The New York Times - 08.10.2019

THE NEW YORK TIMES NATIONALTUESDAY, OCTOBER 8, 2019 N A

The 45th PresidentThe Agenda

WASHINGTON — In the first
argument of its new term, the Su-
preme Court on Monday consid-
ered whether states may abolish
the insanity defense, a question
that seemed to puzzle several of the
justices, who drew conflicting
lessons from history, moral philos-
ophy, constitutional law and the
brutal crimes at the heart of the
case.
James Kahler of Kansas was sen-
tenced to death in 2011 for killing
four family members, but his law-
yers said he had severe depression
that made it impossible for him to
understand reality or to distinguish
right from wrong.
Kansas eliminated the insanity
defense about two decades ago, so
he was barred from raising the de-

fense that he had been mentally ill.

Sarah Schrup, a lawyer for Mr.

Kahler, said that was a radical de-

parture from American legal tradi-

tions.

“For centuries,” she said, “crimi-

nal culpability has hinged on the

capacity for moral judgment, to dis-

cern and to choose between right

and wrong. The insane lack that ca-

pacity.”

Idaho, Montana and Utah have

also abolished the insanity defense,

meaning that defendants in those

states cannot avoid criminal pun-

ishment by showing that their

mental illness prevented them

from knowing their actions were

wrong. Instead, defendants may

argue that they lacked the required

intent to commit the crime with

which they were charged.

The distinc-

tion matters,

Justice Stephen

G. Breyer said,

using examples.

In Kansas, he

said, defendants

are not culpable

if they do not

know what they

were doing (by,

for instance,

killing a human being under the de-

lusion that they are killing a dog).

But they are culpable, he said, if

they do not know that their actions

are wrong (by, for instance, believ-

ing a dog instructed them to kill a

human being).

“The first defendant thinks that

Smith is a dog,” Justice Breyer

said, referring to a hypothetical

victim. “The second defendant

knows it’s a person but thinks the

dog told him to do it. O.K.? What’s

the difference?”

Toby Crouse, Kansas’ solicitor

general, said states should be al-

lowed to make their own judg-

ments in defining responsibility for

crimes.

Justice Samuel A. Alito Jr. said

Mr. Kahler’s actions did not appear

to be those of an insane person.

“This is an intelligent man,” Jus-

tice Alito said, “and he sneaked up

on the house, where his wife and

her mother and his children were

staying. He killed his ex-wife. He

killed her mother. He executed his

two teenage daughters. One of

them is heard on the tape crying.

He, nevertheless, shot her to

death.”

“Now, this is the stuff from which

you’re going to make a defense he

didn’t know that what he was doing

was morally wrong, much less he

didn’t know what he was doing was

legally wrong?” Justice Alito asked

Ms. Schrup.

She responded that Mr. Kahler’s

lawyers should have been allowed

the opportunity to argue that he

was insane. “The facts are hard in

every case, and they are hard in

this case,” Ms. Schrup said. “But

what we’re talking about is an op-

portunity, a mechanism for all de-

fendants, to be able to get into the

threshold and let a jury decide.”

Before the argument began,

Chief Justice John G. Roberts Jr.

announced that Justice Clarence

Thomas was “indisposed due to ill-

ness,” and would participate in the

day’s arguments based on briefs

and transcripts. A court spokes-

woman said Justice Thomas was

resting at home and appeared to

have the flu.

Justice Ruth Bader Ginsburg,

who had missed two weeks of argu-

ments in January after cancer

surgery, asked the first question. It

came later than usual, as the jus-

tices, thanks to a new practice an-

nounced last week, will now gener-

ally allow lawyers to speak for two

minutes before peppering them

with questions.

The argument ended without ap-

parent consensus. Justice Breyer

mused that the issue the court

would decide in the case, Kahler v.

Kansas, No. 18-6135, was a pro-

found one. “It’s quite deep, this

question,” he said.

Conflicting Moral and Legal Arguments as Justices Consider the Insanity Defense

Kahler

By ADAM LIPTAK

WASHINGTON — Almost ev-
ery part of the Bill of Rights applies
to both the federal government
and to the states, but the Supreme
Court on Monday wrestled with
whether to tolerate a rare excep-
tion for non-unanimous jury ver-
dicts in criminal cases. Such ver-
dicts are forbidden in federal trials
under the Sixth Amendment but
permitted in ones held in state
court.
There seemed little doubt that
the justices would have found the
question fairly easy absent a con-
fusing 1972 decision that said the
Constitution required federal ju-
ries to render unanimous verdicts
but allowed divided state juries.
The vote was 4 to 1 to 4, and only
Justice Lewis F. Powell Jr., who
cast the controlling vote, said fed-
eral and state cases could be
treated differently.
Monday’s case, Ramos v. Louisi-
ana, No. 18-5924, concerned Evan-
gelisto Ramos, a Louisiana man
who was convicted in 2016 of
killing a woman in New Orleans.
The jury’s vote was 10 to 2, which
was enough under the state’s law
at the time. Louisiana has since
amended its state Constitution to
bar non-unanimous verdicts, but
the move came too late to help Mr.
Ramos, as it applies only to crimes
committed after 2018.
Oregon is the last state that al-
lows non-unanimous verdicts in
criminal cases.
Jeffrey L. Fisher, a lawyer for
Mr. Ramos, urged the court to pro-
tect dissenting voices on juries. “If
you have one or two members of a
minority on a jury, it could be a ra-
cial minority, it could be a political
minority, it could be a religious mi-
nority,” he said. “Are we really pre-
pared to say that those one or two
votes can be utterly canceled out?”
The Bill of Rights originally re-
stricted the power of only the fed-
eral government, but the Supreme
Court has ruled that most of its pro-
tections apply to the states under

the 14th Amendment, one of the

post-Civil War amendments.

In February, for instance, the

court unanimously ruled that the

Eighth Amendment’s excessive

fines clause applied to the states.

That left the unanimous jury re-

quirement as one of the very few

remaining outliers.

Elizabeth Murrill, Louisiana’s

solicitor general, spent most of her

time arguing that the court had

been wrong to require unanimous

juries in either state or federal

court. The Sixth Amendment does

not mention the requirement, she

said, meaning that non-unanimous

verdicts should be permissible in

both.

Justice Brett M. Kavanaugh

asked Ms. Murrill for her best ar-

guments for treating state juries

differently from federal ones

should the court reject her Sixth

Amendment argument.

“Justice Kavanaugh,” she re-

sponded, “they are concededly not

very good.”

Justice Kavanaugh also asked

about what he said was the ugly

history of Louisiana’s unanimity

requirement, saying “the rule in

question here is rooted in racism,

you know, rooted in a desire, ap-

parently, to diminish the voices of

black jurors in the late 1890s.”

In 1898, Louisiana held a consti-

tutional convention whose pur-

pose, as the chairman of its judicia-

ry committee put it, was “to estab-

lish the supremacy of the white

race in this state to the extent to

which it could be legally and con-

stitutionally done.”

Much of Monday’s argument

was a debate over respect for

precedent, a topic that has recently

consumed and divided the justices.

Justice Samuel A. Alito Jr. said

the court had been “lectured pretty

sternly in a couple of dissents” in

two recent cases in which its con-

servative majority had overturned

precedents. Justice Elena Kagan, a

liberal and the author of one of

those dissents, followed up with

questions exploring how Monday’s

case might present different is-

sues.

And Ms. Murrill, the lawyer for

Louisiana, mentioned the case not

far from the surface whenever the

justices discuss precedent — the

1973 decision that established a

constitutional right to abortion.

“The significant line of jurispru-

dence that comes to my mind is

Roe,” she said, referring to Roe v.

Wade.

A Debate to End Criminal Convictions by Split Verdicts

By ADAM LIPTAK

The justices Samuel Alito Jr. and Elena Kagan deliberated over respect for precedent on Monday.

CHIP SOMODEVILLA/GETTY IMAGES

WASHINGTON — Kevin K.
McAleenan, the acting secretary
of homeland security, was forced
offstage at Georgetown Universi-
ty’s law school by demonstrators
who shut down his planned key-
note address as they protested the
Trump administration’s immigra-
tion policies.
Almost immediately after Mr.
McAleenan was introduced to
give a speech hosted by the Mi-
gration Policy Institute, nearly a
dozen advocates and law students
in the crowd stood up holding
signs saying, “Stand with immi-
grants” and “Hate is not normal.”
Standing at the lectern in front of
the packed auditorium, Mr.
McAleenan tried to start speaking
but was drowned out by chants of:
“When immigrants are under at-
tack, what do we do? Stand up,
fight back.”
The protesters also read the
names of the migrants who have
died after being detained at the
border.
The event was the latest effort
by opponents of the administra-
tion’s hard-line immigration poli-
cies to let their grievances be
known to the policymakers carry-
ing them out. Last year, Stephen
Miller, one of the chief architects
of President Trump’s immigration
policies, threw away $80 worth of
takeout sushi, fearing that it had
been spat on after a Washington
bartender screamed at him. Pro-
testers heckled the last confirmed
homeland security secretary,
Kirstjen Nielsen, last year as she
ate at a Mexican restaurant.
“The First Amendment guaran-
tees all Americans the right to free
speech and assembly,” the De-
partment of Homeland Security
said in a statement. “Unfortu-
nately that right was robbed from
many who were scheduled to
speak and attend today’s event at
Georgetown.”
On Monday, Doris Meissner, the
director of United States immigra-

tion policy at the Migration Policy

Institute and a former commis-

sioner of the Immigration and

Naturalization Service, pleaded

with protesters to allow Mr.

McAleenan to speak. She told

them they were “robbing” other

members of the audience who

came to hear him. The demonstra-

tors said that people at the border

were being robbed of their lives.

Mr. McAleenan waited for the

chants to quiet down and tried to

speak at least three times. Visibly

frustrated, he thanked Ms. Meiss-

ner before walking off the stage.

Some people in the audience also

expressed disappointment with

the protesters. Mr. McAleenan

was scheduled to take questions

from attendees after his remarks.

“There are some very serious

issues that we can talk about in

candor in a real dialogue, or we

can continue to shout,” Mr.

McAleenan said. “I’d like to take

our dialogue today above the poli-

tics and the daily news cycle and

talk about the challenges and ef-

forts that we’ve faced over the

past year.”

He said that he especially

looked forward to the conversa-

tion since immigration lawyers,

law students and advocates were

in the crowd, before being

drowned out by the protesters,

who justified their actions.

“It’s our belief that no institu-

tion should be elevating, normal-

izing or legitimizing any of the

Trump immigration officials who

are quite honestly carrying out

policies that are rooted in the

white nationalism that Donald

Trump and Stephen Miller are so

blatantly trying to institutional-

ize,” said Nicole Regalado, the

campaign director at Credo Ac-

tion, an advocacy organization,

which helped organize the pro-

test.

She said more than a dozen or-

ganizations sent the organizers of

the event a letter requesting that

Mr. McAleenan’s invitation be re-

scinded. About 350 Georgetown

law students, faculty members

and alumni also signed a separate

petition asking for his removal.

Ms. Regalado said that the orga-

nizations specifically took issue

with Mr. McAleenan’s role in car-

rying out the administration’s

family separation policy, which re-

sulted in more than 2,600 children

being removed from their parents.

Before he was tapped to lead

the Department of Homeland Se-

curity, Mr. McAleenan was the

commissioner of Customs and

Border Protection during the ad-

ministration’s “zero tolerance”

policy.

Andrew Selee, the president of

the Migration Policy Institute,

said the organization regretted

that Mr. McAleenan was silenced.

“By drowning out the secre-

tary’s remarks, the protesters de-

prived immigration attorneys,

service providers, journalists, ad-

vocates, business leaders, law stu-

dents and many others in the pub-

lic who were in the audience from

hearing his point of view and en-

gaging in a meaningful dialogue,”

Mr. Selee said in a statement.

Sabiya Ahamed, a third-year

law student at Georgetown focus-

ing on immigration policy, said

there was “nothing to debate.”

“If we want to see his remarks,

we can just look to his polices,” Ms.

Ahamed said. “They speak louder

than his words.”

Mr. McAleenan has led the De-

partment of Homeland Security,

which is tasked with disaster re-

lief, securing the country’s bor-

ders and defending the United

States from terrorism and cyber-

attacks, at a time when the agency

has become increasingly synony-

mous with the Trump administra-

tion’s pursuit to limit legal and ille-

gal immigration to the United

States.

Under his leadership, the

agency has expanded a policy that

forces migrants to wait in Mexico

for the duration of their asylum

case and pushed multiple deals

that prevent most migrants from

Central America from obtaining

asylum at the southwest border.

Mr. McAleenan has instead tried

to push the migrants to obtain pro-

tections in Central American

countries.

Mr. McAleenan, who worked in

Customs and Border Protection

under President Barack Obama,

has also pushed back against

some of the administration’s poli-

cies, including its attempt to carry

out nationwide raids to deport mi-

grant families.

Homeland Security Chief Shouted Off Stage by Immigration Protesters

As Kevin K. McAleenan, the head of homeland security, prepared to give a speech, protesters held up signs and began to chant.

COLLEEN LONG/ASSOCIATED PRESS

By ZOLAN KANNO-YOUNGS

MIAMI — A settlement has

been reached in a Florida court

case over a disputed business deal

that resulted from an unusual

friendship that Jerry Falwell Jr.

and his wife struck with a former

pool attendant at a Miami Beach

hotel, court records show.

As part of the settlement, which

was filed Friday in Miami federal

court, Mr. Falwell will pay an un-

disclosed sum to a young man

who claimed he had been offered

an ownership stake in a gay-

friendly youth hostel, the Miami

Hostel, that Mr. Falwell and his

wife, Becki, bought in 2013.

Mr. Falwell is the chancellor of

one of the nation’s largest Chris-

tian colleges, Liberty University,

and one of President Trump’s best

known evangelical supporters.

The settlement brings to a close

a case that drew national atten-

tion over purported sexually com-

promising photographs involving

the Falwells that could have been

used as leverage against them.

Michael Cohen, Mr. Trump’s for-

mer fixer who is now in prison,

has said he intervened to help Mr.

Falwell with the photos.

After Mr. Cohen’s involvement,

the plaintiff, Jesus Fernandez Jr.,

said the case had forced him to

change his name to Gordon Bello.

His father, Jesus Fernandez Sr.,

who is no longer part of the law-

suit, became Jett Bello. The Bellos

— then the Fernandezes — had

filed the suit claiming the Falwells

had promised them a share in the

Miami Hostel. In a statement to

The New York Times earlier this

year, the senior Mr. Bello would

not further explain the name

changes, citing the pending litiga-

tion.

Mr. Falwell has denied the ex-

istence of the photographs, which

Mr. Cohen discussed with the ac-

tor Tom Arnold, an anti-Trump

crusader, in a secret recording. In

legal filings, the Falwells denied

ever promising the Fernandezes a

share of the ownership of the hos-

tel, which rents beds for as little as

$15 a night.

The $4.7 million cash purchase

of the hostel and its building — in-

cluding a $1.8 million loan from the

Falwells, according to a sworn af-

fidavit — was a business venture

with Giancarlo Granda, whom the

couple befriended poolside at a

Miami Beach hotel, the Fontaine-

bleau, in 2012. Mr. Granda con-

sulted a high school friend, the ju-

nior Mr. Bello, whose father had

worked in Miami real estate for

decades. (Mr. Falwell, who is not a

minister, spent years as a lawyer

and real estate developer.)

By the time the court case

reached an impasse in late 2015,

the fight had turned to the photos,

several people involved in the

case told The Times earlier this

year. One or more people among

Mr. Granda, the Bellos and their

lawyers were believed to have the

photos in their possession.

Mr. Cohen told Mr. Arnold in the

recording that he was going to pay

for the photographs and ensure no

copies were kept by anyone else.

He made a reference in the tape to

the “pool boy,” who could have

been Mr. Granda. But Mr. Cohen

never specified whom he planned

to pay. The payoff “never hap-

pened,” he added. A person close

to the Falwells told The Times ear-

lier this year that they did not

know of Mr. Cohen’s supposed in-

volvement until parts of Mr. Ar-

nold’s recording were released.

Mr. Falwell’s lawyer, Joshua B.

Spector, did not immediately re-

spond to a phone call and an email

seeking comment on Monday.

Neither did Michael L. Addicott, a

lawyer for the junior Mr. Bello.

Falwells Settle Court Case

Over Florida Business Deal

By PATRICIA MAZZEI