GateHouse: Buck v. Bell: The high court’s low point

Matthew T. Mangino

GateHouse Media

January 17, 2020

There is a scene in the American film classic “Judgment at Nuremberg” where defense attorney Hans Rolfe, played by Maximilian Schell, is cross-examining a Nazi judge about the Nazi sterilization of undesirable women. Schell cites a case where the high court of another country authorized the sterilization of a “feeble-minded” woman who was the daughter of a “feeble-minded” mother. The court opinion concluded, “Three generations of imbeciles are enough.”

Schell dramatically concluded his cross-examination by revealing that the author of the opinion was the vaunted American jurist Oliver Wendell Holmes. “Judgement at Nuremberg” was a fictional account of the war crime trials of German judges. However, Justice Holmes’ opinion in Buck v. Bell - which upheld the sterilization of women in the state of Virginia - was indeed cited in Nuremberg.

During the trial of German SS Officer Otto Hoffman, his defense cited Buck v. Bell as proof that a so-called enlightened country like the U.S. was also involved in the “science” of human improvement through controlled breeding. In the U.S. we called it eugenics, in Nazi Germany it was referred to as creating the master race.

Carrie Buck was born and raised in Charlottesville, Virginia. She became pregnant at age 16. Her foster parents had her institutionalized as a “feeble-minded moral delinquent,” despite her claims that she had been assaulted by their nephew.

When she gave birth, her child was adopted by her foster parents. Buck was sent to the Virginia State Colony for Epileptics and Feeble-minded in Lynchburg. Buck’s mother was already a resident there.

Just prior to Buck’s commitment, Virginia enacted a new law authorizing sterilization of, among others, the feeble-minded and the socially inadequate. With three generations available for examination, the colony set out to prove that the Buck women were defective. They sought to have Carrie Buck sterilized under the new law.

The Supreme Court supported Buck’s sterilization by a vote of 8 to 1. Holmes’ 1927 opinion is remembered as containing some of the most infamous language ever delivered by the high court.

According to the USA TODAY, Carrie Buck was the first victim of the 1924 sterilization law. As a result, about 8,300 Virginians were involuntarily sterilized. The law was repealed in 1974, but Buck v. Bell has never been overturned.

State laws permitting sterilization of individuals deemed unfit to reproduce - most commonly institutionalized persons with mental illness, or even conditions such as epilepsy - were common in the first half of the 20th century. According to the USA TODAY, more than 65,000 people were sterilized under such laws, which were enacted in more than 30 states.

In 2010, Paul Lombardo, a law professor at Georgia State University took a close look at the plight of Carrie Buck and other women subject to draconian sterilization regulations. His book, “Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck,” revealed that the Buck women were not feeble-minded imbeciles.

Through his research, Lombardo found report cards for Carrie and her daughter Vivian. Buck had passed each year with “very good” marks. Vivian had made the honor roll. There was nothing to suggest any mental deficiency in either of them. Unfortunately, Vivian died at age 8.

It is astonishing that the United State was, not so long ago, a leader in eugenics. Leading medical professionals, legal scholars and lawmakers subscribed to a theory that espoused terminating the reproductive rights of the mentally ill, intellectually disabled or other “undesirables.”

Even more appalling, Holmes, a civil war hero himself, would in the wake of the horrors of World War I, introduce his argument in support of sterilization in the following manner, “We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices.“
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book “The Executioner’s Toll, 2010” was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter at @MatthewTMangino.

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NEWSWEEK: EX-WHITE HOUSE ETHICS CHIEF CALLS MCCONNELL A 'PERJURER' AFTER SENATOR TAKES IMPEACHMENT OATH: HE SAID 'THE EXACT OPPOSITE'

Senate Majority Leader Mitch McConnell was branded a "perjurer" by former President George W. Bush's ethics chief, after the Republican senator took an oath swearing impartiality in the impeachment trial of President Donald Trump, reported Newsweek.

McConnell has explicitly indicated he has no intention of being impartial, vowing to work closely with White House counsel and Trump as the trial approached. Richard Painter, Bush's chief ethics lawyer from 2005 to 2007, denounced the senator on Twitter for contradicting himself by taking the oath.

"This man just swore an oath saying the exact opposite. This man is a perjurer," Painter tweeted, accompanied by a December NPR article featuring McConnell vowing to be anything but impartial during the trial.

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Trump adds Alan Dershowitz and Kenneth Starr to defense team

President Trump has added some high-profile lawyers to his legal team, including Harvard emeritus law professor Alan Dershowitz and former independent counsel Kenneth W. Starr, reported the Washington Post.

Word of the new firepower came as House impeachment managers and Trump’s lawyers scrambled to produce legal briefs ahead of the Senate’s return Tuesday after the holiday weekend.

The Senate trial opened Thursday amid new allegations about Trump’s dealings with Ukraine, including an assertion from Lev Parnas, a former associate of Trump’s personal lawyer Rudolph W. Giuliani, that Trump knew of Parnas’s role in the effort to dig up dirt in Ukraine that could benefit the president politically.

The impeachment charges center on the allegation that Trump withheld military aid and a White House meeting to pressure Ukraine to investigate his political rivals, including former vice president Joe Biden and his son Hunter Biden.

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Texas carries out 1st execution of 2020, seven more scheduled through May

The 1st Execution of 2020

Texas, the state that has put to death more people than any other by far, carried out the nation’s first execution of the decade Wednesday.

John Gardner was executed for the 2005 Collin County murder of his soon-to-be ex-wife. Tammy Gardner was shot and killed in her home weeks before the couple’s divorce was finalized, according to court records. She called 911 before she died to say her husband had shot her, according to the Texas Tribune.

With no pending appeals, John Gardner was taken into Texas’ death chamber in Huntsville and injected with a lethal dose of pentobarbital at 6:20 p.m. He was pronounced dead 16 minutes later.

Five of his friends and a spiritual adviser were expected to watch through a glass pane in a small room, according to a prison witness list. Tammy Gardner's mother, daughter and son planned to stand in an identical room next door. In his final words, he told his friends he loved them after apologizing to the victim's family.

"I would like to say sorry for the grief I have caused. I hope you find peace, joy and closure. Whatever it takes to forgive me. I am sorry. I know you cannot forgive, me but I hope one day you will," the 64-year-old man said.

John Gardner had a history of domestic violence, including the shooting of a previous wife who later died from her injuries, court records state.

He had argued for years that his crime should not have been prosecuted as a capital murder, which is the only crime in Texas that can result in the death penalty. A capital murder conviction in his case required the jury to decide that the killing was committed during another felony crime — home burglary or retaliation for his wife being a witness in their upcoming divorce proceeding.

Instead, his appellate attorneys said, John Gardner’s trial lawyers should have raised an “abandonment rage” defense. They argued that he didn’t break into his wife’s house and that he shot her to prevent her from leaving him, not because she was going to testify against him in court. Texas and federal courts rejected the argument.

The Gardners had been married for more than five years, and court records indicate it was an abusive relationship. Tammy Gardner’s friends and relatives testified at trial that her husband had put a gun to her head before and that she showed up to places with bruises on her face. After she filed for divorce, they said that she was terrified for her life and that John Gardner was harassing her, asking if she was going to go through with it.

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The day of the murder, her daughter said John Gardner was repeatedly texting his wife about the divorce and asked, “YES OR NO?”

At trial, while jurors weighed whether to sentence John Gardner to death or life in prison without the option for parole, his sister testified that they had grown up with abusive parents. Their father, a Baptist preacher, would interrupt church services to loudly beat his son with a belt in the hall, she said. John Gardner's appellate attorneys later said trial lawyers didn't properly search for other evidence that could have turned the jury toward life.

The slaying wasn’t John Gardner’s first domestic violence conviction. Three of his previous four wives had also reportedly been abused by him, according to a federal court ruling. In 1983, he was convicted of aggravated assault in the shooting of his wife at the time, Rhoda Gardner, who was pregnant and later died from her injuries. He served two years of an eight-year sentence in Mississippi. After two years on parole, he was again imprisoned after being accused of assaulting his new wife’s daughter, who required hospitalization, and kidnapping his wife at knifepoint.

At the Tammy Gardner murder trial, prosecutors also presented evidence that John Gardner sexually assaulted his wives’ young daughters.

His appellate lawyers argued most recently to the U.S. Supreme Court about the abandonment rage defense. They said lower courts had wrongly rejected such claims.

“[John Gardner’s] violent domestic history further supports the fact that he abused or killed his former spouses and their children ‘to manage his relationships,’ and not because of their status as a prospective witnesses who would testify against him,” his attorney, Lydia Brandt, wrote in a petition. “The killing of Tammy Gardner was an estrangement killing — which is not a capital murder offense.”

If he had been convicted of murder, not capital murder, the harshest punishment he would have received is life in prison. The Texas Attorney General’s Office argued to the high court that John Gardner killed his wife because of the upcoming divorce, where she was a prospective witness, and not earlier at the time of the breakup.

John Gardner’s appellate attorneys also said the lack of evidence of a forced entry showed that he wasn’t committing a burglary, the other felony that could trigger the capital murder offense. The state argued Tammy Gardner’s 911 call and her fear for her life indicated she would not willingly let him into her home.

“In fact, uncontrollable rage triggered by abandonment makes it more likely Gardner entered Tammy’s home without her effective consent and for the purpose of harming her,” wrote Texas Assistant Attorney General Matthew Ottoway.

Texas has seven more executions scheduled through May.

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Pelosi designates 7 House managers to prosecute Trump impeachment trial

House Speaker Nancy Pelosi  announced the seven House Democrats managers who will act as the "prosecutors" in the Senate impeachment trial of President Donald Trump, reported NBC News.

The managers are: Reps. Adam Schiff of California, who will be the lead manager; Jerry Nadler of New York' Hakeem Jeffries of New York; Jason Crow of Colorado; Zoe Lofgren of California; Val Demings of Florida; and Sylvia Garcia of Texas.

The managers have varied biographies: Schiff was a federal prosecutor; Demings was a police chief; several are attorneys, and Lofgren was a staffer on the House Judiciary Committee during the Nixon impeachment and a House member during the Clinton impeachment.

"This is about the Constitution of the United States and it's important for the president to know and Putin to know that American voters — voters in America — should decide who our president is," Pelosi said at a press conference with the managers.

She said the House would vote today to approve the managers and transmit the two articles of impeachment to the Senate. The trial is set to begin on Tuesday; it's not yet clear if witnesses will be called.

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Trump's defense team for Senate impeachment trial is taking shape

President Trump's defense team for his Senate impeachment trial is taking shape, reports NPR.

Here are some of the lawyers expected to be in the room when the Senate trial begins:

Pat Cipollone

Cipollone will lead the team. He played a key role in the House impeachment inquiry, writing aggressive letters to House investigators to deny congressional subpoenas. He mainly stayed out of public view, but he will now take a more prominent role. 

"I know that he's held in high esteem by the president," said Ty Cobb, a former White House lawyer.

Trump picked Cipollone, who served as an outside adviser during the Mueller probe, to replace Don McGahn as White House counsel in October 2018.

Jay Sekulow

Sekulow is a personal attorney to Trump. He was a key player in the president's defense during former special counsel Robert Mueller's two-year investigation into Russian interference in the 2016 election.

"He's probably the best constitutional lawyer who will be participating," said Cobb, who worked closely with Sekulow on the White House response to the Russia investigation. 

Sekulow, the chief counsel for the firm American Center for Law and Justice, has also represented Trump on other matters, including the fight over the president's tax returns. He is known for his advocacy on religious liberty issues.

"As the president's private counsel, since I've been involved in all of these inquiries since the beginning, we thought it was then appropriate," said Sekulow of joining the impeachment defense. 

Pat Philbin

Pat Philbin is a deputy to Cipollone. A graduate of Harvard Law School and former partner at Kirkland and Ellis, Philbin clerked for Supreme Court Justice Clarence Thomas. Philbin later served in senior positions in the George W. Bush Justice Department.

As deputy assistant attorney general, Philbin drafted opinions on behalf of the Bush administration in 2001, arguing that President George W. Bush had the authority under the Constitution to establish military commissions at Guantanamo Bay to try to punish people tied to the Sept. 11 attacks.

Mike Purpura

Mike Purpura is another deputy to Cipollone. The former federal prosecutor and Justice Department official joined the White House at the same time as Cipollone.

A former associate counsel in the George W. Bush White House, Purpura negotiated with witnesses who testified in the House impeachment inquiry. For example, he met with Fiona Hill, Trump's former top adviser on Russia and Europe, to discuss her plans to comply with a congressional subpoena. Purpura later wrote a letter to Hill and her attorney outlining the White House's expectations of how she would protect executive privilege.

Alan Dershowitz 

A professor emeritus at Harvard Law School who wrote a book called The Case Against Impeaching Trump, last week told NPR's Here and Now that President Trump had considered adding him to the team. "The reports are true, but I can't comment about whether or not I've agreed to join his legal team. But there's been some discussion of that," Dershowitz said.

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SCOTUS has the power to review impeachment trials

Cleveland Attorney James Robenalt wrote in the Washington Post:

If Senate Majority Leader Mitch McConnell follows through on his desire to hold an abbreviated impeachment trial without witnesses — as many in his party would prefer — he will be testing the limits of the impeachment trial clause of the Constitution. Minority Leader Charles E. Schumer has declared that a trial without witnesses (or perhaps even any documents) would amount to “a coverup.” Worries about a rubber-stamp trial are one reason House Speaker Nancy Pelosi has delayed submitting the articles of impeachment.

If such a sham trial comes to pass, is there any remedy? In fact, there is a stronger case than many think that the Supreme Court has the power to review impeachment trials, to ensure that Senate procedures meet a basic level of fairness.

The only Supreme Court decision addressing the Senate impeachment trial clause is Nixon v. United States (1993) — which has nothing to do with Richard Nixon. When Walter L. Nixon, a federal judge in Mississippi, was impeached in 1989 and removed from office, he sued the United States, the secretary of state and the Administrative Office of the U.S. Courts, arguing that the Senate had not conducted a proper “trial” as required by the Constitution.

The court, with Chief Justice William Rehnquist writing for the majority, ruled against him. It concluded that how the Senate conducted impeachment trials was essentially a political question, because the Constitution gives that body the “sole power” to try impeached officials. That meant the dispute was, in the legal jargon, “nonjusticiable.” But other justices — namely Byron White, Harry Blackmun and David Souter — argued that, while Nixon deserved to lose, it was possible that one day the Senate would conduct such an unfair impeachment trial that the courts would be obliged to hear a case if an aggrieved party sought a judicial remedy. That’s precisely the situation we may face today.

In the events that led to his impeachment, Nixon was convicted of crimes (two counts of making false statements to a grand jury, related to an attempt to interfere in the investigation of a friend’s son) and sentenced to prison. But he refused to resign and continued to collect his judicial salary behind bars. The House therefore impeached Nixon and sent articles to the Senate to conduct a trial.

Under rules established by the Senate to handle impeachments, Nixon’s case was referred to a committee of senators to “receive evidence and take testimony.” After four days of hearings and 10 witnesses, the committee presented the full Senate with a transcript of its proceedings and a report. The House managers and Nixon submitted briefs to the full Senate; after oral arguments from the Senate floor, a personal appeal from Nixon and questions from several senators, the full Senate voted to remove him from office. He appealed, claiming that the Senate had not really “tried” him: Delegating so much work to a small committee was a shirking of its duty, he argued, and not what the founders had intended.

The Supreme Court’s vote against Nixon was 9 to 0. But White and Souter filed concurring opinions (Blackmun joined White’s) that contemporary courts might draw on, should the Senate vote, after a trial that’s clearly perfunctory, to keep Trump in office.

As the court noted in Nixon, the Constitution lays out several indispensable elements of an impeachment trial: The Senate “shall be on Oath or Affirmation”; if it’s the president who’s on trial, “the Chief Justice shall preside”; and conviction requires a two-thirds majority of the members present. Beyond this, the terms of how the Senate tries an impeachment are left to its discretion.

But there are surely limits, White, Blackmun and Souter argued. What if the trial were manifestly bogus? The issue had come up in the oral argument for the case. White asked the solicitor general (Kenneth Starr, as it happens) if, after the House sent over articles of impeachment, the Senate could, “without any procedure whatsoever,” unanimously find the accused guilty on the grounds that he was “a bad guy.” The government replied that, yes, the Senate indeed had that latitude.

That answer troubled several justices. While conceding that it was “extremely unlikely that the Senate would abuse its discretion and insist on a procedure that could not be deemed a trial by reasonable judges,” White wrote, the scenario was hardly unimaginable — and would provide grounds for judicial review. “Were the Senate, for example, to adopt the practice of automatically entering a judgment of conviction whenever articles of impeachment were delivered from the House it is quite clear that the Senate will have failed to ‘try’ impeachments,” White wrote

If the Senate were to convict “upon a coin-toss,” Justice Souter added, “or upon a summary determination that an officer of the United States was simply ‘a bad guy,’ judicial interference might well be appropriate.”

“In such circumstances,” he wrote, “the Senate’s action might be so far beyond the scope of its constitutional authority, and the consequent impact on the Republic so great, as to merit a judicial response despite the prudential concerns that would ordinarily counsel silence.”

McConnell has said he does not intend to be impartial — and in fact will work, lockstep, with the White House during the trial. That would violate his oath to “do impartial justice according to the Constitution and laws.” If he dispenses with witnesses and speedily steers the outcome to the one desired by the White House, that would reduce the Senate proceeding to the kind of “summary determination” that the three justices warned about. Collectively, such actions could be seen by reasonable judges as “seriously threatening the integrity of the results” — the standard Souter suggested should trigger judicial review.

Since the Constitution grants the chief justice the privilege of presiding over the trial, he ought to have — and in my view does have, under proper constitutional interpretation — considerable power to steer the Senate toward reasonable standards for weighing evidence and rendering judgments. He cannot and should not be a potted plant. The current Senate rules, however, reduce the chief justice’s role to one of subservience and ceremony; even his rulings on admissibility of evidence can be overridden by the Senate. That cannot possibly be what the founders intended.

Yes, the founders provided that the House would have “sole power” over impeachments and the Senate “sole power” over trials of impeachment. But the Constitution also grants “all legislative powers” to the House and Senate, and still the Supreme Court exercises routine judicial review over laws. If McConnell and his Republican colleagues insist on setting rules that turn the trial into a farce, then the matter would be ripe for judicial review, as outlined by the various justices in Nixon v. United States. The House — through the speaker or the impeachment managers — could take the matter to court.

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