Category Archives: Uncategorized

We Are Not Afraid

I have spent most of the day cooped up in my apartment while the entire Boston area was essentially shut down with a massive manhunt going on just across the Charles in Watertown.

But you can’t shut down a city indefinitely. We may not have the remaining suspect in custody yet but we return to living life. The T is back up and running, the Shelter-In-Place orders have been lifted, and we here in Boston are hitting the town tonight. Because we can’t be intimidated. Because we are not afraid.

-Zachary Cloud

Safe But Heartbroken In Boston

I don’t really have the words to express the pain today’s event has caused me…has caused all of us here in Boston. Thankfully, I’m safe. I’d contemplated going to see the Marathon today but opted not to. I stayed home trying to catch up on work.

And now life goes on…because it must. Because this act of terrorism won’t shake us or break us. It’s a new day and I feel blessed that I am alive and well to live it.

-Zachary Cloud

Wherein It Just Keeps Getting Worse

Drew Peterson’s attorney Joel Brodsky was questioned today in the evidentiary hearing connected to Peterson’s motion for a new trial. I didn’t think it was possible for Brodsky’s conduct to get more questionable.

I was wrong.

For example:

Brodsky testified this afternoon that he entered into a yearlong contract with a publicist in 2007 and said he was paid money by ABC television. Brodsky’s former legal partner testified this morning that Brodsky often focused on the financial benefit of representing Peterson, and a law professor testified today that Brodsky’s contract with a publicity firm violated the professional code of conduct for attorneys.

This is a big no-no and the Illinois Rules of Professional Conduct leave no room for debate on the point. Rule 1.8(d) dictates that, “[p]rior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a portrayal or account based in substantial part on information relating to the representation.” The comments to these rules illustrates why this is a problem. There, the drafters note that contracting for media rights creates a conflict of interest between the client’s best interest and the personal best interest of the lawyer. How, you ask? Well, because, “[m]easures suitable in the representation of the client may detract from the publication value of an account of the representation.” See R. 1.8(d) cmt. [9]. Put simply, then, Joel Brodsky violated the Rules of Professional Conduct.

This madness is of course in addition to the utterly insane decision to call a witness—a divorce lawyer—who introduced hearsay causing jurors to find Peterson guilty. I’ve already written on the stupidity of that decision here.

Oh but we’re not done yet!

Another member of the defense team, Reem Odeh, testified that Brodsky had allegedly threatened her and tried to intimidate her prior to her testimony this morning. Incidentally, she was testifying to the fact that Brodsky had frequently noted “how he thought the Peterson case would benefit himself and the firm.”

I’m done assuming that things can’t get any weirder or more disheartening about this case. With another day of testimony scheduled for tomorrow, who really knows how far down this rabbit hole goes?

-Zachary Cloud

It Takes A Blizzard (To Get Me Blogging)

So…uh, yea. I’ve been a little absent the past few months. But with a blizzard about to hammer us here in Boston, I saw this as a great opportunity to do some writing.

There have been a lot of goings-on in the legal community that I probably should have tried to comment on. This year marks the 50th anniversary of Gideon v. Wainwright, which is the US Supreme Court holding that all US citizens have a right to appointed counsel in criminal cases even if they cannot afford to hire one. Notably, there is a documentary entitled Gideon’s Army that has been garnering a lot of praise. I’m eager to see it and perhaps share my own own thoughts on it.

There has also been further madness relating to the Drew Peterson trial. Apparently attorney Joel Brodsky has now filed a defamation suit. At this point, I’m not even phased by all the nonsense; I just expect it.

That DOJ memo purporting to explain how it’s legal to kill Americans without any sort of judicial proceeding has now leaked and has law bloggers somewhat abuzz. Though the press and mainstream America seem less interested. Apparently it’s hard to get lay people engaged in a single-spaced 16 page legal memo heavy on legal citations. Go figure.

And all of this is just the recent stuff. In other words, I think I’ll have to come to terms with the fact that my busy schedule has prevented me from writing on all the things I might have wanted to. However, I hope to use this looming storm as a chance to write a couple longer essays on matters that I’ve been contemplating a lot as of late. With an anticipated two feet of snow effectively shutting me in, it might be my only defense against going stir crazy.

-Zachary Cloud

Some Columbus Day Updates

I am enjoying this beautiful holiday by taking some time to catch up on blogging. Here are some brief updates that I would have written on already if I had time.

1. Still no judgment in that cool British habeas case.

By now, you might know I’m a complete habeas nut and follow the law of habeas corpus on both sides of the pond. You might also know that there’s a really fascinating UK case, Secretary of State for Foreign Affairs & anor v Rahmatullah, I’ve been watching with a keen eye. See here, here, and here. Last time I wrote on the case, the UK Supreme Court had just heard oral arguments in the matter. Well, I’m still patiently waiting for them to hand down a judgment but nothing has come yet. When it does, you can be sure I’ll be posting about it!

2. Intriguing scholarship on the English Constitution.

It’s not uncommon to hear reference to England’s ‘constitution.’ As you might know, the English constitution is unwritten. Or is it? Legal scholars in the UK have been wrestling with questions about what the nature, scope, authority, &c. of the English constitution is. Today, I learned of an intriguing new article by Tarunabh Khaitan at Oxford entitled “The ‘constitution’ as a Statutory Term.” Mr. Khaitan also has a helpful post at UK Constitutional Law Group, which is where I first learned of the new paper. I am looking forward to giving the article a read.

3. Interesting US habeas news.

As I understand it, there was a notable case before the US Supreme Court last week regarding the appropriate amount of deference due to states under § 2254(d)(1) when they remain silent on questions of federal law. The case is Johnson v. Williams and here is the infamous Lyle Denniston’s preview at SCOTUSblog. Here is Lyle’s take, post oral argument as well as Tom Goldstein’s reactions (both to the oral arguments and Lyle’s post). I really need to sit down and read through the materials, listen to oral arguments, &c.

At very first blush, I fail to see what makes this case so different from prior cases addressing ‘silence’ of a state court. No doubt, there is one but I just haven’t gone through the materials enough to see the nuance. When I’ve had a chance to review Johnson in more depth, I may report back with my take.

4. Other happenings

There are plenty of other happenings that I’d love to write about but won’t. Some local, some national, and some international. There’s just not enough time in the day, sadly. Until more free time comes my way…

-Zachary Cloud

Legal Fiction: Three for One Special in June

I was unable to do anything with my side project / creative outlet Legal Fiction in April because of finals. I originally planned to double up for May but I have not really had any downtime between finals and work to do so.

So June is going to be a Three for One Special!! I am actually fairly close to completing the chapters so publication might occur in the next couple of weeks. Stay alert, stay tuned!

-Zachary Cloud

It’s About Time: Department of Justice Threatens Orleans Parish Prison

See here. As someone who has been there, I can vouch for some of what the Department of Justice has said about the Orleans Parish Prison. I remember Marlin Gusman giving some of us from Orleans Public Defenders a tour at some point in 2008 and being worried. We heard from clients that these sorts of things were going on and it’s nice to have the federal government confirm. All I can say is that it’s about time. Let’s hope that a settlement produces a consent decree…or that the U.S. Attorney brings suit.

-Zachary Cloud