoffrey Sullivan was shot down and imprisoned in Cuba). The evidence presented included: (1) a variety of reports stating that someone resembling Geoffrey Sullivan was taken aboard a Cuban vessel; (2) United States Department of State records describing rumors from Cuban refugees that Geoffrey Sullivan crashed his plane near Cuba; (3) reports from Americans who were imprisoned in Cuba stating that the name Sullivan sounded familiar; (4) a report from an American pilot stating he was detained in Cuba next to an American claiming to be “Mr. Sullivan” who was detained for “almost ten years;” (5) a radio talk show report detailing that Geoffrey Sullivan was engaged in combat with a Cuban governmental aircraft when he was shot down; (6) a previously imprisoned Cuban émigré statement 168 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV defendant, the Republic of Cuba (“Cuba”), in 2007 for wrongful death.9 Despite being properly served, Cuba did not appear in Maine Superior Court, and Sullivan was subsequently awarded “$21 million in damages for loss of support, severe emotional distress, and damages to her father’s estate, including compensation for his pain and suffering.”10 Despite the judgment, Sullivan was unable to collect any of her awarded damages from Cuba and sought to enforce the default judgment in the United States District Court for the District of Maine.11 The federal district court asked Sullivan to determine if there was proper subject matter jurisdiction for the original action and to provide sufficient evidence of the extrajudicial killing.12 After hearing Sullivan’s arguments, the court denied the motion for default judgment, dismissed the case for lack of subject matter jurisdiction, and found that Geoffrey Sullivan was not extrajudicially killed by Cuba.13

to the FBI and CIA that an American had been at a prison hospital seeking treatment for burns after the time of Geoffrey Sullivan’s disappearance; and (7) two previously imprisoned Cuban Americans statements describing that there was a prisoner named “Sullivan” in 1991. Id. 9 See Sullivan, 891 F.3d at 7 (explaining initial suit brought by plaintiff in Maine Superior Court). The state court claimed to have subject matter jurisdiction because it concluded that Cuba did not have immunity from the case as it committed an extrajudicial killing, which falls under the terrorism exception of the FSIA. Id. at 8. The state court also found that Sullivan could be entitled to damages because she is “the successor to, heir to and guardian of her father’s estate.” Id. (quoting Sullivan, 289 F. Supp. 3d at 233). 10 See Sullivan, 891 F.3d at 8 (describing outcome of wrongful death suit). The Maine Superior Court agreed with the proposed facts and legal conclusions presented by Sullivan regarding the background information of her father’s disappearance. Id. On August 10, 2009, the Maine Superior Court entered a default judgment for Sullivan. Id. Before Sullivan was awarded damages, a hearing was conducted in which Cuba again did not appear for, prompting the Maine Superior Court to award Sullivan the damages. Id. 11 See id. at 8–9 (outlining process Sullivan took after damages were awarded). On June 21, 2016, Sullivan filed suit to enforce the default judgment, however, despite being properly served, Cuba again failed to appear. Id. Sullivan moved for entry of default on May 12, 2017. Id. 12 See id. at 9 (interpreting district court’s concern about validity of default judgment). A hearing was scheduled on August 28, 2017 for the district court to analyze Sullivan’s arguments. Id. 13 See id. (explaining why case was without merit). At the August 28, 2017 hearing, Sullivan attempted to support her case by presenting herself and an attorney as a witness, in addition to several exhibits. Id. Such exhibits included a letter from Sullivan’s mother providing information that Geoffrey Sullivan was in a plane crash and later imprisoned in Cuba, “second- and third-hand reports” of Geoffrey Sullivan allegedly being in Cuban prisons, notes from the show Unsolved Mysteries regarding Geoffrey Sullivan’s disappearance, and other governmental documents which confirmed Geoffrey Sullivan’s disappearance. Id. (citing Sullivan v. Republic of Cuba, 289 F. Supp. 3d 231, 237–38 (D. Me. 2017), aff’d 891 F.3d 6 (1st Cir. 2018) (internal quotation marks omitted). Despite the evidence, the district court found it lacked subject matter jurisdiction to hear the case because Sullivan failed to support her argument that the terrorism exception to the Foreign Sovereign Immunities Act applied. Sullivan, 289 F. Supp. 3d at 244. 2020] EXTRAJUDICIAL KILLINGS 169

In 1976, the Foreign Sovereigns Immunities Act set the legal standard for foreign state immunity in civil actions.14 As a result of this immunity, plaintiffs are forced to find an exception that will allow them to sue a foreign sovereign nation.15 In 2008, Congress amended the FSIA to add the terrorism exception, which gave plaintiffs a greater opportunity to sue foreign states.16 However, for a court to hear a claim under the terrorism exception, the state being sued must be a state sponsor of terrorism at the time of the specific act or when the claim was filed.17 Thus, if a plaintiff is

14 See 28 U.S.C. § 1604 (1976) (setting immunity standard for foreign sovereigns); see also Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 488–89 (1983) (explaining purpose of Foreign Sovereign Immunities Act). The Act was passed “to free the Government from the case- by-case diplomatic pressures, to clarify the governing standards, and to [assure] litigants that . . . decisions are made on purely legal grounds and under procedures that insure due process . . . .” (alteration in original) (internal quotation marks omitted). Verlinden B.V., 461 U.S. at 488. If, however, an exception under 28 U.S.C. § 1605 or 28 U.S.C. § 1607 applies, the foreign sovereign might not be immune from legal actions. Id.

A foreign state is normally immune from the jurisdiction of federal and state courts . . . subject to a set of exceptions specified in §§1605 and 1607. Those exceptions include actions in which the foreign state has explicitly or impliedly waived its immunity . . . and actions based upon commercial activities of the foreign sovereign carried on in the United States or causing a direct effect in the United States . . . . When one of these or the other specified exceptions applies, the foreign state shall be liable in the same manner and to the same extent as a private individual under like circumstances.

Id. at 488–89 (citations omitted) (internal quotation marks omitted). 15 See 28. U.S.C. § 1604 (providing exceptions in sections 1605 to 1607); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (detailing certain exceptions that may apply to sovereign immunity). “[T]he FSIA provides the sole basis for obtaining jurisdiction over a foreign state in federal court . . . .” Argentine Republic, 488 U.S. at 443 (Blackmun, J., concurring).

[T]he exceptions enumerated in the Act . . . include cases involving the waiver of immunity, § 1605(a)(1), commercial activities occurring in the United States or causing a direct effect in this country, § 1605(a)(2), property expropriated in violation of international law, § 1605(a)(3), inherited, gift, or immovable property located in the United States, § 1605(a)(4), noncommercial torts occurring in the United States, § 1605(a)(5), and maritime liens, § 1605(b).

Id. at 439; see Saudi Arabia v. Nelson, 507 U.S. 349, 363 (1993) (rejecting respondent’s action to sue Saudi Arabia as FSIA did not confer jurisdiction over suit). The Court found that the tortious acts that the plaintiff allegedly sustained did not qualify under the Act’s commercial activity exception. Nelson, 507 U.S. at 358. 16 See 28 U.S.C. § 1605A(a)(1) (2008) (outlining terrorism exception to jurisdictional immunity of foreign state); see also David P. Stewart, The Foreign Sovereign Immunities Act: A Guide for Judges, FED.JUD.CTR.INT’L LITIG.GUIDE, 81 (2013), https://www.fjc.gov/sites/default/ files/2014/FSIAGuide2013.pdf [https://perma.cc/BW5Q-9ZEJ] (explaining increase of cases, especially those against Cuba, after adoption of exception). 17 See 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (deciding when terrorism exception applies). 170 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV arguing that an extrajudicial killing occurred, the requisite elements for an extrajudicial killing must first be proven.18 Then, the plaintiff must also prove that the state committed the killing when it was a state sponsor of terrorism.19 It is not uncommon for a foreign sovereign to be sued in a United States court, fail to appear despite being properly served, and have a default

The court shall hear a claim under this section if the foreign state was designated as a state sponsor of terrorism at the time the act described in paragraph (1) occurred, or was so designated as a result of such act, and, subject to subclause (II), either remains so designated when the claim is filed under this section or was so designated within the 6- month period before the claim is filed under this section.

Id.; see also Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1048 (D.C. Cir. 2014) (“Congress aimed to prevent state sponsors of terrorism . . . from escaping liability for their sins”); State Sponsors of Terrorism, U.S. DEP’T OF ST., https://www.state.gov/j/ct/list/c14151.htm (last visited Mar. 20, 2019) [https://perma.cc/YK6Q-TDYY] (listing state sponsors of terrorism). Currently, North Korea, Iran, Sudan, and Syria, are the only state sponsors of terrorism. State Sponsors of Terrorism, supra note 17. 18 See 28 U.S.C. § 1605A(h)(7) (stating extrajudicial killing definition is codified in Torture Victim Protection Act of 1991); Torture Victim Protection Act of 1991 § 3, 28 U.S.C. § 1350 (1992) (defining extrajudicial killing).

[T]he term extrajudicial killing means a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples. Such term, however, does not include any such killing that, under international law, is lawfully carried out under the authority of a foreign nation.

28 U.S.C. § 1350 (internal quotations omitted). See Kim, 774 F.3d at 1050–51 (explaining need for evidence of extrajudicial killings). “Maltreatment is actionable under the FSIA only if purposeful and particularly harsh and that killings are prohibited only if they occur outside the limits of the normal legal process.” Id. at 1050. Thus, a plaintiff needs to show sufficient evidence that the killing was done by the government without a formal legal process. Id. at 1051; see also Mamani v. Berzaín, 654 F.3d 1148, 1155 (11th Cir. 2011) (finding no showing of extrajudicial killing). Plaintiffs must produce sufficient facts that the killing was deliberately committed by the government. Mamani, 654 F.3d at 1155; see also Shoham v. Islamic Republic of Iran, No. 12-cv- 508, 2017 U.S. Dist. LEXIS 84119, at *34–37 (D.D.C. June 1, 2017) (finding Iran not entitled to sovereign immunity as rock throwing was deemed as extrajudicial killing). 19 See 28 U.S.C. § 1605A(a)(2)(A)(i)(I) (approved Nov. 8, 2019) (requiring state sponsor of terrorism); see also Krishnadev Calamur, Who’s On the List of State Sponsors of Terrorism, and Why, NPR (Apr. 15, 2015, 12:26 PM), https://www.npr.org/sections/thetwo-way/2015/04/15 /399809412/whos-on-the-list-of-state-sponsors-of-terrorism-and-why [https://perma.cc/8LJH- LZZ5] (discussing nations considered state sponsors of terrorism and rationale for why they are listed). In 2015, President Obama removed Cuba as a state sponsor of terrorism. Calamur, supra note 19. “Cuba was previously accused by the State Department of being a safe haven for armed left-wing groups from Columbia and Spain . . . there was no indication that the Cuban government provided weapons or paramilitary training to terrorist groups.” Id. (internal quotation marks omitted). 2020] EXTRAJUDICIAL KILLINGS 171 judgment entered against them.20 Whereas a default judgment might seem like an agreeable outcome to the plaintiff, it actually requires the federal court to inspect the claim for jurisdiction before attempting to seek the default judgment.21 For that reason, courts always have to determine if jurisdiction is proper, and if the claim is being enforced against a foreign sovereign under the terrorism exception of the FSIA, the court must determine if that exception even applies.22 Despite the fact that a default

20 See FED.R.CIV. P. 55(b)(1) (entailing default judgment); see e.g. Vera v. Republic of Cuba, 91 F. Supp. 3d 561, 563 (S.D.N.Y. 2015) (noting prior default judgments granted to plaintiffs); McCarthy v. Republic of Cuba, 354 F. Supp. 2d 1347, 1347-48 (S.D. Fla. 2005) (granting default judgment on sixty-seven million dollar award for plaintiff whose husband was extrajudicially killed); Colvin v. Syrian Arab Republic, 363 F. Supp. 3d 141, 146 (D.D.C. 2019) (understanding default judgment entered against Syria for failing to appear); see also Laurel Pyke Malson et al., The Foreign Sovereign Immunities Act: 2009 Year in Review, CROWELL &MORING LLP, 36 (2010), https://www.crowell.com/files/The-Foreign-Sovereign-Immunities-Act-2009-Year-in- Review.pdf [https://perma.cc/CBF6-96TD] (explaining reasoning behind courts granting default judgments). Default judgments “are not uncommon in foreign sovereign litigation, as foreign states often choose to ignore claims asserted against them in U.S. courts, for political, economic, practical, or other reasons.” Malson, supra note 20. 21 See Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 287 (2d Cir. 2011) (requiring courts to consider subject matter jurisdiction sua sponte); see also Coll. Standard Magazine v. Student Ass’n of State Univ. of N.Y., 610 F.3d 33, 35 (2d Cir. 2010) (refusing to grant relief if there is lack of jurisdiction); Hawley v. Murphy, 736 A.2d 268, 271 (Me. 1999) (finding default judgment may not be enforced if court does not have jurisdiction). “[A]n entry of default against an individual does not serve as a bar to that individual’s right to challenge the subject matter jurisdiction of the court.” Hawley, 736 A.2d at 271. 22 See 28 U.S.C. § 1330(a) (1976) (authorizing courts to have jurisdiction against foreign states).

The district courts shall have original jurisdiction without regard to amount in controversy of any nonjury civil action against a foreign state as defined in section 1603(a) of this title [28 USCS § 1603(a)] as to any claim for relief in personam with respect to which the foreign state is not entitled to immunity either under sections 1605- 1607 of this title [28 USCS §§ 1605-1607] or under any applicable international agreement.

Id. (alteration in original); see Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 489 (1983) (explaining 28 U.S.C. § 1330(a) with relation to FSIA). The FSIA allows suits to be brought against foreign sovereigns in either state or federal court. Verlinden B.V., 461 U.S. at 489.

[FSIA] guarantees foreign states the right to remove any civil action from a state court to a federal court . . . . The Act also provides that any claim permitted under the Act may be brought from the outset in federal court. If one of the specified exceptions to sovereign immunity applies, a federal district court may exercise subject-matter jurisdiction under § 1330(a); but if the claim does not fall within one of the exceptions, federal courts lack subject-matter jurisdiction. In such a case, the foreign state is also ensured immunity from the jurisdiction of state courts by § 1604.

Id.; see Mwani v. Bin Laden, 417 F.3d 1, 15 (D.C. Cir. 2005) (reasoning if no statutory exception applies then court does not have subject matter jurisdiction). 172 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV judgment was already awarded, the plaintiff will not have standing if the court does not have subject matter jurisdiction.23 If a defendant would like to remove the default judgment, they have to argue to set the entry of default aside.24 In addition to the jurisdiction requirement, under the FSIA, a default judgment will not be granted unless the plaintiff presents satisfactory evidence to support their claim or right to relief.25

23 See case cited supra note 21 and accompanying text (discussing need to inspect claims for jurisdiction); see also Vera, 867 F.3d at 320 (concluding that Full Faith and Credit Act does not establish jurisdiction under § 1331(a)); Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495 (1st Cir. 2003) (“[F]ederal courts are powerless to act in the absence of subject matter jurisdiction . . . .”). 24 See Mary Kay Kane, Suing Foreign Sovereigns: A Procedural Compass, 34 STAN.L.REV. 385, 395 (1982) (stating requirements for defendants who want to set aside entry of default).

[F]our elements support a showing of good cause: (1) there is some excuse for allowing the default; (2) a meritorious defense to the action exists; (3) the plaintiff will not be seriously prejudiced if the default is set aside; and (4) the motion was made promptly upon learning of the default entry.

Id. 25 See 28 U.S.C. § 1608(e) (1976) (prohibiting default judgment unless claimant establishes right to relief); see also Owens v. Republic of Sudan, 864 F.3d 751, 785 (D.C. Cir. 2017) (providing evidence standard similar to Fed. R. Civ. P. 55(d)). “A default judgment may be entered against the United States, its officers, or its agencies only if the claimant establishes a claim or right to relief by evidence that satisfies the court.” FED.R.CIV. P. 55(d). The Owens court reasoned that a “lenient standard is particularly appropriate for a FSIA terrorism case, for which firsthand evidence and eyewitness testimony is difficult or impossible to obtain from an absent and likely hostile sovereign.” 864 F.3d at 785; see Lasheen v. Embassy of the Arab Republic of Egypt, 625 Fed. App’x 338, 340 (9th Cir. 2015) (finding no abuse of discretion in entering default judgment because evidence was satisfactory); Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1046 (D.C. Cir. 2014) (reconciling unclear standard of what quality of evidence must be produced); Compania Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (“[E]stablish entitlement to relief by providing satisfactory evidence as to each element of the claims upon which relief was sought”); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir. 1994) (reasoning plaintiff’s allegations should be supported by evidence but no evidentiary hearing requirement); Alameda v. Sec’y of Health, Educ. & Welfare, 622 F.2d 1044, 1048 (1st Cir. 1980) (“the quantum and quality of evidence that might satisfy a court can be less than that normally required.”); but cf. Clodfelter v. Republic of Sudan, 720 F.3d 199, 210 (4th Cir. 2013) (differentiating from custom of analyzing plaintiff’s prima facie case for satisfactory evidence). “[A] district court may properly take a close look at a plaintiff’s case” when determining if the plaintiff met the satisfactory evidence burden. Clodfelter, 720 F.3d at 210; see Saludes v. Republica de Cuba, 577 F. Supp. 2d 1243, 1246 (S.D. Fla. 2008) (allowing courts to accept plaintiff’s “uncontroverted evidence” to establish claim of relief against foreign states); Joseph M. Terry, Comment, Jurisdictional Discovery Under the Foreign Sovereign Immunities Act, 66 U. CHI.L.REV. 1029, 1042 (1999) (explaining high evidentiary burden is difficult for plaintiff’s to prove statutory exceptions apply). “Plaintiffs are often unable to prove an exception to the FSIA without significant discovery. Proof of an exception to immunity is highly fact dependent and may require evidence that is in the exclusive possession of defendants.” Terry, supra note 25, at 1042. 2020] EXTRAJUDICIAL KILLINGS 173

Judgments might not be enforced in federal court despite the Full Faith and Credit Clause of the United States Constitution.26 The Full Faith and Credit Clause will not bind a federal court to a state court’s finding of jurisdiction.27 For example, if a state court did not have subject matter jurisdiction when entering a default judgment, the federal court will not enforce the judgment.28 In Sullivan v. Republic of Cuba, the court affirmed the dismissal of the action because Sullivan did not sufficiently prove that Cuba’s conduct fell under the FSIA terrorism exception, resulting in a lack of jurisdiction over Cuba.29 However, the court assumed arguendo, that the Full Faith and

26 See U.S. CONST. art. IV, § 1 (“Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State.”); see also Nevada v. Hall, 440 U.S. 410, 421 (1979) (“A judgment entered in one State must be respected in another provided that the first State had jurisdiction over the parties and the subject matter.”); V.L. v. E.L., 136 S. Ct. 1017, 1020 (2016) (analyzing when states can and cannot abide by Full Faith and Credit Clause). 27 See Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n., 455 U.S. 691, 705 (1982) (requiring inquiry into jurisdiction standing of court’s judgment). “[B]efore a court is bound by the judgment rendered in another State, it may inquire into the jurisdiction basis of the foreign court’s decree. If that court did not have jurisdiction over the subject matter or the relevant parties, full faith and credit need not be given.” Id.; see also Durfee v. Duke, 375 U.S. 106, 110 (1963) (“[A] judgment of a court in one State is conclusive upon the merits in a court in another State only if the court in the first State had power to pass on the merits – had jurisdiction, that is, to render the judgment.”); Vera, 867 F.3d at 320 (rejecting argument that Full Faith and Credit Act establishes jurisdiction under § 1331(a)).

[T]he Full Faith and Credit Act, which requires state court judgments to receive the same credit, validity, and effect in every other court in the United States, has no bearing on the question of whether a district court has subject matter jurisdiction to hear a claim . . . [A]n attempt to obtain a federal judgment on the strength of a state court judgment is not a case arising under the Constitution, laws, or treaties of the United States that would trigger federal question jurisdiction.

Vera, 867 F.3d at 320 (citation omitted). 28 See Jerez v. Republic of Cuba, 775 F.3d 419, 422 (D.C. Cir. 2014) (“[A] court asked to enforce a default judgment must entertain an attack on the jurisdiction of the court that issued the judgment. If it finds that the issuing court lacked jurisdiction, it must vacate the judgment.”); see also Bell Helicopter Textron, Inc. v. Islamic Republic of Iran, 734 F.3d 1175, 1181 (D.C. Cir. 2013) (“A judgment remains void even after final judgment if the issuing court lacked subject-matter jurisdiction, regardless of whether there existed an ‘arguable basis’ for jurisdiction.”). 29 See Sullivan v. Republic of Cuba, 891 F.3d 6, 9 (1st Cir. 2018) (“The Republic of Cuba is presumptively immune from suit unless Sullivan can prove that its alleged conduct falls under one of the exceptions specified in the FSIA.”).

Sullivan argues that the district court erred in dismissing her complaint because the Maine Superior Court had expressly found that the terrorism exception to the FSIA applies to the alleged extrajudicial killing of her father. Sullivan asserts that by “‘looking behind’ the factual findings of the Maine Judgment and determining . . . that there was no evidence of an extra-judicial killing,” the district court violated the Full Faith and Credit Act (“FFCA”) . . . which requires “judicial proceedings” to be given “the same 174 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Credit Clause applied and the district court’s finding of subject matter jurisdiction under FSIA was valid.30 Through its analysis, the court explained that the dismissal of the case was proper under the FSIA for lack of subject matter jurisdiction.31 As a result of its reasoning, the court found that Sullivan produced insufficient evidence to establish that the FSIA terrorism exception applied.32 The court even refused to lower the high

full faith and credit in every court within the United States . . . as they have by law or usage in the courts of such State, Territory or Possession from which they are taken.” We find no error and affirm the dismissal of this action.

Id. at 9–10 (alterations in original) (internal citation omitted); see Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 443 (1989) (explaining how FSIA provides jurisdiction to sue foreign states in U.S. courts). “[The FSIA] provides the sole basis for obtaining jurisdiction over a foreign state in the courts of this country . . . .” Argentine Republic, 488 U.S. at 443. 30 See Sullivan, 891 F.3d at 10 (attempting to find valid argument that district court had proper jurisdiction). The court asserted that Sullivan’s best argument was that full faith and credit must be given because Maine Superior Court awarded her a default judgment. Id. This argument, however, would still fail because default judgments can be attacked on the grounds of subject matter jurisdiction. Id. The court also relied on Me. R. Civ. P. 12(h)(3) which states, “[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.” Id. As a result, “even if the Maine Superior Court’s default judgment were to be accorded full faith and credit, a federal court would not be precluded from determining, de novo, whether the state court had subject matter jurisdiction to enter that judgment.” Id. The court used the decisions in Vera and Underwriters National Assurance Co., to find that when a matter is being brought under the FSIA, “as a matter of federal law, the FFCA [Full Faith and Credit Act] does not apply to default judgments rendered in excess of the court’s subject matter jurisdiction.” Id.; see Underwriters Nat’l Assurance Co., 455 U.S. at 705 (requiring inquiry into jurisdictional basis of judgments). “If that court did not have jurisdiction over the subject matter . . . full faith and credit need not be given.” Sullivan, 891 F.3d at 10 (citing Underwriters Nat’l Assurance Co., 455 U.S. at 705); see Vera, 867 F.3d at 321 (discussing proper subject matter jurisdiction). As a result, the Sullivan court held that the federal district court is permitted to “independently review whether Sullivan’s case fell within the terrorism exception to the FSIA,” allowing it to determine if jurisdiction is valid. 891 F.3d at 10. 31 See Sullivan, 891 F.3d at 11 (determining whether dismissal was proper). The court reviewed “the district court’s findings of fact for clear error and its legal conclusions de novo.” Id. Acts of terrorism, i.e. extrajudicial killings, allow plaintiffs to sue foreign states under the terrorism exception of FSIA if sufficient evidence is presented. Id. The court held the dismissal of the case for lack of subject matter jurisdiction was proper as the application of the terrorism exception was not sufficiently proven. Id. at 8. 32 See id. at 11 (describing evidence required to prove extrajudicial killing). However, Sullivan must prove that Cuba extrajudicially killed her father and that Cuba was a state sponsor of terrorism. Id. The court inferred that the evidence Sullivan produced, at best, showed that her father was captured and incarcerated by Cuba, not killed. Id. The Maine Superior Court erred in awarding default judgment despite no evidence of a deliberate killing, which it was not authorized to do under the FSIA or the Torture Victim Protection Act. Id. Further, Cuba was not even designated as a state sponsor of terrorism in 1963, which was when Geoffrey Sullivan was legally declared dead by the United States Social Security Administration. Id. at 8. 2020] EXTRAJUDICIAL KILLINGS 175 evidentiary standard of proving an extrajudicial killing to award Sullivan damages.33 Despite the unfair outcome to Sullivan, the court appropriately resolved the issue at bar by applying existing case precedent.34 When applying the two-prong test to determine if the terrorism exception to the FSIA applied, the court correctly held that Sullivan did not produce sufficient evidence to find that Cuba extrajudicially killed her father.35 As a result, the court properly dismissed the case for lack of subject matter jurisdiction and held that it was not bound by the Full Faith and Credit Act.36 While it is

33 See id. at 12 (finding lack of subject matter jurisdiction as terrorism exception does not apply). The court rejected Sullivan’s suggestion to lower the evidentiary standard of producing evidence that an extrajudicial killing occurred. Id. at 11. The court stated Sullivan misread Kim, which supported a more lenient evidentiary standard. Id. The Kim court stated, “[r]equiring a plaintiff to produce direct, first-hand evidence of the victim’s torture and murder would . . . thwart the purpose of the terrorism exception: holding state sponsors of terrorism accountable for torture and extrajudicial killing.” Kim v. Democratic People’s Republic of Korea, 774 F.3d 1044, 1045 (D.C. Cir. 2014). The Sullivan court found that even though Sullivan was not required to produce direct firsthand evidence that her father was murdered, she still did not produce enough evidence. 891 F.3d at 12. “Sullivan failed to provide any evidence, circumstantial or otherwise, that the Cuban government killed her father after keeping him incarcerated for at least twenty years, let alone that Cuba acted extrajudicially.” Id. 34 See Sullivan, 891 F.3d at 11–12 (dismissing suit for lack of subject matter jurisdiction); see also Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 439 (1989) (providing that jurisdiction over foreign sovereign is only proper under FSIA); Vera, 867 F.3d at 320 (determining jurisdiction is still required when enforcing state judgment); Jerez v. Republic of Cuba, 775 F.3d 419, 422–23 (D.C. Cir. 2014) (clarifying full faith and credit is not binding on federal courts regarding determination of jurisdiction); Kim, 774 F.3d at 1050–51 (requiring some type of evidence supporting foreign sovereign killing of another without due process); Mamani v. Berzain, 654 F.3d 1148, 1155 (11th Cir. 2011) (relying on deliberate, not accidental, evidence for extrajudicial killing); Walters v. Indus. & Commercial Bank of China, Ltd., 651 F.3d 280, 287 (2d Cir. 2011) (explaining court requirement to always evaluate whether subject matter jurisdiction is proper). 35 See Sullivan, 891 F.3d at 11–12 (holding that claim will fail without showing of sufficient evidence that exception applies); see also Owens v. Republic of Sudan, 864 F.3d 751, 779 (D.C. Cir. 2017) (allowing default judgment only if claimant establishes evidence satisfying to court); Lasheen v. Embassy of The Arab Republic of Egypt, 625 F. App’x 338, 340 (9th Cir. 2015) (allowing default judgment as plaintiff alleged satisfactory evidence); Kim, 774 F.3d at 1050–51 (recognizing evidence supporting allegation that extrajudicial killing was committed); Mamani, 654 F.3d at 1155 (requiring evidence of intentional extrajudicial killing); Compania Interamericana Exp.-Imp., S.A. v. Compania Dominicana de Aviacion, 88 F.3d 948, 951 (11th Cir. 1996) (mandating satisfactory evidence for each wanted relief); Commercial Bank of Kuwait v. Rafidain Bank, 15 F.3d 238, 242 (2d Cir. 1994) (requiring allegations to be supported by evidence); Saludes v. Republica de Cuba, 577 F. Supp. 2d 1243, 1246 (S.D. Fla. 2008) (permitting affidavit as partial proof of plaintiff’s evidence). 36 See Sullivan, 891 F.3d at 12 (dismissing case for lack of subject matter jurisdiction); see also Underwriters Nat’l Assurance Co. v. N.C. Life & Accident & Health Ins. Guar. Ass’n., 455 U.S. 691, 705 (1982) (allowing courts to not award Full Faith and Credit if prior court was without jurisdiction); Vera, 867 F.3d at 320 (refusing to apply Full Faith and Credit Act if jurisdiction is 176 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV unfortunate that Sullivan did not obtain relief for her father’s death, there must be a standard to hold a foreign sovereign accountable for alleged horrendous acts.37 The crux of this case turned on whether there was sufficient evidence of the extrajudicial killing that warranted Sullivan to be awarded the default judgment.38 This is because the only way for a United States court to have jurisdiction over Cuba is for Sullivan to produce sufficient evidence that her father was extrajudicially killed, as required under the terrorism exception of the FSIA.39 The court relied on precedent to determine if the evidence was sufficient and held that the evidence produced was inadequate to show Geoffrey Sullivan was killed by Cuba, because it merely speculated how he died and did not prove that Cuba actually caused his death.40 This not proper); Jerez, 775 F.3d at 423 (determining default judgments are not bound by Full Faith and Credit Act if improper jurisdiction); Hawley v. Murphy, 736 A.2d 268, 271 (Me. 1999) (finding no bar to subject matter jurisdiction challenge despite default judgment entered). 37 See § 1605A(a)(1) (holding foreign states accountable for acts of extrajudicial killings); see also Sullivan, 891 F.3d at 7–8 (describing Sullivan’s struggle to learn what happened to her father). “[Sullivan] has . . . dedicated much of her life to discovering the truth about [her father’s] disappearance, including contacting dozens of federal agencies and officials and filing a Freedom of Information Act . . . request.” Sullivan, 891 F.3d at 7–8 (internal quotation omitted). The court required Sullivan to meet the test under § 1605A(a)(1). Id. at 11. It expected Sullivan to show proof “that (1) Cuba committed an ‘extrajudicial killing,’ which is defined . . . as ‘a deliberated killing not authorized by a previous judgment pronounced by a regularly constituted court,’ and that (2) Cuba was ‘designated as a state sponsor of terrorism at the time the [extrajudicial killing] occurred’ . . . .” Id. (citations omitted) (alteration in original). 38 See Sullivan, 891 F.3d at 9 (reviewing federal district court’s holding). The court found that Sullivan failed to provide evidence that proved Geoffrey Sullivan was killed deliberately by Cuba. Id. at 11. The court found “[t]he record . . . empty of ‘any evidence that [Sullivan’s] father was the victim of an intentional killing by Cuba and that any such killing was committed in the absence of legal process.’” Id. (quoting Sullivan v. Republic of Cuba, 289 F. Supp. 3d 231, 244 (D. Me. 2017), aff’d 891 F.3d 6 (1st Cir. 2018)) (alteration in original). 39 See Sullivan, 289 F. Supp. 3d at 244–45 (concluding insufficient evidence presented to apply terrorism exception). The court found that, “[e]ven accepting as true Sullivan’s uncontroverted evidence, which is mired in multiple levels of hearsay and often relies on speculation, she has shown, at best, that her father was incarcerated in Cuba after the date when Cuba was placed on the state sponsors of terrorism list. Id.; see Deutsch, supra note 4, at 903 (describing process of determining liability under FSIA). “First, plaintiffs must satisfy the jurisdictional prerequisite by establishing that the conditions of one of the relevant exceptions to foreign sovereign immunity are met. Second, liability must be proven for the specific relief that is sought . . . .” Deutsch, supra note 4, at 903. 40 See Sullivan, 289 F. Supp. 3d at 243–44 (comparing Sullivan’s evidence to precedent). The court states that an error occurs when there is a “clearly erroneous factual finding” and such factual finding is relied upon, as in Vera. Id. at 243 (citing Vera, 867 F.3d at 317). The court also permits a somewhat “lenient” approach when determining if evidence is sufficient for the terrorism exception of FSIA, but it cannot be too lenient. Id. at 244.

In Han Kim v. Democratic People’s Republic of Korea . . . [i]n determining that the plaintiffs had presented sufficient evidence to support their claim, the appeals court 2020] EXTRAJUDICIAL KILLINGS 177 requirement is at an appropriate threshold because it would be unfair to sue foreign sovereigns for acts that cannot be supported by sufficient evidence.41 The court’s decision may have an effect on future cases, as any prospective plaintiff (1) must ensure that they have sufficient evidence to prove an extrajudicial killing occurred, and (2) that the accused country is a state sponsor of terrorism.42 If Sullivan appealed this to the Supreme Court, she would have needed to locate additional evidence that supported her argument that Cuba extrajudicially killed her father during the time Cuba was a state sponsor of terrorism.43 Thus, despite the difficulty in finding

stated that evidentiary standards must necessarily be relaxed where a foreign sovereign like North Korea has “made [the victim] unavailable to testify on his own behalf, refused to appear in court and subject itself to discovery, and is known to intimidate defectors and potential witnesses.”

Id. (quoting Kim, 774 F.3d at 1048) (second alteration in original). The Sullivan court further determined that the plaintiffs in Kim presented “circumstantial evidence that their relative had been tortured and killed,” while Sullivan did not do so. 289 F. Supp. 3d at 234. Sullivan only produced evidence that Geoffrey Sullivan “was shot down over Cuba,” and was “imprisoned by the Castro regime.” Id. 41 See Sullivan, 289 F. Supp. 3d at 245 (stating Sullivan’s failure to provide sufficient evidence of extrajudicial killing).

[S]ullivan’s failure to present any evidence that her father was extrajudicially killed by Cuba would mean that she has failed to “establish her claim or right to relief by evidence satisfactory to the court.” This Court recognizes that some degree of leniency in assessing evidentiary burdens is warranted in a situation, such as this one, in which a plaintiff has understandable difficulty getting information out of a secretive and hostile nation.

Id. (original alterations omitted) (citation omitted); see also Howe, supra note 2 (explaining difficulty on winning claim under FSIA’s terrorism exception); but cf. Terry, supra note 25, at 1055–56 (providing alternative for plaintiffs to produce sufficient evidence). Providing that plaintiffs should be required to prove “some . . . evidence exists” and that through discovery, more evidence will be found and will make it easier for the plaintiff to establish their case. Terry, supra note 25, at 1056. 42 See Sullivan, 289 F. Supp. 3d at 237–39 (explaining evidence that was later deemed insufficient). The court emphasized that the second and third-hand reports, the heavily redacted government documents, and a Social Security Administration document declaring Geoffrey Sullivan dead in 1963, was not sufficient to meet the threshold needed to prove that Cuba extrajudicially killed him. Id.; see also Elsea, supra note 2, at 2 (describing difficulty of success against designated State sponsors of terrorism); Howe, supra note 2 (explaining Supreme Court denial to be lenient with FSIA terrorism exception); Calamur, supra note 19 (explaining why Cuba was removed from state sponsor of terrorism list). 43 See Sullivan, 289 F. Supp. 3d at 245–46 (stating court cannot find extrajudicial killing with evidence presented). “[T]he record before this Court lacks any evidence . . . that Geoffrey Sullivan was deliberately subjected to poor conditions that caused his death. Nor can this Court simply infer from his detention that Geoffrey Sullivan was killed in the absence of legal process.” Id. Sullivan would need to find evidence that Geoffrey Sullivan was killed by Cuba when Cuba was a designated state sponsor of terrorism in 1982. Sullivan, 891 F.3d at 11. 178 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV sufficient evidence to prove a foreign sovereign committed an extrajudicial killing, this decision will help future plaintiffs gauge how much evidence is sufficient to be awarded judgment under the FSIA terrorism exception.44 Sufficient evidence must be presented to establish that a sovereign nation extrajudicially killed a United States citizen. Without such evidence, courts will not have the proper subject matter jurisdiction to enforce judgments against sovereign states. The Sullivan court correctly found that the FSIA and its exceptions do not provide subject matter jurisdiction over Cuba. Despite the high standard of evidence required, it is justifiable to hold proper sovereigns accountable for their actions when there is adequate proof.

Stephanie M. Sader

44 See Malson, supra note 20, at 37 (discussing difficulty foreign sovereigns have in overturning default judgments); see also Kane, supra note 24, at 415 (criticizing plaintiff and defendant burdens of proof).

Congress envisioned a more complex scheme in which the foreign state merely has the burden to produce prima facie evidence of immunity . . . [and] the plaintiff must show that the state’s activities fall into one of the statutory exceptions to immunity, and the state retains the ultimate burden of proving immunity. How these rather artificial shifting burdens will operate is yet to be seen.

Kane, supra note 24, at 415–16. CONSTITUTIONAL LAW—EIGHTY-SIX THE SIXTH AMENDMENT: THE SIXTH AMENDMENT RIGHT TO COUNSEL APPLIES TO PRE- INDICTMENT PLEA NEGOTIATIONS TOO— TURNER V. UNITED STATES, 885 F.3D 949 (6TH CIR. 2018) (EN BANC).

The Sixth Amendment to the Constitution guarantees certain protections to defendants during critical stages of criminal proceedings.1 These protections, however, do not extend to the defendant until the prosecution has commenced.2 In Turner v. United States,3 the United States Court of Appeals for the Sixth Circuit, sitting en banc, considered whether the Sixth Amendment right to counsel extended to pre-indictment plea negotiations.4 The court held that the Sixth Amendment right to counsel extends to a criminal defendant only once judicial proceedings have commenced, and thus, does not encompass pre-indictment plea negotiations.5

1 See U.S. CONST. amend. VI (assigning inalienable rights in criminal proceedings).

Id. 2 See Turner v. United States, 885 F.3d 949, 951 (6th Cir. 2018) (en banc) (articulating circumstances under which Sixth Amendment protections attach). 3 885 F.3d 949 (6th Cir. 2018) (en banc). 4 See id. at 952 (asserting one of two issues addressed in case). Unaddressed in this case comment, the court also decided “whether an indictment in a state prosecution triggers a criminal defendant’s Sixth Amendment right to counsel” with respect to “forthcoming federal charges based on the same underlying conduct.” Id. The court held that the state charge does not trigger the right to counsel in the impending federal charge because the right to counsel is “offense specific” and “cannot be invoked once for all future prosecutions.” Id. at 954 (quoting McNeil v. Wisconsin, 501 U.S. 171, 175 (1991)). 5 See Turner, 885 F.3d at 951 (announcing holding of case). 180 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

In 2007, John Turner robbed four Tennessee businesses at gunpoint.6 He was arrested for these crimes by a Memphis police officer who also served as a member of a joint federal-state task force.7 With respect to the state charges, Turner was indicted on multiple counts of aggravated robbery, and he hired an attorney to represent him on these charges, which included representation during the plea negotiations with the state prosecutors.8 During the state proceedings, it became clear that the United States Attorney’s Office planned to bring federal charges, including those related to robbery and firearm possession, against Turner as part of the federal-state task force.9 The Assistant United States Attorney (“AUSA”) offered Turner’s attorney a plea of fifteen years.10 The AUSA stipulated, however, that the offer “would expire if and when a federal grand jury indicted Turner.”11 It is disputed, but not of consequence to the issue at hand, whether Turner refused the plea deal once it was offered or if he was even presented with the deal at all.12 The grand jury in the Western District of Tennessee

6 See id. (outlining underlying crimes Turner committed); see also Brief for the United States in Opposition at *5–6, Turner v. United States, 885 F.3d 949 (6th Cir. 2018) (No. 18-106), 2018 Lexis 4602 (businesses included dry cleaner, beauty shop, pizza parlor, and convenience store). 7 See Turner, 885 F.3d at 951 (iterating basis for federal and state cases); Turner v. United States, 848 F.3d 767, 768 (6th Cir. 2017), aff’d en banc, 885 F.3d 949 (6th Cir. 2018) (describing task force). The Safe Streets Task Force (SSTF) was “a joint federal-state task force created to target and prosecute individuals involved in serious crimes.” Turner, 848 F.3d at 768 n.1. The task force was the result of a Memorandum of Understanding between the FBI and various Tennessee city and county police departments. Id. The memorandum articulated that “the criteria for determining whether to prosecute a particular violation in state or federal court will focus upon achieving the greatest overall benefit to law enforcement and the jurisdiction will be resolved through discussion among all investigative agencies and prosecutive [sic] entities having an interest in the matter.” Id. 8 See Turner, 885 F.3d at 951 (describing procedural history); Turner, 848 F.3d at 768 (discussing Turner’s retention of private attorney). This case is not concerned with Turner’s right to counsel as an indigent defendant as he could afford one and thus did not need the state to appoint him an attorney. Turner, 848 F.3d at 768. While not at issue in the case-in-chief, Turner was offered and then accepted a plea deal on the state charges that resulted in a sentence of eight or nine years. Id. 9 See Turner, 885 F.3d at 951–52 (stating federal firearm charges alone carry mandatory minimum of eighty-two years’ imprisonment). 10 See id. at 952 (chronicling proceedings). The AUSA planned to bring federal charges under the Hobbs Act, which criminalizes interference with commerce by threats or violence, and for using a firearm during a crime of violence for each of the four robberies. Turner, 848 F.3d at 769. 11 See Turner, 885 F.3d at 952 (setting scope of plea offer). The offer was extended at some point during the summer of 2008 and was to expire around September 15, 2008 when the charges were presented to the grand jury. Turner, 848 F.3d at 769. It is important to note that the low standard for federal indictment practically cementing Turner’s indictment. FED.R.CRIM. P. 6. 12 See Turner, 885 F.3d at 952 (highlighting sub-matter of case not at issue in case). 2020] EIGHTY-SIX THE SIXTH AMENDMENT 181 indicted Turner in 2008.13 Turner subsequently hired a new attorney who helped him negotiate a plea deal of twenty-five years imprisonment.14 In 2012, Turner filed a “motion alleging that his original attorney rendered constitutionally ineffective assistance during [his] federal plea negotiations.”15 The district court denied his motion, holding that Turner’s Sixth Amendment right to counsel had not yet attached during his pre- indictment federal plea negotiations; thus, he had no standing to bring a claim for ineffective assistance of counsel.16 On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the lower court’s decision.17 Turner filed a petition for rehearing en banc, which the court granted.18 The court reaffirmed the ruling and held that the Sixth Amendment right to counsel attaches only at or after the initiation of judicial criminal proceedings.19 The right does not attach at any point before the initiation of adversarial judicial criminal proceedings, and therefore the Sixth

13 See id. (describing federal indictment). 14 See id. (explaining how Turner waived his right to file direct appeal as part of plea agreement). The ability to appeal is one of the differences between the original plea offer, which Turner would have preferred, and the one he received as a result of the expiration of the first plea offer. Id. Turner’s sentence will also be followed by three years of supervised release. Brief for the United States in Opposition, supra note 6, at *5. Turner was ultimately convicted on four counts of Hobbs Act robbery and one count of carrying and using a firearm during or in relation to a crime of violence. Id. at *4–5. 15 See U.S. CONST. amend. VI (stating basis for claim). The Sixth Amendment which states, “in all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence [sic],” was the basis for Turner’s constitutional claim. Id.; see 28 U.S.C. § 2255(a) (2019) (declaring motion Turner filed); Turner, 885 F.3d at 952 (stating motion was filed because of ineffective assistance of counsel). The code states in pertinent part: “[a] prisoner in custody under sentence of a court . . . claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution . . . may move the court which imposed the sentence to vacate, set aside or correct the sentence.” 28 U.S.C. § 2255(a). This type of appeal was not forfeited in Turner’s plea acceptance. Turner, 885 F.3d at 952. 16 See Turner, 885 F.3d at 952 (finding no constitutional issue); Turner v. United States, No. 2:12-cv-02266-SHM-dkv, 2015 U.S. Dist. LEXIS 190572, at *4 (W.D. Tenn. June 8, 2015) (expressing basis for denying claim). 17 See Turner, 885 F.3d at 952 (articulating procedural posture); Turner v. United States, 848 F.3d 767, 768 (6th Cir. 2017), aff’d en banc, 885 F.3d 949 (6th Cir. 2018) (affirming district court’s denial of evidentiary hearing). The same court decided both cases, one sitting en banc, the other as a panel. Turner, 885 F.3d at 952; Turner, 848 F.3d at 767. 18 See Turner, 885 F.3d at 952 (noting all sixteen circuit judges sat on panel). 19 See id. at 951 (refusing to overrule precedent). Judicial criminal proceedings commence by way of “formal charge, preliminary hearing, indictment, information, or arraignment.” Id. (quoting Kirby v. Illinois, 406 U.S. 682, 689 (1972)). Turner filed a petition for a writ of certiorari which was recently denied by the Supreme Court. Turner v. United States, 885 F.3d 949 (6th Cir. 2018), cert. denied, 139 S. Ct. 2740 (2019). 182 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Amendment right to counsel does not extend to pre-indictment plea negotiations.20 The Sixth Amendment, in the interest of protecting the most vulnerable peoples in the criminal justice system, broadly declares that “the accused” are entitled to “the Assistance of Counsel for his defence [sic]” in “all criminal prosecutions.”21 These cases often come up through the courts under a claim of ineffective assistance of counsel, but there can be no ineffective assistance of counsel if the right to counsel has yet to attach to the proceedings.22 In applying that right to various scenarios likely unimaginable by the Constitution’s drafters, the Supreme Court has sought to define key terms and form rules for when and in what instances the right to counsel does and does not attach.23 This right has been afforded to the criminally accused going as far back as the eighteenth century.24 The Supreme Court’s attachment rule is guided mostly by the “plain language of the [Sixth] Amendment” and identifies the key phases in a proceeding when the right to counsel attaches.25 This is “only at or after the

20 See Turner, 885 F.3d at 952–53 (highlighting that pre-indictment plea negotiations are not critical stage deserving of Sixth Amendment protection). 21 See U.S. CONST. amend. VI (declaring rights); Johnson v. Zerbst, 304 U.S. 458, 462–63 (1938) (emphasizing rights of life and liberty that Sixth Amendment protects); United States v. Moody, 206 F.3d 609, 618 (6th Cir. 2000) (Wiseman, J., concurring) (aiming to “protect defendants in critical stages of their prosecution”). “[The Sixth Amendment] embodies a realistic recognition of the obvious truth that the average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.” Zerbst, 304 U.S. at 462–63. 22 See Smith v. Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 433 (6th Cir. 2006) (“There can be a constitutional claim of ineffective assistance of counsel only at a stage of the proceedings when there is a right to counsel under the Sixth Amendment.”). In the inverse, the court specified that there can be no claim of constitutionally ineffective assistance of counsel where there is no right to counsel. Id. at 433 n.4. 23 See Pamela R. Metzger, Beyond the Bright Line: A Contemporary Right-to-Counsel Doctrine, 97 NW.U.L.REV. 1635, 1641 (2003) (articulating history and evolution of Sixth Amendment). 24 See Powell v. Alabama, 287 U.S. 45, 60–65 (1932) (discussing historical evolution of right); Gideon v. Wainwright, 372 U.S. 335, 344 (1963) (examining necessity of counsel in criminal proceedings); Laura K. Abel & Max Rettig, State Statutes Providing for a Right to Counsel in Civil Cases, 40 CLEARINGHOUSE REV. 245, 245–47 (2006) [https://perma.cc/P57W-28DU] (describing states’ gradual adoption and application of right to counsel). In the past, not all states permitted the right to all criminal prosecutions, sometimes it was limited to only the more serious crimes, and, further, sometimes only in capital cases. Powell, 287 U.S. at 73; Abel, supra note 24, at 245–47. The right now applies in federal and state cases alike for all criminal charges, save some misdemeanors, and even in some state civil matters, as well as family law and probate matters. Abel, supra note 24, at 245–47. 25 See, e.g. United States v. Gouveia, 467 U.S. 180, 187–89 (1984) (“right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated”); Kirby v. Illinois, 406 U.S. 682, 690–91 (1972) (necessitating scrutiny of every pretrial confrontation); Powell, 287 U.S. at 57 (articulating when and in what instances right to counsel attaches). 2020] EIGHTY-SIX THE SIXTH AMENDMENT 183 time that adversary judicial proceedings have been initiated against” someone, which includes a “formal charge, preliminary hearing, indictment, information, or arraignment.”26 In Gouveia, however, the Court warned that there may be some circumstances in which the right to counsel may attach prior to the formal initiation of judicial proceedings.27 In response, the right to counsel has expanded from its initial limitation of only applying at trial to applying in certain pretrial “trial-like confrontation[s].”28 This is because the dangers that initially gave birth to the right to counsel were found equally strong and deserving of protection in other critical stages such as post- indictment interrogations, post-indictment lineups, and the entry of guilty pleas.29 Courts have speculated as to whether this list is inclusive or exhaustive.30 In deciding whether to include pretrial proceedings under the Sixth Amendment’s umbrella, case law recommends an examination of any pretrial confrontation to determine whether the right to counsel is required in order to preserve the defendant’s rights.31

26 See Kirby, 406 U.S. at 688–89; Powell, 287 U.S. at 57 (providing specific examples of when right attaches). The Court in Powell further noted that failure to provide counsel at trial was also a violation of the Fourteenth Amendment’s Due Process Clause. 287 U.S. at 71. See United States v. Sikora, 635 F.2d 1175, 1181 n.4 (6th Cir. 1980) (suggesting plea bargaining is “judicial proceeding”). The Federal Rules of Criminal Procedure, which regulate plea bargains, grants judges ultimate supervision over plea bargains and it can be argued “that plea bargaining is itself a judicial proceeding in the sense contemplated by Kirby.” Id. 27 See Gouveia, 467 U.S. at 193 (Stevens, J., concurring) (“the right to counsel might under some circumstances attach prior to the formal initiation of judicial proceedings”). 28 See United States v. Ash, 413 U.S. 300, 338 (1973) (Brennan, J., dissenting) (holding Sixth Amendment right to counsel does not extend to photographic identifications). “[I]n order to be deemed ‘critical,’ the particular ‘stage of the prosecution’ under consideration must, at the very least, involve the physical ‘presence of the accused,’ at a ‘trial-like confrontation’ with the Government, at which the accused requires the ‘guiding hand of counsel.’” Id. 29 See Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 892 (3d Cir. 1999) (entertaining idea of expanding attachment issue in Third Circuit). “The right also may attach at earlier stages, when ‘the accused is confronted, just as at trial, by the procedural system . . . in a situation where the results of the confrontation might well settle the accused’s fate and reduce the trial itself to a mere formality.’” Id. (quoting Gouveia, 467 U.S. at 189). See Wade v. State, No. E2017-02177- CCA-R3-PC, 2018 Tenn. Crim. App. LEXIS 690, at *34 (Tenn. Crim. App. Sept. 12, 2018) (recognizing plea-bargaining process as critical stage in Tennessee). “[A] precise definition for what constitutes a critical stage does not exist in Tennessee,” which shows flexibility and uncertainty in the rule. Id. 30 See Kennedy v. United States, 756 F.3d 492, 493–94 (6th Cir. 2014) (postulating that both pre- and post-indictment plea negotiations deserve Sixth Amendment protection). “Had the Supreme Court erased the line between preindictment and postindictment proceedings for plea negotiations, it surely would have said so given its careful attention to the distinction for interrogations and lineups.” Id. at 494. 31 See United States v. Wade, 388 U.S. 218, 262 (1967) (Fortas, J., concurring) (suggesting defendants have Sixth Amendment protection at post-indictment lineups); but see Dr. John Olsson, Who Amended the Amendment?, 5 AKRON J. CONSTITUTIONAL L. & POL’Y 15, 22 (2014) (suggesting Kirby overruled Wade); see also Rothgery v. Gillespie Cty., 554 U.S. 191, 208 (2008) 184 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

Recently, the Supreme Court again extended the Sixth Amendment to encompass another critical stage of the prosecution: plea negotiations.32 But, in Kirby v. Illinois, the Supreme Court held that the Sixth Amendment did not extend to pre-indictment identification even though the same post- indictment lineup is treated as a critical stage requiring such protections.33 The Sixth Circuit follows the bright-line rule defined in Kirby and holds that the Sixth Amendment right to counsel does not attach until the “initiation of judicial criminal proceedings” and so the pre-indictment plea offer is not

(describing how Sixth Amendment attachment is determined); United States v. Ash, 413 U.S. 300, 313 (1973) (noting Court called for “examination” of event to determine defendant had Sixth Amendment protection); Kirby v. Illinois, 406 U.S. 682, 689–91 (1972) (determining right to counsel was result of careful evaluation of facts and circumstances). When determining whether there has been attachment, the critical question is “whether the machinery of prosecution was turned on,” and not by whom. Rothgery, 554 U.S. at 208. Rothgery implied that a prosecutorial action, such as filing information with the court, while not a critical stage, may still constitute attachment of the right to counsel. Id. at 212. See David C. Dearborn, “You Have the Right to an Attorney,” but Not Right Now: Combating Miranda’s Failure by Advancing the Point of Attachment Under Article XII of the Massachusetts Declaration of Rights, 44 SUFFOLK U. L. REV. 359, 363 (2011) (suggesting Sixth Amendment right to counsel attaches moment Miranda warnings are required). 32 See Missouri v. Frye, 566 U.S. 134, 144 (2012) (requiring right to counsel during plea negotiations to criminal defendants); Lafler v. Cooper, 566 U.S. 156, 162 (2012) (designating plea negotiations as critical stages deserving right to counsel). In these cases, though, the defendants were already indicted when they were offered their plea deal. Frye, 566 U.S. at 138; Lafler, 566 U.S. at 156. The Court in Frye highlighted that a significant amount of convictions end as a result of a plea entry which makes them a central part of the criminal justice system. 566 U.S. at 143. For many defendants, this makes the negotiation of a plea, and not the trial, the critical stage of the prosecution. Id. at 144. For those who accept a plea offer, the negotiation and acceptance of that plea is the only time at which assistance of counsel can be beneficial to them. Id. Additionally, post-indictment plea negotiations are protected by the right to counsel even if the negotiations have no effect on the fairness of the conviction. Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014) (stipulating neither Lafler nor Frye answered whether right to counsel attached in pre- indictment plea negotiations). 33 See Kirby, 406 U.S. at 690–91 (limiting scope of Sixth Amendment). When a suspect has yet to be “formally charged with a criminal offense, . . . the appropriate constitutional balance” is struck when “the right of a suspect to be protected from prejudicial procedures” is balanced against “the interest of society in the prompt and purposeful investigation of an unsolved crime.” Id. at 691. But see United States v. Sikora, 635 F.2d 1175, 1181 (6th Cir. 1980) (Wiseman, J., dissenting) (“right to counsel should begin with the commencement of plea bargaining in those rather unusual cases where plea bargaining precedes formal charges”). 2020] EIGHTY-SIX THE SIXTH AMENDMENT 185 deserving of constitutional protection.34 Many courts at all levels have hinted and urged for an expansion of the right to counsel.35 In Turner v. United States, the Sixth Circuit applied the precedent and upheld the Supreme Court’s established bright-line rule that the Sixth Amendment right to counsel does not extend to pre-indictment plea negotiations.36 The court reasoned that while plea negotiations are critical

34 See United States v. Moody, 206 F.3d 609, 615–16 (6th Cir. 2000) (following precedent, begrudgingly). The court writes extensively on its desire to stray from the precedent and urges the Supreme Court to revise the bright-line rule. Id. The court suggests that when a formal plea has been offered for a specific offense and a specific sentence, the “adverse positions of the government and suspect have solidified.” Id. “[I]t seems a triumph of the letter over the spirit of the law to hold that [the accused] had no right to counsel in his decision to accept or deny the offered plea bargain only because the government had not yet filed formal charges.” Id. at 616. 35 See United States v. Giamo, 665 F. App’x 154, 156–57 (3d Cir. 2016) (hinting right to counsel extends to pre-indictment negotiation of plea). While this case was ultimately decided under another question, the court held that the defendant could not prove he would have accepted the plea agreement as offered and overlooked the question of whether defendant’s attorney’s assistance at this stage, a pre-indictment plea negotiation, was required by the Sixth Amendment. Id. at 157; see Perry v. Kemna, 356 F.3d 880, 895–96 (8th Cir. 2004) (explaining that right to counsel may attach before government files charges); Roberts v. Maine, 48 F.3d 1287, 1290–91 (1st Cir. 1995) (determining when right to counsel attaches); United States v. Larkin, 978 F.2d 964, 969 (7th Cir. 1992) (suggesting right attaches prior to formal commencement if government’s focus switched from investigatory to accusatory). “By its very terms, [the Amendment] becomes applicable only when the government’s role shifts from investigation to accusation. For it is only then that the assistance of one versed in the ‘intricacies . . . of law,’ is needed . . . .” Moran v. Burbine, 475 U.S. 412, 430 (1986) (quoting United States v. Cronic, 466 U.S. 648, 656 (1984)). See Ex parte Burford, 7 U.S. 448, 453 (Cir. Ct., D. Penn 1806) (holding Sixth Amendment rights applied even though accused had not yet been formally charged); United States v. Moore, 26 F. Cas. 1308, 1309 (D. Pa. 1801) (“[A] ‘public prosecution,’ . . . is instituted and commenced when the party, by process, or otherways, is brought before a court or magistrate, and on information or proof is held to answer. The subsequent indictment is but a continuation of the prosecution so begun.”); Allen v. State, 10 Ga. 85, 90–91 (1851) (highlighting when rights attach to defendants’ pre-indictment); Alexis Berglund, Comment: Turner-ing over a New Leaf: Precharge Plea Negotiations as a Critical Stage for the Purpose of the Sixth Amendment Right to Counsel, 59 B.C. L. REV.E.SUPP. 188, 199 (2018) (“plea negotiation process is adversarial”).

[S]o soon as a party is charged with a crime and bound to answer, or committed for it, that it becomes then, a public prosecution, and that the indictment is but a continuation of it; and that from that stage of it he is entitled to compulsory process for his witnesses.

Allen, 10 Ga. at 91. 36 See Turner v. United States, 885 F.3d 949, 951 (6th Cir. 2017) (affirming precedent). But see Steven J. Mulroy, The Bright Line’s Dark Side: Pre-Charge Attachment of the Sixth Amendment Right to Counsel, 92 WASH.L.REV. 213, 241–42 (2017) (disregarding bright-line rule for broader, more workable rule). Mulroy proposed that the right attaches whenever a “prosecutor is involved in substantive communications with a defendant” including “pre-charge plea and other negotiations; subpoenaed grand jury testimony; pretrial depositions; . . . and similar situations.” Id. at 213. 186 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV stages of prosecution, they are still subject to the attachment rule.37 The court rejected attempts to soften the line between the “critical stage question” and the “attachment question” concluding that these inquiries must be kept distinct.38 These separate questions, while both important in determining whether an accused is entitled to counsel, are the reason that some post- indictment proceedings deserve protection and that same proceeding, occurring pre-indictment, is not entitled to protection.39 The court held steadfast in their application that the Sixth Amendment “attaches only at or after . . . adversary judicial proceedings

37 See Turner, 885 F.3d at 953 (differentiating facts in Turner from those in Frye and Lafler). A defendant has no constitutional right to a plea offer and no guarantee that a judge will accept a plea offer. See Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909, 1916 (1992) (“[T]here is a choice between (1) a right (that may be bought and sold) to an elaborate trial, and (2) an inalienable right to a more casual trial process.”); see also Mulroy, supra note 36, at 217–18 (highlighting commonality of facts giving rise to Turner). Instances in which there is a simultaneous or preceding pre-indictment plea offer will become more common, making it harder to justify not extending the right to counsel to those instances. Mulroy, supra note 36, at 217–18. Mandatory sentencing and sentencing guidelines are another evolving area of the law which has and will continue to influence the importance and application of the Sixth Amendment right to counsel. Metzger, supra note 23, at 1658. Laws in these areas place a unique importance on the charges presented by the prosecutor, and an unrepresented defendant in these pre-indictment proceedings could be seriously disadvantaged. Id. at 1663–64. Similarly, a lawyer’s assistance in seeking a reduced sentence for cooperating with the government is equally important in the pre- sentencing and post-sentencing phases. Id. at 1668. Recently in Maslonka v. Hoffner, the Sixth Circuit faced a similar, yet distinct, issue also unimaginable prior to the ratification of the Sixth Amendment. 900 F.3d 269, 278–79 (6th Cir. 2018). That is, “whether or not cooperation with federal authorities is considered part of the critical stage of state plea negotiations where . . . a state plea offer hinges on that federal cooperation.” Id. 38 See Turner, 885 F.3d at 953 (rejecting argument that preindictment and postindictment plea negotiation stages should be treated equally); Rothgery, 554 U.S. at 211–12 (explaining difference between questions). “Once attachment occurs, the accused . . . is entitled to the presence of appointed counsel during any ‘critical stage’ of the postattachment proceedings . . . .” Rothgery, 554 U.S. at 212. Thus, even post attachment, there will still be instances in which counsel’s presence is not required at certain proceedings. Id. 39 See Kirby v. Illinois, 406 U.S. 682, 689–90 (1972) (refusing to offer assistance of counsel during pre-indictment lineup); Massiah v. United States, 377 U.S. 201, 205–06 (1964) (declining to impose per se rule regarding critical stage question); Turner, 885 F.3d at 953 (enumerating pretrial “trial-like confrontations” that are just as perilous as post-indictment confrontation). “The initiation of judicial criminal proceedings is far from a mere formalism.” Kirby, 406 U.S. at 689. See also Brandon K. Breslow, Signs of Life in the Supreme Court’s Uncharted Territory: Why the Right to Effective Assistance of Counsel Should Attach to Pre-Indictment Plea Bargaining, 62 FED. LAW. 34, 38–39 (2015) (proposing right to counsel should attach to all plea negotiations, pre or post-indictment alike); James S. Montana & John A. Galotto, Right to Counsel: Courts Adhere to Bright-Line Limits, 16 CRIM.JUST. 4, 12 (2001) (postulating right to counsel should attach at critical pre-indictment stages, such as plea bargaining). 2020] EIGHTY-SIX THE SIXTH AMENDMENT 187 have been initiated.”40 The court refused to expand the scope of the right to counsel as some lower courts and other circuits have suggested.41 There are a number of alternative rule formulations that would better serve those accused in pre-indictment scenarios that are similar to the rule formulations that give defendants protection in post-indictment proceedings.42 Additionally, there are valid concerns that the current bright- line rule lends itself to “prosecutorial manipulation.”43 Prosecutors may be tempted to delay issuing a formal indictment with the intent that the unprotected, unadvised accused will quickly accept a plea deal.44 To remedy this, when determining a critical stage, the court should consider whether: (1) the government made its intent to prosecute known “either formally or through informal means, such as grand jury investigation, plea bargaining, or pre-charge discussions with the suspect or with defense counsel,” (2) formal charges would have followed if discussions broke down between the parties, and (3) “it is a temporal fortuity that the case falls outside the traditional . . . critical stage.” 45 In Turner, the prosecution intended to move forward with formal charges as evidenced by the plea offer and the

40 See United States v. Gouveia, 467 U.S. 180, 187 (1984) (failing to broaden applicability of Sixth Amendment right to counsel); Turner, 885 F.3d at 953 (articulating when Sixth Amendment protections initiate). The dubitably concurring Judge Bush suggested the question of attachment turns on the definitions of “accused” and “criminal prosecution,” as used in the text of the Sixth Amendment, and embarked on a thorough historical analysis of the terms to determine their meaning at the time the Sixth Amendment was ratified. Turner, 885 F.3d at 956 (Bush, J., concurring). Attachment is triggered in two instances: “a formal charge from the prosecutor, either in the form of an indictment or information; or . . . an appearance before a judge, as in arraignment or first appearance.” Mulroy, supra note 36, at 215. 41 See Turner, 885 F.3d at 953–54 (denying existence of circuit split); but see Mulroy, supra note 36, at 230–33 (indicating First, Third, and Seventh Circuits and some state courts proposed bright-line rule alternatives). 42 See Turner, 885 F.3d at 983–84 (Stranch, J., dissenting) (insisting on “flexible, fact-specific analysis” of criminal confrontations to determine Sixth Amendment applicability); Mulroy, supra note 36, at 241–42 (suggesting alternative application of rule would fairly benefit accused); see also Kirby, 406 U.S. at 690-91 (articulating current rule). 43 See Turner, 885 F.3d at 983 (Stranch, J., dissenting) (“[P]rosecutors can simply delay indicting people to extract unfavorable and uncounseled plea agreements.”); Mulroy, supra note 36, at 233 (noting but for prosecutor’s delay in filing charges, defendants entitled to effective assistance). 44 See Mulroy, supra note 36, at 247–48 (describing prosecutor’s incentives in delaying indictment); see also Metzger, supra note 23, at 1690 (recognizing demerits of current application of right to counsel). “[T]he absence of counsel will give the government an unfair advantage or . . . determine the outcome of the proceeding. . . . [T]he government may well commit itself to prosecuting but delay filing a formal charge.” Metzger, supra note 23, at 1690. 45 See Metzger, supra note 23, at 1690 (highlighting potential prosecutorial manipulation proposed rule would protect against). This formulation of the rule would not harshly exclude pre- indictment situations, post-sentence cases, and situations where there was “inadvertent or deliberate manipulation of the process in order to circumvent the defendant’s right to appointed counsel.” Id. 188 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV associated expiration date.46 Suggesting the case may not go forward because the grand jury had not indicted the accused—as was the case in Turner—merely because the grand jury was not yet presented with the case offers the defendant a warped sense of security, exemplifying why counsel is necessary in complicated proceedings such as these.47 There is blatant prosecutorial manipulation present when these tactics are used to coerce an accused into accepting a plea offer.48 Another proposed rule suggests the right to counsel pivots either on the involvement of law enforcement or on the defendant’s direct interaction with prosecutors regarding substantive aspects of his or her case.49 Undeniably, the plea offer was a substantive aspect of Turner’s case; in fact, it was his whole case.50 Additionally, the court presumes the right to counsel applies where a “proceeding carries a risk of substantial potential prejudice.”51 Plea offers are a powerful tool of the justice system and their

46 See Turner, 885 F.3d at 952 (commenting AUSA planned to bring charges and offered plea with pending expiration date). 47 See Scott, supra note 37, at 1909–10 (describing popularity of plea bargaining process). 48 See Metzger, supra note 23, at 1690 (highlighting courts can find either inadvertent or deliberate prosecutorial manipulation). 49 See Mulroy, supra note 36, at 233–34 (suggesting another application of rule that Sixth Amendment right attaches when defendant interacts with prosecutor). Law enforcement’s interactions with suspects, are often just that—interactions—because law enforcement cannot initiate proceedings in the same way a prosecutor can. Id. at 235–36. As such, a suspect is arguably not yet an “accused” as the Sixth Amendment intended. Id. Furthermore, once a prosecutor becomes involved, it is evident that the inquiry has turned from fact-finding police work to adversarial, prosecutorial work. Id. at 231–32. This proposed rule is open-ended and, in application, would extend to the following situations and more:

[N]egotiations on cooperating with the investigation in exchange for immunity; negotiations on the surrender of a wanted person; negotiations on the turning over of potentially incriminating evidence; and negotiations on the terms under which someone will take the police to point out something (like the location of a body) . . . . [C]ommunications concerning the grand jury testimony of the suspect, or depositions taken in preparation for trial . . . .

Id. at 241; see also Metzger, supra note 23, at 1690–91 (describing how interactions with police can present collateral consequences unknown to layperson). Metzger suggests defendants are entitled to protection when confronted with “intricacies of the criminal procedure system that may be ‘mysterious, intricate and complex,’” such as interactions with pretrial service officers or probation officers, in situations like a lineup, for example. Metzger, supra note 23, at 1690–91. 50 See Turner, 885 F.3d at 955; Scott, supra note 37, at 1912 (“[Plea bargaining] is not some adjunct to the criminal justice system; it is the criminal justice system.”). 51 See Metzger, supra note 23, at 1691 (suggesting right to counsel should attach when effects of proceeding are irrevocable). 2020] EIGHTY-SIX THE SIXTH AMENDMENT 189 use should still be encouraged but in a manner the Constitution envisioned, which is what these proposed rules seek to achieve.52 A workable solution would allow the attachment question and is the critical stage question to be asked in an interchangeable order.53 As it operates now, the question of whether an aspect of the prosecution is a critical stage follows, somewhat naturally, after the determination that the Sixth Amendment attached to the prosecution.54 But, this order advanced the improper notion that a defendant would not face a critical stage of the prosecution prior to traditional attachment.55 If courts instead adopt the idea that there may be instances when a critical stage can occur before a “formal charge, preliminary hearing, indictment, information, or arraignment,” defendants will be given a chance at a just and equitable proceeding.56 This allows the law to evolve as the courts consider new questions and issues that were unimaginable when the Sixth Amendment was ratified, or even when the controlling precedent was decided nearly forty years ago.57 Ultimately,

52 See Turner, 885 F.3d at 965 (Bush, J., concurring) (summarizing what constitutional framers intended by enacting Sixth Amendment); see also United States v. Sikora, 635 F.2d 1175, 1182 (6th Cir. 1980) (“It should be emphasized again that this is not a major or even a particularly significant extension of Sixth Amendment protection, because in most cases formal proceedings would have begun before plea bargaining commences.”). 53 See Turner, 885 F.3d at 968 (Clay, J., concurring) (suggesting critical stage question is just as important as attachment question). This idea is presumptively foreclosed by Gouveia, but the Court never considered the question of whether the right attaches in pre-indictment plea negotiations. United States v. Gouveia, 467 U.S. 180, 187–92 (1984); see Kennedy v. United States, 756 F.3d 492, 493 (6th Cir. 2014) (admitting issue would be one of first impression for Supreme Court). In Turner, the dissent advocates that the court ought to “scrutinize [the] formal federal plea offer to determine whether it marked the initiation of adversary judicial proceedings.” 885 F.3d at 980 (Stranch, J., dissenting). In other words, the court should consider whether the critical plea offer stage triggered the attachment of the right to counsel. Id. 54 See Turner, 885 F.3d at 956–63 (Bush, J., concurring) (embarking on thorough historical analysis of terms “accused” and “criminal prosecution”). 55 See id. at 981 (Stranch, J., dissenting) (suggesting pre-indictment plea negotiations contain underpinnings of adversarial judicial proceedings). “But while criticality and attachment are distinct concepts, there is overlap between the factors used to analyze them, such as adversity.” Id. (citation omitted). 56 See Kirby v. Illinois, 406 U.S. 682, 689 (1972) (suggesting Sixth Amendment is invoked when adversarial positions solidify and defendant finds he needs counsel); see also Metzger, supra note 23, at 1689 (suggesting softened approach to critical stage question). A court could find a critical stage by evaluating the following procedural stages identified by the Supreme Court: “(1) adversariness-in-fact between the individual and the prosecution (‘adversariness-in-fact’); (2) complexity in the procedural stage in question (‘complexity’); and (3) potential prejudice to the individual, which prejudice can be countered by providing counsel (‘prejudice/benefit’).” Metzger, supra note 23, at 1689. 57 See Turner, 885 F.3d at 965 (Bush, J., concurring) (reminding that Supreme Court routinely applies founding-era precepts to then-unknowable modern-day scenarios); Mulroy, supra note 36, at 217–18 (exemplifying how changed rule benefits accused via new procedural methods). In his concurrence, Judge Bush also noted that the framers had “no understanding of modern-day charge 190 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV the dissent as well as many of the concurring judges, who begrudgingly agreed with the majority because they felt as though they must follow the Supreme Court precedent, call for a case-by-case, practical evaluation of the facts and circumstances to properly determine when the Sixth Amendment right to counsel attaches.58 In Turner v. United States, the Sixth Circuit addressed the issue of whether the Sixth Amendment right to counsel extended to a plea negotiation that occurred prior to an indictment. The court blindly applied what it believed to be the relevant Supreme Court precedent in finding that, because the plea negotiation took place before a “formal charge, preliminary hearing, indictment, information, or arraignment,” the right to counsel did not attach to the proceedings. This outcome left the defendant, who deserved counsel at that critical stage of his criminal proceedings, at a disadvantage that violates what the Sixth Amendment broadly sought to protect. There are many viable options to resolve this issue that would better serve the interests of both prosecutors and defendants. Courts should reevaluate the manner in which a defendant’s right to counsel at the pre-indictment stage is determined and rework the existing framework to best serve the criminal justice system as a whole.

Sierra Lovely

bargaining,” suggesting another method of entering verdicts in the current criminal justice system that was unimaginable when the Amendment was passed. Turner, 885 F.3d at 965 (Bush, J., concurring). In Moody, the court highlighted the changing system saying, “[t]he Sixth Amendment right to counsel historically has evolved to meet the challenges presented by a changing legal paradigm. The criminal justice system has and is changing so that defendants now face critical stages of their prosecutions prior to indictment.” 206 F.3d at 618 (Wiseman, J., concurring). Examples include cases involving mandatory sentencing, sentencing guidelines, and joint federal- state task forces. Metzger, supra note 23, at 1636; Mulroy, supra note 36, at 217–18. 58 See Turner, 885 F.3d at 979–80 (Stranch, J., dissenting) (dulling attachment doctrine from harsh, bright-line rule used by majority); see also United States v. Olson, No. 2:12-cr-00327-APG, 2019 U.S. Dist. LEXIS 129320, at *11 (D. Nev. Aug. 1, 2019) (granting appeal as to whether right to effective counsel attaches to pre-indictment formal plea offer). In light of Turner and the Supreme Court’s denial of certiorari, the court found “that reasonable jurists could debate whether a person can be denied effective counsel during a pre-indictment plea negotiation.” Olsen, 2019 U.S. Dist. LEXIS 129320, at *11. CONSTITUTIONAL LAW—AMERICA’S DRONE WAR ABROAD—JABER V. UNITED STATES, 861 F.3D 241 (D.C. CIR. 2017).

Drone technology has expanded the United States ability to conduct operations in support of the War on Terror to a global level.1 Since 2001, presidential administrations have employed drone strikes as a lethal option in covert international operations.2 In Ahmed Salem Bin Ali Jaber v. United States,3 the District of Columbia Circuit Court of Appeals addressed whether the family of an innocent victim killed in a drone strike could be awarded a declaratory judgment based on a violation of international law.4 The court looked to the Torture Victim Protection Act5 (“TVPA”) and the Alien Tort Statutes6 (“ATS”) to analyze the use of force.7 The court appropriately affirmed the district court’s ruling that these claims are barred under the political question doctrine.8 In August 2012, the bin Ali Jaber family gathered in Khashamir, Yemen to attend a week-long wedding celebration.9 On August 24, 2012, Ahmed Salem bin Ali Jaber (“Salem”) provided a guest sermon at a local Khashamir mosque, directly challenging al Qaeda to “justify its attacks on civilians.”10 Shortly after the sermon, on August 29, 2012, three young men arrived at Salem’s father’s house and asked to speak with Salem, but he was

1 See Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities, ACLU (May 22, 2013), available at https://www .aclu.org/sites/default/files/field_document/presidential_policy_guidance.pdf [https://perma.cc/ ENB9-AB69] (establishing standard procedures for when United States takes direction action against targets). 2 See id. (authorizing use of lethal drone strikes). 3 861 F.3d 241 (D.C. Cir. 2017). 4 See id. at 243 (addressing issue in case). 5 See Torture Victim Protection Act Of 1991, Pub. L. No. 102-256, 106 Stat. 73 (“[t]o carry out obligations of the United States under the United Nations Charter and other international agreements pertaining to the protection of human rights by establishing a civil action for recovery of damages from an individual who engages in torture or extrajudicial killing.”). 6 28 U.S.C. § 1350 (1948) (“[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”). 7 See Jaber, 861 F.3d at 243 (referencing plaintiffs’ claims). 8 See id. at 250 (affirming district court’s dismissal of plaintiffs’ claims). 9 See id. at 243 (explaining why plaintiff was in area). 10 See id. (restating facts of case). Ahmed Salem bin Ali Jaber, an imam in the port town of Mukalla, was asked to speak as a guest in the Khashamir mosque. Id. According to the plaintiffs’ complaint, this sermon was not overlooked by local extremists. Id. at 243. 192 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV unavailable.11 Later that same evening, the men approached Salem at the mosque to discuss statements from his sermon.12 When Salem met the group, two of the three men followed him to sit under a palm tree.13 Shortly after Salem went with the group of men, “members of the bin Ali Jaber family heard the buzzing of the drone, and then heard and saw the orange and yellow flash of a tremendous explosion.”14 According to witnesses, four missiles impacted and resulted in the death of all five people.15 Salem’s family contends that a United States-operated drone deployed four Hellfire missiles that killed the five men.16 Salem’s family lobbied the Yemeni and United States governments for redress.17 The plaintiffs sought official recognition from the United States government and filed a lawsuit against it for damages.18 The United States moved to dismiss the action for “lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted.”19 The district court granted the government’s motion based on political question grounds,

11 See Jaber, 861 F.3d at 243–44 (identifying time when unknown individuals approached). The group of unidentified men first arrived at Salem’s father’s home in the early afternoon. Id. at 243. Salem’s father told the group that Salem was visiting neighboring villages and the men left. Id. Later that evening, the group returned to the home and Salem’s father informed them that they might find Salem “at the mosque after evening prayers.” Id. at 244. 12 See id. at 244 (discussing how meeting took place). Salem was fearful of meeting with the group of men and asked one of the two local policemen, Waleed bin Ali Jaber (“Waleed”), to accompany him to the meeting. Id. 13 See id. (discussing location of all individuals at meeting). The third individual watched the meeting with Salem from a short distance away. Id. 14 See id. (referencing seeing drone strike). 15 See id. (addressing witness statement asserted by plaintiff). Witnesses stated “the first two strikes directly hit Salem, Waleed[,] and two of the three strangers. The third missile seemed to have been aimed at where the third visitor was located . . . . The fourth strike hit the [men’s] car.” Id. (omission in original) (alterations in original). 16 See Jaber, 861 F.3d at 244 (discussing plaintiffs’ assertion of claim). 17 See id. (discussing family’s attempts for official recognition of drone strike). On the evening of the drone strike, a “Yemeni official” spoke via telephone with several members of the bin Ali Jaber family to “convey personal condolences for the wrongful deaths of Salem and Waleed, but [he] offered no official acknowledgment of or redress for the strike.” Id. (alteration in original). The family continued to lobby Yemen and U.S. officials for official acknowledgment of the strike. Id. The Yemeni government “ordered the families receive the equivalent of around $55,000 US in Yemeni currency” as a “condolence payment.” Id. “Later, a member of Yemen’s National Security Bureau offered a family member $100,000 in U.S. dollars,” originally claiming the money was from the U.S. government. Id. When the family asked for the statement in writing, it was recanted. Id. The plaintiffs then turned to the courts for official recognition for the attack. Id. 18 See id. at 244 (addressing pre-trial motions filed by United States). “[T]he government successfully moved under the Westfall Act, 28 U.S.C. § 2679, to substitute the United States for the named defendants as to all counts except those under the TVPA.” Id. 19 See id. at 244–45 (discussing procedural posture of district court). 2020] AMERICA’S DRONE WAR ABROAD 193 barring any claim.20 The D.C. Circuit Court of Appeals affirmed the district court’s holding on appeal.21 The political question doctrine determines questions that are beyond the scope of Article III of the United States Constitution.22 In application, a

20 See id. at 244–45 (addressing barred claim). The district court granted the government’s Fed. R. Civ. P. 12(b)(1) motion, holding that the plaintiff had “next friend” standing to bring the claim on Salem’s behalf, but the claim is “nonetheless barred on political question grounds.” Id. at 245. “The district court further stated, ‘[P]laintiffs’ claims would [also] face insurmountable barriers on the merits’ since ‘previous exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief’ and the TVPA ‘does not authorize suits against U.S. officials.’” Id. (alteration in original). 21 See Jaber, 861 F.3d at 250 (affirming district court’s holding). 22 See U.S. CONST. art. III, § 2 (“[t]he judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority . . . [and] to Controversies . . . .”); Marbury v. Madison, 5 U.S. 137, 170 (1803) (holding “[q]uestions, in their nature political . . . can never be made in this court.”); see also Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (stating jurisdictional issue must be addressed “before proceeding to the merits.”); Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998) (holding Court is “bound to ask and answer” jurisdictional question); Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (identifying jurisdictional analysis); Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006) (holding jurisdiction inappropriate). The political question doctrine concerns the limitations of the “case or controversy requirement of Article III.” Bancoult, 445 F.3d at 432. When considering if a case presents a non-justiciable political question, the court must accept all factual allegations asserted in the complaint as true. Tri- State Hosp. Supply Corp. v. United States, 341 F.3d 571, 572 n.1 (D.C. Cir. 2003) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1 (2002)) (identifying standard of review). However, because jurisdictional elements are “not mere pleading requirements but rather an indispensable part of the plaintiff’s case,” they must be supported with evidence “in the same way as any other matter on which the plaintiff bears the burden of proof.” Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 13 (D.D.C. 2010) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)) (referencing scrutiny of facts). Due to the nature of the review, the factual allegations will be treated with greater scrutiny than normal under a Federal Rules of Civil Procedure 12(b)(6) standard. FED.R.CIV. P. 12(b)(6); Obama, 727 F. Supp. 2d at 13 (identifying standard for defense). To survive a 12(b)(6) motion to dismiss, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face,’” allowing for a court to “draw the reasonable inferences that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (referencing standard to survive motion to dismiss). The plausibility standard requires “more than a sheer possibility that the defendant has acted unlawfully.” Ashcroft, 556 U.S. at 678. Prior to considering whether a claim is barred by the political question doctrine, a court first must determine if the plaintiff has standing to bring the claim before going into “next friend” standing. See Whitmore v. Arkansas, 495 U.S. 149, 163–64 (1990) (identifying “next friend” standing). Traditional prerequisites for establishing next friend standing require:

First a “next friend” must provide an adequate explanation–such as inaccessibility, mental incompetence, or other disability–why the real party in interest cannot appear on his own behalf to prosecute the action. Second, the “next friend” must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a “next friend” must have some significant relationship with the 194 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV court must determine whether it has the appropriate jurisdiction to hear the claim.23 In determining whether a claim falls within the political question doctrine, the Court uses a six factor analysis established in Baker v. Carr.24 If a court determines at least one factor from Baker is present, then the political question doctrine bars the procedure to only an analysis of the claim on the merits.25

real party in interest. The burden is on the “next friend” clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.

Id. However, any claim presenting a political question will be barred under the political question doctrine. See Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (stating federal claim “may not be heard if it presents a political question”). 23 See Schlesinger, 418 U.S. at 215 (holding political question doctrine concerns jurisdictional case or controversy requirement). When applying the analysis of the political question doctrine, the courts must examine where the government authority arises. Oetjen v. Central Leather Co., 246 U.S. 297, 302 (1918) (holding executive and legislative branches responsible for conduct of foreign relations). Oetjen was one of the Supreme Court’s first applications of the political question doctrine. Id. 24 See Baker v. Carr, 369 U.S. 186, 210 (1962) (asserting purpose of political question doctrine). The Court outlined the contours of the political question doctrine:

Prominent on the surface of any case held to involve a political question is found [1] a textually demonstrable constitutional commitment of the issue to a coordinate political department; or [2] a lack of judicially discoverable and manageable standards for resolving it; or [3] the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or [4] the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or [5] an unusual need for unquestioning adherence to a political decision already made; or [6] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Id. at 217. The courts need only find one factor is present to conclude the claim is barred under the political question doctrine. See Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) (identifying application of doctrine). The formulation of the claim must be “inextricable from the case at bar” for a court to dismiss it as nonjusticiable. Baker, 369 U.S. at 217. 25 See Baker, 369 U.S. at 217 (outlining factors to analyze); see also Schneider, 412 F.3d at 194 (holding only one factor needs to be present). The Supreme Court further stated that the doctrine excludes from judicial review, no matter how sympathetic the allegations may be, any controversy surrounding a political choice. Schneider, 412 F.3d at 194 (citing Japan Whaling Ass’n v. Am. Cetacean Soc’y, 478 U.S. 221, 230 (1986)). The Court in Japan Whaling Ass’n held that the doctrine bars claims of “controversies which revolve around policy choices and value determinations constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch.” 478 U.S. at 230. After the September 11, 2001 attacks on the United States, Congress passed a Joint Resolution stating:

That the President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations[,] or persons. 2020] AMERICA’S DRONE WAR ABROAD 195

Courts have been limited to reviewing battlefield decisions when applying the political question doctrine.26 Historically, if a court determines the nature of a claim to be limited to a power specifically vested to a branch of government, the court will not review the merits of the claim.27 The

Authorization for Use of Military Force, Pub. L. No. 107-40, §2(a), 115 Stat. 224 (2001) (outlining President’s authority). One of the primary weapons used by the United States to combat terrorism abroad is the drone. See Daniel Byman, Why Drones Work: The Case for Washington’s Weapon of Choice, FOREIGN AFFAIRS (July/Aug. 2013), https://www.foreignaffairs.com/articles/ somalia/ 2013-06-11/why-drones-work [https://perma.cc/29AU-UCZH] (explaining use of drones); see also OFFICE OF THE DIR.OF NAT’L INTELLIGENCE, Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities (July 1, 2016), https://www.dni.gov/ files/documents/Newsroom/Press%20Releases/DNI+Release+on+CT+Strikes+Outside+Areas+of +Active+Hostilities.PDF [https://perma.cc/M7F8-8ZTW] (reporting figures for period of January 20, 2009 to December 31, 2015). As the use of drones become more prolific, the procedures authorizing the force become more specific. Byman, supra note 25; see also Michael C. Horowitz et al., Separating Fact from Fiction in the Debate Over Drone Proliferation, 41 INT’L SECURITY 2, 7 (2016), https://www.belfercenter.org/sites/default/files/files/publication/isec_a_00257.pdf [https://perma.cc/469J-JTNF] (reiterating proliferation of drone use); see also Dan de Luce & Paul McLeary, Obama’s Most Dangerous Drone Tactic Is Here to Stay, FOREIGN POL’Y (Apr. 5, 2016, 8:53 PM), http://foreignpolicy.com/2016/04/05/obamas-most-dangerous-drone-tactic-is-here-to- stay/ [https://perma.cc/HW6D-92GW] (analyzing drone targeting policy). 26 See Haig v. Agee, 453 U.S. 280, 292 (1981) (addressing “[m]atters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention.”); see also Harisiades v. Shaughnessy, 342 U.S. 580, 589 (1952) (stating matters relating “to the conduct of foreign relations . . . are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference.”); Al-Aulagi, 727 F. Supp. 2d at 45 (citing DaCosta v. Laird, 471 F.2d 1146, 1155 (2d Cir. 1973)) (stating courts are “ill-equipped to assess the nature of battlefield decisions, or to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.”); Schneider, 412 F.3d at 197 (finding foreign policy and national security matters are for Executive Branch and Congress to decide). 27 See Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (expressing where power originates). In Gilligan, Chief Justice Burger and the majority held:

The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is the power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system . . . .

Id. (emphasis in original). Once the court identifies where the power originates, the court is then able to determine whether judicial review is appropriate. People’s Mojahedin Org. of Iran v. U.S. Dep’t of State, 182 F.3d 17, 21–24 (D.C. Cir. 1999) (identifying proper review of Executive Branch power). In People’s Mojahedin Org. of Iran, the court had to determine whether it was appropriate for the Secretary of State to designate a group as a “foreign terrorist organization” under the Antiterrorism and Effective Death Penalty Act. 182 F.3d at 18. The United States Court of Appeals for the District of Columbia Circuit held that it may constitutionally decide whether the Secretary of State followed the proper procedure in determining whether the foreign organization had engaged in terrorist activities. Id. at 25. However, the court could not review whether “the terrorist activity of the organization threatens the security of United States nationals or the national security 196 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV

United States Supreme Court has identified a functional approach to distinguish between nonjusticiable claims and fully justiciable claims in order to analyze the political question doctrine.28 However, a court will not bar a claim if the Constitution specifically contemplates a judicial role in the arena or if they are not asked to determine a political question in deciding the merits of a claim.29 of the United States” because this question was nonjusticiable. Id. at 23. The court determined this issue presented a nonjusticiable political question because the determination of whether terrorist activities are a threat to the United States “are political judgments, ‘decisions of a kind for which the Judiciary has neither aptitude, facilities nor responsibility and have long been held to belong in the domain of political power not subject to judicial intrusion or inquiry.’” Id. at 23 (quoting Chi. & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948)); but see Kristen E. Eichensehr, Comment, On Target? The Israeli Supreme Court and the Expansion of Targeted Killings, 116 YALE L.J. 1873, 1873 (2007) (identifying terrorists as civilians who are “subject to attack only when they directly participate in hostilities”). 28 See El-Shifa Pharm. Indus. Co. v. United States, 607 F.3d 836, 844–45 (D.C. Cir. 2010) (identifying functional approach). In El-Shifa Pharm. Indus. Co., the United States conducted a retaliatory strike against a factory in Sudan, which was believed to be associated with the Al-Qaeda terrorist network and to be in the “production of materials for chemical weapons.” Id. at 838. The owner of the factory sued under the Federal Tort Claims Act, claiming that the strike was a mistake because the factory only produced medicine for Sudanese people. Id. at 839–40. The district court dismissed the claim because of the political question doctrine, and the D.C. Circuit affirmed. Id. at 840. During the en banc review, the court adopted a functional approach to distinguish justiciable claims from nonjusticiable claims. Id. at 844–45. The court distinguished the claims by identifying nonjusticiable claims as ones that require courts “to decide whether taking military action was ‘wise’ - - ‘a “policy choice and value determination constitutionally committed for resolution to the halls of Congress or the confines of the Executive Branch’ - - and [justiciable] claims [as] ‘[p]resenting purely legal issues’ such as whether the government had legal authority to act.” Id. at 842 (third alteration in original) (quoting Campbell v. Clinton, 203 F.3d 19, 40 (D.C. Cir. 2000) (Tatel, J., concurring), and quoting Japan Whaling, 478 U.S. at 230). The El-Shifa court held that the presented claims were barred by the political question doctrine because it asked the court “to decide whether the United States’ attack on the plant was mistaken and not justified” and “to determine the factual validity of the government’s stated reasons for the strike.” Id. at 844 (quotation omitted). The court further stated that “[i]f the political question doctrine means anything in the arena of national security and foreign relations, it means the courts cannot assess the merits of the President’s decision to launch an attack on a foreign target, and the plaintiffs ask us to do just that.” Id.; see also Bancoult v. McNamara, 445 F.3d 427, 437 (D.C. Cir. 2006) (“The courts may not bind the executive’s hands on [political question] matters . . . whether directly–by restricting what may be done – or indirectly – by restricting how the executive may do it.”). 29 See Al Bahlul v. United States, 840 F.3d 757, 758–59 (D.C. Cir. 2016) (en banc) (affirming constitutional validity of Bahlul’s Guantanamo Bay detainment). The court provided judicial review to determine whether a legislative act regarding the law of war is appropriate. Id. at 758. Furthermore, if the court determines a claim does not require a political question because it implicates a statutory right, then the court will review the claim on its merits. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012) (relying on precedent to determine political question doctrine applicability). The Court considered a statute that authorized the Department of State to record place of birth for a United States citizen born in Jerusalem as “Jerusalem, Israel,” for purposes of registration of birth or issuance of passport, at the request of the citizen. Id. at 192. The United States Embassy refused to do so when Zivotofsky’s mother requested the documents list Jerusalem, Israel as place of birth, and recorded it as Jerusalem. Id. at 192–93. The Court determined that the plaintiff was not asking the Court to determine the validity of the executive decision, but rather to 2020] AMERICA’S DRONE WAR ABROAD 197

In Ahmed Salem Bin Ali Jaber v. United States, the court upheld the ruling of the district court and barred the Plaintiffs’ claim under the political question doctrine.30 The court first determined whether it had the jurisdiction to hear the claim.31 Following this analysis, the court held that a declaration that stated responsibility for the strike would constitute a political question.32 Finally, the court examined a number of public statements issued by President Bush and President Obama and determined that the Executive Branch did not concede authority to the judiciary to enforce the rules.33 Judge Brown wrote a concurring opinion highlighting the issues that surround the political question doctrine.34 The concurring opinion argued that the majority appropriately outlines the applicable authority, but failed to adapt the law surrounding the current conflict with changes in technology.35 Judge Brown summarized the extent to which drone technology has been used in non-combat zones and its evolution over time.36 Finally, she argued that the holding of El-Shifa is appropriate for the executive branch, but is not

vindicate the rights of the plaintiff. Id. at 195. Therefore, the claim was justiciable and not barred by the political question doctrine. Id. 30 See 861 F.3d 241, 250 (D.C. Cir. 2017) (referencing court’s holding). 31 See id. at 245 (addressing court’s approach). The court outlined the appropriate authority in determining whether a claim is considered nonjusticiable. Id. (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)). After outlining the factors that must be considered to determine whether a claim is nonjusticiable, the Jaber court noted that only one factor needs to be present for a claim to be barred by the political question doctrine. Id. at 245 (citing Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005)). 32 Jaber, 861 F.3d at 245–47 (holding question presented requires political question). The court examined whether it is appropriate to review whether a military strike was a mistake or was justified and determined this was a political question. Id. 33 See id. at 249–50 (referencing public statements from Executive Branch). 34 See Jaber, 861 F.3d at 250 (Brown, J., concurring) (arguing that majority fails to recognize flaws in doctrines with respect to changing technology). 35 See id. (outlining technology change in warfare). Judge Brown identified that Baker is the appropriate authority to analyze the political question doctrine, but addresses that times have changed since this decision. Id. Identifying the evolution of asymmetric warfare as a problematic topic, Judge Brown stated that “the political question doctrine ensures that effective supervision of this wondrous new warfare will not be provided by U.S. courts.” Id. Further, Judge Brown concurs that, in the United States, “strict standing requirements, the political question doctrine, and the state secrets privilege confer such deference to the Executive in the foreign relations arena that the Judiciary has no part to play.” Id. 36 See id. at 251–52 (referencing statistics and expansion of drone deployment). Judge Brown outlines the evolution from when the United States first began using drone strikes to the consistent changes over the years. Id. at 251. Over the years, the geographic scope and number of strikes has grown dramatically. Id.; see Byman, supra note 25 (referring to expanded drone use by administration). Judge Brown further identifies how the Central Intelligence Agency (“CIA”) and the Joint Special Operations Command (“JSOC”) have expanded their “signature strikes”— attacks where the government targets anonymous suspected militants based solely on their observed pattern of behavior. Jaber, 861 F.3d at 251 (Brown, J., concurring). 198 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV an adequate response for the CIA/JSOC targeted killing programs.37 However, the majority opinion appropriately analyzed the plaintiffs’ claim to determine the court is barred under the political question doctrine.38 The court first analyzed whether the plaintiffs satisfied the standing requirement to bring the claim.39 The court then appropriately moved to determine the question regarding jurisdiction.40 The court correctly applied the six political question doctrine factors from Baker to determine whether

37 See Jaber, 861 F.3d at 252 (Brown, J., concurring) (referencing inapplicability of political question doctrine). Justice Brown stated:

El-Shifa Pharmaceutical Industries Co. v. United States . . . sensibly holds that a court should not second-guess an Executive’s decision about the appropriate military response—avoiding the need for boots on the ground, for example—to address a singular threat that might occur once or twice at widely separated intervals. Its doctrine, however, seems a wholly inadequate response to an executive decision—deployed through the CIA/JSOC targeted killing program—implementing a standard operating procedure that will be replicated hundreds if not thousands of times.

Id. 38 See id. at 250 (referencing court’s holding). 39 See Jaber, 861 F.3d at 244–45 (majority opinion) (holding claim satisfied standing requirements). Prior to determining whether the plaintiffs’ claims are barred, the court appropriately analyzed standing. Id.; see also Whitmore v. Arkansas, 495 U.S. 149, 163 (1990) (outlining requirements for “next friend” standing). Standing through “next friend” requires an “adequate explanation . . . why the real party in interest cannot appear on his own behalf . . .” as well as “the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” Whitmore, 495 U.S. at 163. Furthermore, the “‘next friend’ must have some significant relationship with the real party in interest.” Id. at 164. Faisal bin Ali Jaber appropriately stood in for the Jaber family due to the fact that the true plaintiff was killed in a drone strike. Jaber, 861 F.3d at 243. However, if asked to decide a political question, courts have identified that a claim under the TVPA is barred under the political question doctrine. See Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (holding claims “like any other, may not be heard if it presents a political question.”). In Jaber, the district court identified, and the circuit court failed to further address, that “‘[P]laintiffs’ claims would [also] face insurmountable barriers on the merits’ since ‘previous exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief’ and the TVPA ‘does not authorize suits against U.S. officials.’” Jaber, 861 F.3d at 245 (citing Ahmed Salem bin Jaber v. United States, 165 F. Supp. 3d 70, 79–81 n.6 (2016)) (alterations in original). 40 See Jaber, 861 F.3d at 245 (referencing court’s analysis of jurisdiction). In determining jurisdiction, the court correctly stated “[t]he ‘first and fundamental question’ this Court is ‘bound to ask and answer’ is whether it has jurisdiction to decide this case.” Id. (quoting Steel Co. v. Citizens for a Better Env’t., 523 U.S. 83, 94 (1998)). The Jaber court correctly applied the authority by analyzing the jurisdiction prior to deciding the case on the merits. See Tenet v. Doe, 544 U.S. 1, 6 n.4 (2005) (identifying court must address jurisdiction “before proceeding to the merits.”). The purpose of the political question doctrine is to determine whether a claim is justiciable. See Baker v. Carr, 369 U.S. 186, 210 (1962) (discussing function of separation of powers regarding justiciability). The primary function of the political question doctrine is to uphold the separation of powers. Id. at 211. 2020] AMERICA’S DRONE WAR ABROAD 199 the plaintiff’s claims were barred.41 The court then stated that it must conduct a “discriminating analysis” of the case before determining whether the political question doctrine bars the plaintiff’s claim.42 After correctly determining the applicable political question doctrine law, the court examined the plaintiffs’ claims.43 The government relied on the opinion in El-Shifa to demonstrate that the political question doctrine barred the plaintiff’s claim because it “call[ed] into question the prudence of the political branches in matters of foreign policy or national security constitutionally committed to their discretion.”44 The plaintiff asserted that

41 See Jaber, 861 F.3d at 245 (outlining Baker factors); Baker, 369 U.S. at 217 (outlining six factors of political questions to determine if court system is appropriate forum). The Jaber court further applied precedent to determine the court only needed to conclude that one factor was present. Jaber, 861. F.3d at 245; see Schneider v. Kissinger, 412 F.3d 190, 194 (D.C. Cir. 2005) (stating six factor list is disjunctive because “[t]o find a [nonjusticiable] political question, we need only conclude that one factor is present, not all.”). In applying precedent, the Jaber court correctly concluded that the plaintiffs’ claims required the court to determine a political question. Jaber, 861 F.3d at 246-47. The factors must be “inextricable from the case at bar” to require the court to dismiss the case. Id. at 245 (quoting Baker, 369 U.S. at 217). 42 See Jaber, 861 F.3d at 245–46 (analyzing standard for political question and claim by plaintiff). In determining the jurisdictional requirement, a court must apply the Baker factors to the specific claims of the plaintiff. Id. at 245; see Baker, 369 U.S. at 217 (referencing factor analysis); see also Schlesinger v. Reservists Comm. to Stop the War, 418 U.S. 208, 215 (1974) (expressing political question concerns “case or controversy requirement . . .”); Bancoult v. McNamara, 445 F.3d 427, 432 (D.C. Cir. 2006) (stating political question concerns “case or controversy requirement” of Article III of Constitution). 43 See Jaber, 861 F.3d at 244–45 (analyzing plaintiffs’ case before applying political question doctrine’s factors). The court determined that the plaintiff was seeking a declaration stating the drone attack “that killed their relatives violated domestic and international law.” Id. at 245. The government responded with the court’s opinion in El-Shifa which required the court to apply the political question doctrine because the case called into question a determination reserved to another branch of government. Id. Under El-Shifa, the court must determine whether a claim is nonjusticiable by taking a functional approach. See El-Shifa Pharmaceutical Industries Co. v. United States, 607 F.3d 836, 841 (D.C. Cir. 2010) (outlining functional approach to determine justiciability). The functional approach requires a court to determine whether a claim presents “purely legal issues” or determine if a claim is better reserved for “the halls of Congress.” Id. at 842. The court in Jaber properly held the claims presented by plaintiff required the court to determine whether the drone strike in Khashamir was “mistaken and not justified.” Jaber, 816 F.3d at 247 (quoting El-Shifa, 607 F.3d at 844). The Jaber court held this question is better reserved for “the halls of Congress” and barred under the political question doctrine. Jaber, 816 F.3d at 247. Furthermore, the political question doctrine also bars a claim under the TVPA. Id.; see also Gonzalez-Vera v. Kissinger, 449 F.3d 1260, 1264 (D.C. Cir. 2006) (stating a TVPA claim, “like any other, may not be heard if it presents a political question[.]”); Schneider, 412 F.3d at 197 (holding “recasting foreign policy and national security questions in tort terms does not provide standards for making or reviewing foreign policy judgments.”). 44 See Jaber, 861 F.3d at 246 (referencing El-Shifa holding where political question doctrine bars claims concerning other political branches). The functional test required under El-Shifa requires the court to examine the plaintiff’s claim. Id. In doing so, the court is asked to interpret the professional judgment of the military. Gilligan v. Morgan, 413 U.S. 1, 10 (1973) (analyzing “[t]he complex, subtle, and professional decisions as to the . . . control of a military force are 200 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV when El-Shifa is read together with Zivotofsky, it allowed for the claim not to be barred by the political question doctrine.45 To solidify the court’s conclusion that the plaintiff’s claim is barred, the court looked to executive statements to consider if the executive branch intended to concede power to the judiciary, and determined they did not because those statements set forth a legal analysis for drone strikes, but they did not concede authority to the

essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”) (omission in original) (emphasis in original). Actions concerning military judgment are constitutionally reserved to the branches of government and appropriately to the legislative and executive branches to maintain a system of checks and balances. Id. The United States court system is ill-equipped to assess battlefield decisions. See Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 45 (D.D.C. 2010) (stating courts are ill-equipped “to assess the nature of battlefield decisions” or “to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.”). Congress authorized the President “to use all necessary and appropriate force” to defend the United States following the September 11, 2001 terrorist attacks. See Authorization for Use of Military Force, Pub. L. No. 107-40 § 2(a), 115 Stat. 224 (2001) (authorizing “all necessary and appropriate force”). 45 See Jaber, 861 F.3d at 248–49 (reviewing Zivotofsky and applying decision to plaintiff’s claim). In Zivotofsky, the Court considered a statute that allowed for U.S. citizens born in Jerusalem to list their birthplace as “Jerusalem, Israel” on their birth registration or passports. Zivotofsky v. Clinton, 566 U.S. 189, 195 (2012). The Court determined the claim was not barred by the political question doctrine because it did not ask them to affirm an executive branch decision. Id. at 195. The Zivotofsky case confirms there is no per se rule to render a claim nonjusticiable because it implicates foreign relations. Jaber, 861 F.3d at 248 (citing Zivotofsky, 566 U.S. at 195). Rather, the Jaber court reasoned the Zivotofsky holding affirmed they must determine if “[t]he federal courts are . . . being asked to supplant a foreign policy decision of the political branches with the courts’ own unmoored determination” or being tasked with a “familiar judicial exercise” of determining statutory interpretation. Jaber, 861 F.3d at 248 (citing Zivotofsky, 566 U.S. at 196). The court in Jaber distinguished Zivotofsky because they were not asked to interpret statutory language, but rather foreign policy judgments attributable to the executive branch. Jaber, 861 F.3d at 248–49. 2020] AMERICA’S DRONE WAR ABROAD 201 judiciary.46 The court appropriately held the plaintiffs’ claims were barred by the political question doctrine and affirmed the district court’s finding.47 Judge Brown, in her concurring opinion, agreed with the outcome but expressed dismay in the system.48 Throughout the concurring opinion, Judge Brown identified the proliferation of drone technology and drone strikes conducted by the United States around the world.49 Judge Brown stated that El-Shifa applied to an Executive’s decision about the appropriate military response, but incorrectly believed the doctrine should not apply to

46 See Jaber, 861 F.3d at 249 (identifying court’s analysis of executive statements). In reviewing the executive statements, the court first looked at statements regarding the legal analysis justifying drone strikes, which defined the outer limits of when strikes are appropriate. Id. (justifying legal conclusion of political question regarding executive statements); see also Procedures for Approving Direct Action Against Terrorist Targets Located Outside the United States and Areas of Active Hostilities, supra note 1 (addressing internal Executive policies for conducting drone strikes outside active hostilities). The Jaber court correctly determined that the executive branch did not intend to concede nor invite the judiciary to intrude upon its traditional roles. Jaber, 861. F.3d at 249. An executive administration may develop legal rules which they believe to govern their conduct, but it is the role of the Judiciary to “say what the law is.” See Marbury v. Madison, 5 U.S. 137, 177 (1803) (outlining judiciary branch’s role in United States government). However, the Jaber court appropriately outlined the reverse to also be true; “it is the Executive, and not a panel of the D.C. Circuit, who commands our armed forces and determines our nation’s foreign policy.” Jaber, 861 F.3d at 249. For these reasons, the court properly deemed the Plaintiffs’ claims surrounding a drone strike in Yemen to be barred by the political question doctrine. Id. at 250. 47 See Jaber, 861 F.3d at 250 (outlining holding affirming district court decision). The court concluded their opinion by writing that,

Under the political question doctrine, the foreign target of a military strike cannot challenge in court the wisdom of [that] military action taken by the United States. Despite their efforts to characterize the case differently, that is just what the [P]laintiffs have asked us to do. The district court’s dismissal of their claims is [a]ffirmed.

Id. (quoting El-Shifa, 607 F.3d at 851) (alterations in original). 48 See Jaber, 861 F.3d at 250 (Brown, J., concurring) (referencing agreement in theory but strain in application of political question doctrine and court’s role). Justice Brown focused the application of the Baker factors to the new asymmetric warfare on the battlefield today and identified “conundrums that seem to defy solution.” Id. By allowing for the political question doctrine to apply, it “insures that effective supervision of this wondrous new warfare will not be provided by U.S. courts.” Id. Justice Brown further noted, unlike the United States, judicial intervention in policing executive powers is common in other jurisdictions around the world. Id.; see Eichensehr, supra note 27 (explaining that “terrorists are civilians under the law of armed conflict and thus are lawfully subject to attack only when they directly participate in hostilities.”); but see Gilligan, 413 U.S. at 10 (identifying electoral accountability to uphold executive and legislative branches). 49 See Philip Alston, The CIA and Targeted Killings Beyond Borders, 2 HARV.NAT’L SEC. J. 283, 441 (2011) (discussing targeted killing abroad). 202 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXV an executive decision deployed through the CIA/JSOC targeted killing programs.50 The District of Columbia Court of Appeals determined whether the district court properly granted the government’s motion to dismiss based on the political question doctrine. The court properly analyzed the jurisdictional requirements essential to the political question doctrine by applying the Baker factors. Furthermore, the court concluded that El-Shifa, the controlling precedent, required the court to affirm the decision of the district court. Although the concurring opinion outlined some drawbacks to the court’s application of the doctrine, the correct application of the political question doctrine allows for powers to remain in their respective branches.

Stephen R. Harris

50 See Jaber, 861 F.3d at 252 (Brown, J., concurring) (identifying concurring opinions main issue). Justice Brown opined that El-Shifa should not apply to targeted programs authorized through the executive branch but carried out through the CIA/JSOC. Id. However, Justice Brown failed to analyze “the complex, subtle, and professional decisions” of the military operations which are essentially professional military judgments reserved for the executive branch. Id. at 248; see Gilligan, 413 U.S. at 10 (holding military is controlled by legislative and executive branches); Al- Aulagi, 727 F. Supp. 2d at 45 (outlining courts inability “to assess the nature of battlefield decisions” or “to define the standard for the government’s use of covert operations in conjunction with political turmoil in another country.”).