Oklahoma State Legislators! Please Make These Changes to Your State's Laws

My Facebook and Twitter accounts were abuzz yesterday with reports of this recent opinion by the Court of Criminal Appeals of Oklahoma in which the Court held that a juvenile defendant was not guilty of forcible sodomy under Oklahoma law because his victim was passed out from intoxication when the defendant forced her to engage in oral sex.  The Court noted that it was bound by the "very specific" requirements for the commission of the crime of forcible sodomy. Those five scenarios in which forcible sodomy occurs are (under 21 Ok. Stat. § 888(B)):

1. Sodomy committed by a person over eighteen (18) years of age upon a person under sixteen (16) years of age; or 

2. Sodomy committed upon a person incapable through mental illness or any unsoundness of mind of giving legal consent regardless of the age of the person committing the crime; or

3. Sodomy accomplished with any person by means of force, violence, or threats of force or violence accompanied by apparent power of execution regardless of the age of the victim or the person committing the crime; or 

4. Sodomy committed by a state, county, municipal or political subdivision employee or a contractor or an employee of a contractor of the state, a county, a municipality or political subdivision of this state upon a person who is under the legal custody, supervision or authority of a state agency, a county, a municipality or a political subdivision of this state; or 

5. Sodomy committed upon a person who is at least sixteen (16) years of age but less than twenty (20) years of age and is a student of any public or private secondary school, junior high or high school, or public vocational school, with a person who is eighteen (18) years of age or older and is employed by the same school system.

Note that "sodomy," remains undefined beyond the description provided in 21 Oklahoma Statutes §886 which eloquently states that sodomy is "the detestable and abominable crime against nature." More on this later.

Following this ruling, outrage ensued, with several outlets (e.g.: here and here) erroneously reporting that Oklahoma law provides that "it isn't rape if the victim is drunk." This is actually untrue, as Oklahoma's law against rape (Ok. Stat. § 1111(A)(4)) specifically provides that the definition of rape includes sex with one who "is intoxicated by a narcotic or anesthetic agent, administered by or with the privity of the accused as a means of forcing the victim to submit."

Oh, hang on, I should clarify that the rape-by-intoxication crime applies only when the victim is not the perpetrator's spouse. More on this later.

Oklahoma legislators announced that they are working to close this loophole in the law against forcible sodomy. If the legislature copies the language above from subsection (A)(4) of Oklahoma's rape statute into the forcible sodomy statute, this should solve the problem. To any Oklahoma state legislators who are reading this post, please do that.

While doing the research to write the post so far, however, I discovered some other areas of Oklahoma criminal law that may be due for some revision. I encourage all of my readers, especially those who are Oklahoma state legislators, to continue reading beyond the break.

Non-Disparagement Agreements With the Government and the First Amendment

Eugene Volokh wrote yesterday about a settlement agreement between a former employee of a Veterans Affairs Hospital in Washington. The settlement agreement, entered into by the parties in January 2013, contained a provision barring the former employee from:

. . . making any complaints or negative comments to any member of Congress or their staff, or any newspapers or media or their staff, or any other public forums, about the facts of this Settlement Agreement or the facts or conditions that led up to this Settlement Agreement.

Volokh notes that the Equal Employment Opportunity Commission recently found that the provision above violated the former employee's First Amendment rights.  I have written previously about non-disparagement agreements in the context of contracts between private parties. As I argued in that post, non-disparagement agreements hidden in contracts of adhesion between large companies and private consumers may be unconscionable and therefore unenforceable.

Non-disparagement agreements that are parts of settlement agreements between private parties are a different story. Typically, the parties are both represented by counsel and reach the settlement agreement after negotiation over the agreement's terms. If those terms contain a provision prohibiting one of the parties from disparaging the other, or speaking about the facts giving rise to the litigation, the term will likely be enforceable as a negotiated provision of an agreement. From prior research, I am aware of the Maryland Court of Special Appeals opinion in Smelkinson Sysco v. Harrell holding this to be the case, and Volokh cites Cohen v. Cowles Media in support of this claim.

But what of non-disparagement agreements between private parties and government entities? These agreements appear to raise First Amendment concerns because government action is involved. Volokh's post highlights one such example. Julia Craven points out similar provisions in settlement agreements reached in excessive force lawsuits against police officers. Does prohibiting the private party from speaking about the facts giving rise to the litigation violate that party's first amendment rights?

Volokh thinks it might:

Now whether such agreements, entered into by the government, are constitutional is a complicated question. Private parties often do enter into various confidentiality and nondisparagement agreements, and they’re generally enforceable. (See, e.g., Cohen v. Cowles Media Co. (1991).) The government is subject to First Amendment constraints, even when it’s acting as contractor; and I’m inclined to think that such a nondisparagement agreement, aimed solely at preventing embarrassment to the employer (rather than, say, preserving client privacy or national security secrets), is unconstitutional. Still, it’s not completely clear what the rules are here.

I disagree with Volokh's inclination (although I agree that the rules are unclear). If the parties have reached a negotiated settlement agreement in which a private party agrees to curtail his or her speech in exchange for a monetary payment or other action by the government, this strikes me as a negotiated waiver of First Amendment rights. Waivers of constitutional rights may be permitted if they are knowing and voluntary -- consider, for example, the vast majority of criminal cases resolved through plea bargains where defendants give up their right to a jury and right to confront witnesses (see also: DH Overmyer Co. v. Frick Co. for a more general discussion of waivers).

Knowing and voluntary waivers of First Amendment rights may also be constitutional. In Leonard v. Clark, the Ninth Circuit upheld the Portland Fire Fighters Association's agreement with the City of Portland providing in relevant part that legislation supported by the Union that resulted in increased payroll costs to the City would be charged against the applicable salary agreement with the Union. The Union contended that this violated its First Amendment right to petition the government, and the Ninth Circuit disagreed, holding that the Union had made a knowing, voluntary, and intelligent waiver of its First Amendment rights.

Another example is Estate of Barber v. Guilford County in which the Court of Appeals of North Carolina upheld a settlement agreement between a private party and the Guilford County Sheriff's Department in which the private party agreed not to use the term "murder" with respect to a certain Deputy. The Court of Appeals found that the waiver of First Amendment rights was knowing and voluntary, and therefore enforceable.

While I think that there is a decent argument that parties can be permitted to knowingly and voluntarily waive their First Amendment rights in a negotiated settlement with the government, the case law on this topic is underdeveloped. As discussion on these provisions in the public and private context continues, I look forward to seeing how the courts treat these agreements.

On the other hand, should awareness of non-disparagement agreements continue to grow, I would not be surprised if government entities began shying away from them. As Volokh points out, the presence of such agreements raises serious political accountability questions. If more people learn that government entities are requiring parties to sign non-disparagement agreements, speculation over what the government is trying to hide may end up being more damaging than the facts themselves.

In Washington, Your Trash is Private, But Not Your Abandoned DNA

So reports the Seattle Times:

Seattle’s ordinance allowing garbage collectors to look through people’s trash — to make sure food scraps aren’t going into the garbage — was declared “unconstitutional and void” Wednesday afternoon by King County Superior Court Judge Beth Andrus.

The Court's order is here.  The Court held that looking through people's garbage was an unconstitutional search in violation of resident's reasonable expectation of privacy.

"But wait!" one may say, "What about California v. Greenwood, in which the United States Supreme Court held that there was no Fourth Amendment violation when officers searched the trash bags a suspect left to be picked up on the curb in front of his house?"

To answer the inquisitive Fourth Amendment enthusiast: Washington law governing searches and seizures provides a heightened level of protection. Here is the relevant language from the Court's order:

The Washington Supreme Court diverged from California v. Greenwood when analyzing the issue under Art. I, §7. In State v. Boland, 115 Wash.2d 571, 800, 800 P.2d 1112 (1990), the Supreme Court held that under our state constitution, a defendant's private affairs were unreasonably intruded on by law enforcement officers when they removed garbage from his trash can and transported it to a police station to be searched by state and federal narcotics agents. The Supreme Court held that any resident who places garbage in a can and puts it on the curb for collection reasonably believes the garbage will not be subjected to a warrantless governmental search. 115 Wash.2d at 578. "While a person must reasonably expect a licensed trash collector will remove the contents of his trash can, this expectation does not also infer an expectation of governmental intrusion." Id. at 581. In other words, we expect the collector to pick up our garbage and remove it for proper disposal; we do not expect that the government will search the contents of our garbage bags to identify evidence of wrong-doing.

On the one hand, the court's reliance on Washington's unique constitutional privacy protections and case law limits the scope of this ruling.  But on the other hand, this ruling highlights how state constitutions may provide more protection than the federal constitution.

The logic behind Washington's protection of privacy in trash has its limits. Elizabeth Joh noted the potential for the court's order to effect the law governing expectations of privacy in abandoned DNA (which is what interested me in this case in the first place). After some digging, however, I found that defendants would be hard pressed to extend State v. Boland or the logic of this more recent trash ordinance injunction case to the government's collection and testing of abandoned DNA.

In State v. Athan, the Washington Supreme Court found no violation of Article I, section 7 of the Washington State Constitution when the police employed a creative scheme to obtain a suspect's DNA:

The detectives invented a ruse to obtain Athan's DNA without making Athan aware they had resumed investigating Sumstad's murder. Posing as a fictitious law firm, the detectives sent Athan a letter inviting him to join a fictitious class action lawsuit concerning parking tickets. The letterhead contained the names of the "attorneys," all of whom were employed by the SPD. Believing the ruse to be true, Athan signed, dated, and returned the enclosed class action authorization form and attached a hand-written note stating, "if I am billed for any of your services disregard my signature and my participation completely." Ex. 53.

 ¶ 6 Athan's reply was received by Detective Diaz, one of the "attorneys" listed on the letterhead. Without opening it, Diaz gave the letter to another detective who forwarded it to the crime lab. A lab technician opened the letter, removed and photographed the contents, cut off part of the envelope flap, and obtained a DNA profile from saliva located on the flap. The DNA profile from the envelope matched the DNA profile from the semen found on Sumstad's body. Based primarily on the results of the DNA testing, the prosecuting attorney filed an information and probable cause statement to secure an arrest warrant for Athan.

This, the Washington Supreme Court held, did not violate Washington's constitutional equivalent of the Fourth Amendment.  Here is the relevant analysis:

We find there is no inherent privacy interest in saliva. Certainly the nonconsensual collection of blood or urine samples in some circumstances, such as under the facts of Robinson, invokes privacy concerns; however, obtaining the saliva sample in this case did not involve an invasive or involuntary procedure. The relevant question in this case is whether, when a person licks an envelope and places it in the mail, that person retains any privacy interest in his saliva at all. Unlike a nonconsensual sampling situation, there was no force involved in obtaining Athan's saliva sample here. The facts of this situation are analogous to a person spitting on the sidewalk or leaving a cigarette butt in an ashtray. We hold under these circumstances, any privacy interest is lost. The envelope, and any saliva contained on it, becomes the property of the recipient.

The Court goes on to consider and dismiss concerns that DNA may reveal a great deal of information about a suspect, noting that in this case, the testing done on the DNA was restricted to the defendant's identity.

Under Article I, Section 7 of the Washington State Constitution, you can reasonably expect that the government will not search through trash that is placed on the curb for collection. It is not reasonable, however, to expect that the government will not test the DNA in your saliva on an envelope you mail to what you think is a law firm. While states may protect rights beyond protections found in the United States Constitution, Washington teaches us that these extended protections may end up being quite limited in scope.

Arbitration by Combat: The Consumer-Friendly Approach America Needs

A former classmate of mine, Amanda Werner, co-authored this article with Sonia Gill for some obscure political website.  Werner and Gill and criticize corporations' practices of drafting agreements that require consumers and employees to submit to binding arbitration rather than filing lawsuits. While I thought that Werner and Gill made some interesting points, their blanket attack on arbitration is a bit overbroad.  While certain forms of arbitration may preclude class action lawsuits or favor bigger businesses over consumers, the article ignores a woefully under-discussed form of alternative dispute resolution (ADR) that avoids many problems that traditional arbitration presents.

The arbitration I am referring to is, of course, Arbitration by Combat, in which parties to a contract agree that any dispute arising under the contract shall be submitted to binding arbitration in the form of trial by combat. Under a typical agreement the parties would each select a champion from a common pool and these champions would duke it out -- likely in the form of fencing or some other form of non-lethal combat in order to avoid prohibitions on dueling that exist in several states. This form of arbitration is under-utilized, but a version of it does exist in at least one contract of which I am aware.

Werner and Gill level several criticisms against arbitration, none of which apply to arbitration by combat.  Take for example this point:

If you have a credit card or checking account, there is a good chance you have signed away your legal rights in one these rip-off clauses. The same is true if you have a cellphone, bought a car from a dealership or attended a for-profit college. Many American workers will also find themselves unable to seek relief in court when wronged by their employer. In just the past 10 years, forced arbitration clauses have become so ubiquitous in American life that many people will find they have signed away their rights without even knowing it.

Arbitration by combat is anything but ubiquitous. This form of ADR is rare enough that companies adopting it will likely grab headlines, or at least footnotes in whimsical law review articles. Consumers contracting with these innovative companies will likely be aware of the unique dispute resolution procedures they are agreeing to. In fact, customers may choose to do business with these companies because of their progressive stance towards new and exciting forms of ADR. For corporations out there reading this post, this may be something to keep in mind...

What about these other arguments against arbitration?

Arbitration substitutes an unaccountable private decision maker for an impartial judge and jury, and consumers have little opportunity to present evidence or appeal a bad decision. Unlike a public court case, an arbitration is a closed proceeding in which evidence and decisions are often kept secret, leaving law enforcement agencies, regulators and members of the public with no way to monitor systemic corporate misconduct. Forced arbitration amounts to a license to steal, since companies have little incentive to correct bad behavior if they can get away with it — and even profit from it.

. . . 

Forced arbitration is inherently biased in favor of corporations because arbitration firms rely on repeat corporate players to bring in continued business for future disputes. This dynamic encourages the well-documented “repeat player bias” in arbitration: Companies that frequently arbitrate are far more likely to prevail than consumers with a one-time complaint. After all, arbitrators cannot stay in business if they bite the hand that feeds them.

The criticism of an unaccountable decision maker does not apply to arbitration by combat because the method of resolving disputes through trial by combat relies on the skills of the combatants rather than a third party's judgment. In a typical arbitration by combat scenario, the corporation and consumer would choose from a pool of potential combatants who would then do battle with one another. The party whose champion is victorious prevails in the dispute, and the matter is resolved.

Combatants in such a system are not likely to pander to the interests of corporations or consumers. Rather, the goal of the combatants will to have as strong a track record as possible, meaning that their top priority will be to effectively represent the party that has chosen them. The problem of "repeat player bias," therefore does not apply to arbitration by combat.

Additionally, if, as Werner and Gill contend, law enforcement agencies have no way of monitoring the internal processes of arbitration, arbitration by combat participants would be able to sidestep the obstacle of illegality which may otherwise cripple the integrity of an arbitration by combat contract. Contracts may require parties to agree to the rule that the first rule of arbitration by combat is that the parties not talk about arbitration by combat, or something to that effect.

In short, while Werner and Gill's article is notable, its blanket criticism of all arbitration is unfair. I urge the authors to take a closer look at all of the benefits of arbitration by combat before simply leaping to praise "constitutional and statutory rights."

How to Get Away With Unethical Lawyering, Season 1, Episode 3

At the time I am writing this post, I have seen all of Seasons One and Two of How to Get Away With Murder. To date, about two minutes of Season One, Episode Three remain my favorite moment of the show, as they contain a perfect storm of outrageous ethical violations resulting not in prosecution, expulsion, or reprimand, but in reward for one of the show's main characters. It's outrageous, egregious, preposterous, and represents the law-ignoring mayhem that makes How to Get Away With Murder such fun for nitpickers like myself.

This is the third in my series of posts detailing the ethical violations in How to Get Away With Murder. My first post from a year and a half ago is here, and my most recent post on Episode Two is here. As always, the Pennsylvania Rules of Professional Conduct are my go-to authority on the characters' ethical violations.

That's it for the background, now on to the condemnation...

How to Get Away With Unethical Lawyering, Season 1, Episode 2

Long ago I wrote a post on the first episode of How to Get Away With Murder detailing the plethora of ethical violations committed by the characters. After writing that post, however, work got busier, other legal issues grabbed my attention, jobs changed, and How to Get Away With Murder was not yet on Netflix. My attention turned to other things, and the show (and even blogging) fell off my radar.

Today, I begin to remedy this state of affairs.

This is the first of a regular series of blog posts in which I issue-spot the ethical violations in How to Get Away With Murder. Unlike other commentators who highlight the broader inaccuracies in the show's portrayal of the legal profession, these posts will focus primarily on the ethical violations committed by the show's characters. As with my first post, I will cite to Pennsylvania's Rules of Professional Conduct.

This post (and those to follow) contain spoilers for those who have not yet seen the show. My posts will start with Season One and both seasons of the show are on Netflix, so those of you who want to watch the show and avoid spoilers should have no difficulty catching up.