Thanksgiving, which you and I will prepare for over this weekend, is the time when my thoughts turn to my own year-end gratitude and the reflection of taking stock. I imagine you are the same.
What do you take stock of? Here are some of my zones of interest:
In this time, I think about the organizations that I support with my talent and tribute.
When you take stock of your donations of talent and tribute, please think of NITA. NITA remains vibrant and impactful—zero-balance-budget and all—because of these two types of donations. When you attend NITA programs, you are taught through the volunteered talent of terrific faculty members. When you attend NITA on a scholarship, or in a public service program, you are learning because of dollars contributed to us to make it possible for us to support you.
Whether you usually contribute talent or tribute, I hope you will place NITA at the top of you giving list in 2015. We need your dollars in order to carry our missions forward.
And that you place us at the top of your list for 2016—start planning your participation in NITA now!
Please call me if you would like to talk. You will enjoy reading through The NITA Foundation section of our website for more information on the purposes of our funds. You can also catch up on what The NITA Foundation is doing by reading the latest edition of it’s newsletter, Giving Voice. Please let us know if you wish to have more information. I look forward to talking to you.
Please join those who give loyally every year. I look forward to writing my personal thank-you letter to you.
Join us. We are growing. We make a difference. NITA needs you in order to continue our organization’s huge contribution of talent and tribute.
Karen M. Lockwood, Esq.
President and Executive Director
National Institute for Trial Advocacy
Written by guest blogger Judge McGahey
I’ve previously written about movies with military justice themes (A Few Good Men, Paths of Glory) and since November 11 was Veterans Day, I thought I’d review two other movies where military justice plays a key role.
We’ll start with Breaker Morant, a 1980 film directed by Bruce Beresford and starring Edward Woodward as the title character. The film is set during the Boer War in South Africa (1899 – 1902.) Morant is an Australian officer in a mostly Australian unit organized by the British Army to combat the guerilla tactics of the white south African Boers. The unit is encouraged to deal harshly with Boer captives and Morant (and others in his command) do exactly that, engaging in actions we might now consider war crimes. The higher-ups decide to court martial Morant and two other officers, in hopes of reducing political pressures. Those higher-ups make sure that their role in the harsh treatment of the Boers is glossed over, if not completely covered up. Morant’s assigned counsel, Major J.F. Thomas, had never tried a case before. He tries to present a viable defense, but the trial is hardly fair: the overall commanding officer (who established the policy) never testifies, the defendants are barred from presenting evidence that other British officers did exactly the same thing as Morant and his men, and it becomes clear that the Australians are being scapegoated as uncontrollable colonials. The result of the trial is predictable.
Breaker Morant was a real person, an Englishman who had spent time in both Australia and South Africa. He was, in fact tried and convicted of the acts he was accused of. And yes, he actually committed them. Even so, he has become something of a hero in Australia; take a look at the extremely active website, breaker.morant.com. The movie’s director, Bruce Beresford, has expressed surprise at the way the movie is regarded by Australians: “I always get amazed when people say to me that this is a film about poor Australians who were framed by the Brits.”
Next we’ll examine a movie about men at war and what happens to them under stress. The Caine Mutiny (Columbia, 1954) was based on a best-selling book of the same name written by Herman Wouk; the book won a Pulitzer Prize in 1951. It was directed by Edward Dmytryk and had the proverbial all-star cast: Van Johnson, Fred McMurray, and, as the mentally-ill commanding officer, Captain Queeq, Humphrey Bogart, in his last film. (He received a Best Actor nomination, losing to Marlon Brando for On the Waterfront.) The film tells the story of a destroyer-minesweeper, the U.S.S. Caine, and her officers and men. Queeg takes over from the slovenly Captain DeVriess, and immediately tensions arise between him and his junior officers, as Queeg is a stickler for military protocol, even to the point of absurdity. A series of incidents involving a severed tow rope, missing strawberries and yellow dye on the water during an island landing cause those junior officers first to question Queeg’s competence as an officer, and eventually Queeg’s sanity. During a typhoon, Lt. Maryk (Johnson), having been previously egged on by another officer, Lt. Keefer (McMurray), relieves Queeg of command after Queeg’s orders appear to put the Caine in danger and Queeg freezes on the bridge..
The Navy decides this was mutiny, and puts Maryk and another junior officer on trial, where a guilty verdict could lead to execution. They are reluctantly defended by Lt. Barney Greenwald, brilliantly portrayed by Jose Ferrer. The trial scenes are wonderfully done. The prosecutor, Lt. Commander Challee (E.G. Marshall, Juror Number 4 in 12 Angry Men), presents a powerful case, including psychiatric testimony that Queeg is sane. It looks as if a conviction is certain, until Greenwald cross-examines Queeg – and things change rapidly. The officers are acquitted, but Greenwald takes his own clients to task for failing to help Queeg when he needed help. The film leaves you a bit unsure exactly who the good guys are – except for Greenwald.
The Caine Mutiny was extremely well received. In addition to Bogart’s nomination, the film was nominated for six other Oscars, including Best Picture. Wouk had early adapted the novel for the stage in a play titled The Caine Mutiny Court Martial, focusing only on the trial; the play ran on Broadway for a year.
Both Breaker Morant and The Caine Mutiny are well worth your time. They are thoughtful about the effects of war on those who fight it and use the courtroom procedures we’re familiar with to delve into the behavior and character of those men. We should never forget that war can cause good people to do awful things – and that sometimes the law has a difficult time reconciling those behaviors with our concepts of justice.
 As before, my caveat: I’ve never served in the military, so I’ll leave it to Mike Roake, Charlie Rose, Chris Behan and others who have served to discuss the accuracy of the procedures shown in these films.
Guest author: Anna Marie Gallagher
On November 9, 2015, the U.S. Court of Appeals for the Fifth Circuit upheld a Texas district court’s injunction blocking the Obama Administration from implementation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and an expanded version of Deferred Action for Childhood Arrivals (DACA). It is widely anticipated that the decision in Texas v. United States will be appealed to the United States Supreme Court.
DAPA is one of a series of executive actions announced by President Obama on November 20, 2014, to benefit undocumented parents of U.S. citizen and lawful permanent resident children. The proposed program would provide these parents the ability to remain in the United States with employment authorization for a period of three years. To qualify, they will have to prove that they have five years of residence in the United States and that they are not enforcement priorities under Department of Homeland Security (DHS) guidelines. An estimated 4.1 million individuals would qualify for this program if the United States Supreme Court overturns the Fifth Circuit’s decision.
The November 20, 2014, executive action also called for the expansion of DACA to qualifying applicants regardless of their age at the time of application. DACA provided deferred action and employment authorization to hundreds of thousands of young undocumented men, women, and children who came to the United States prior to their sixteenth birthdays. The proposed expansion removes the age cap on the filing deadline, among other things.
As background, in December 2014, governors and attorneys general from twenty-six states sued the government to stop the implementation of DAPA and the expanded version of DACA. A number of states, cities, police chiefs, and immigrant advocates filed amicus briefs against the lawsuit, arguing the significant benefits that will result from the implementation of DACA and DAPA. On February 16, 2015, Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas issued a preliminary injunction preventing the Administration from implementing the programs. In his ruling, Judge Hanen recognized that the government has the discretion to decide whom to remove from the country but found that the Administration must engage in notice-and-comment rulemaking before it can grant work authorization to proposed beneficiaries.
On February 23, 2015, the Department of Justice (DOJ) filed a motion for an emergency stay of the injunction while its appeal was pending, arguing that the injunction would cause irreparable harm to the Department of Homeland Security. DOJ argued that the injunction prevents DHS from prioritizing its limited enforcement resources to focus on serious security threats and that it undermines the significant work done by the agency to prepare for implementation of the programs. It also argued that DACA and DAPA are necessary to help local law enforcement make their communities safer. The motion for the stay of the injunction was denied in May 2015. DOJ’s appeal relating to the preliminary injunction filed on March 11, 2015, with the Fifth Circuit was denied on November 9, 2015, in a 2–1 decision.
The Fifth Circuit’s decision comes as a blow to the Obama Administration’s efforts to provide temporary relief to deserving individuals and to strengthen enforcement efforts against serious threats to the security of the United States. The lawsuit prevents millions of individuals who have been members of communities across the United States from coming out of the shadows and working on the books to contribute to our economy and to live without fear with their families and in their communities.
It is almost certain that the Supreme Court will accept the case, but the big question is when. For the matter to be heard this term, the Court must conference the case by end of January 2016. This means that all parties must submit their briefs by that date so the Justices and their clerks can properly review and consider them. Texas will have thirty days to respond to the filing and can request extensions. Given the tight timeframe, there is no guarantee that the Court will consider the petition during this term. If the petition is delayed, it will be kept alive through the presidential election, leaving it in the hands of the next administration. Hillary Clinton has stated in the past that she would expand on President Obama’s executive actions. If that is any indication of her position, it is likely that her administration will aggressively pursue the petition should she be elected. However, if a Republican wins, he or she will withdraw President Obama’s executive actions and the case will become moot.
Our thanks to Anna Marie Gallagher, a shareholder at Maggio + Kattar in Washington, D.C., for contributing this post to The Legal Advocate. Ms. Gallagher heads the firm’s immigration litigation practice and has practiced immigration, refugee, and human rights law for more than two decades in the United States, Central America, and Europe. She has taught immigration and refugee law in the United States and Europe, and is a frequent speaker and author on immigration topics. She may be reached at firstname.lastname@example.org.
Written by David Malone, trial attorney, author, consultant, and teacher, Deposition Rules 6th Edition is the essential deposition handbook for busy practitioners who want to learn better advocacy skills. This handbook is convenient with on-the-go references so anyone can search what they are looking for quickly and efficiently.
Malone has worked with NITA since 1979 and knows our values when it comes to teaching advocacy skills. He acknowledges that practitioners lead busy lives and with this 6th Edition, Malone answers the most frequently asked questions about depositions. This edition also incorporates all amendments current to December 2014 to the Federal Rules of Civil Procedure as well as the Federal Rules of Evidence.
Retail Price: $35
We at NITA would like to congratulate Judge Richard M. Markus for his outstanding achievement as he was awarded the 2015 Thomas J. Moyer Award for Judicial Excellence at the Ohio Judicial Conference Annual Meeting in Columbus, Ohio State Bar Association. Judge Markus, along with one other recipient, received this recognition of outstanding commitment to the administration of justice that Chief Justice Moyer exhibited. The award was established in 2010 in honor of the late chief justice and is continuously awarded to a current or former Ohio judge who displays excellent qualities with integrity and fairness.
Judge Markus has not only served in the judicial court system, but he is also an author and a teacher. He attended Law School at Harvard University and went on to present many lectures to lawyers and judges. Consequently, Judge Markus is a co-founder of NITA. He has contributed his teaching skills widely here in order to help others enhance their advocacy skills. He has served as a Faculty member for a number of our programs since 2006 including Building Trial Skills and Public Service Attorney Trial Skills.