2019 British Pegasus Scholar Report
“It’s been lovely meeting you. I am only sorry that I don’t have more time to talk,” said Congressman Brendan Boyle.
We stepped into the crowded corridor of Longworth House Office Building. The door opposite swung open and for a moment we were looking right into the Ways and Means Committee room. A curly-haired middle-aged woman was seated at a table answering a question put to her by a member of the panel opposite. This was Ambassador Yovanovitch. Against the backdrop of the world’s news media, she was giving evidence at the impeachment inquiry into President Trump’s conduct in Ukraine. The door swung shut. “Wow,” we said.
To visit the United States amid the historic events in the autumn of 2019 would be memorable enough. To have the opportunity to do so as a Pegasus Scholar was monumentally the more so. What did we learn? What didn’t we learn! Through a packed programme of meetings and events over six weeks of travel across five states plus the District of Columbia, we were exposed to a full cross-section of the US legal system at both federal and state level. We also gained in-depth understanding both of contemporary politics and American history. I return to London inspired by what I have seen, and with a well-stocked mind full of stories.
It is not easy to generalize about the similarities and differences between the US and the British legal systems, because the US is studded with 50 different legal systems, plus a federal system sitting atop them. But I was able to ascertain that there are important points of contrast.
It is hard to overstate the ramifications of having a codified constitution. Since the seminal decision of Marbury v. Madison (1803), US Judges have had the power to strike down not only government acts, but also primary legislation incompatible with constitutional rights. This cuts across a host of legal issues, be it the right to silence (no adverse inferences may be drawn from a defendant choosing not to testify); the right to free speech (a libel claim requires actual or constructive malice on the part of the defendant); the right to jury trial (maintained even in civil courts) and the right to bear arms (protected for individual citizens and binding on the states).
With so much at stake, it may be no accident that law and politics have a particularly close relationship in the US. Through detailed and candid discussions with a number of fascinating (and very kind) members of the judiciary, including Judge Callahan (federal Ninth Circuit of Appeals), Judges Phillips and Eid (federal Tenth Circuit of Appeals), Chief Judge Stuckey and former Chief Judge Effron (US Court of Appeals for the Armed Services), Judges Brinkema, Dillon and England (federal District Courts for Eastern Virginia, Western Virginia and Eastern California), Magistrate Judges Ballou and Rankin (federal District Courts for Western Virginia and Wyoming) and Chief Justices Cantil-Sakauye and Lemons and Justice Fox of the California, Virginia and Wyoming Supreme Courts respectively, we were able to gain much deeper insight into the differing judicial philosophies that can so easily blend into the wider political debate.
The courthouse and Chambers where we had these discussions were another point of contrast – we were left envious at their lavishness and beauty. My favourite of all was the Library Courtroom at the federal Tenth Circuit Appeals Court in Denver, with its intimate, ‘university library’ atmosphere.
These discussions greatly enhanced our ability to grapple with the constellation of the fascinating court hearings we observed. We attended the US Supreme Court twice, watching oral argument in Ramos v. Louisiana, regarding whether the constitutional right to a jury trial in a criminal case is incorporated on the states, and if so, whether it includes a right to a unanimous jury verdict, and Comcast v. National Association of African American-owned Media, concerning the relevant legal test under which a claim for racial discrimination may be dismissed at summary stage. We also attended the Circuit Court of Appeals for the District of Columbia, where we watched part of New York v. Department of Labor, an appeal concerning the Trump administration’s narrow interpretation of part of the Affordable Care Act (passed under President Obama), and a morning of appeals before the Virginia Supreme Court, including an action against the police for wrongful arrest and search, an appeal against a rape conviction and a claim that a sentence of over 90 years’ imprisonment imposed on a minor was unlawful.
These appeal hearings exposed another point of contrast – in the US, the briefs (what we in the UK would understand as ‘written submissions’) are lengthier and more detailed and consequently far less time is allocated to oral argument. The Judges, assisted by their formidable teams of clerks (to us, ‘judicial assistants’), usually come to the hearing with a worked-out view and the attorneys often sail straight into a ‘hailstorm’ of questions and rebuttals from the bench. At the beautiful black-tie Celebration of Excellence at the US Supreme Court, which we were privileged to attend, it was fascinating to discuss this difference with Lady Black (of the UK Supreme Court) and her husband, Lord Justice McCombe (of the UK Court of Appeal), both of whom were so engaging and friendly.
The historic events unfolding in Washington provided a backdrop for many exciting encounters. The impeachment inquiry and the build-up to the Democratic Party’s primary elections, together with the ongoing impasse over Brexit back in the UK, provided food for thought at our fascinating conversations with Congressmen Brendan Boyle (Democrat, Second District of Pennsylvania) and Ron Kind (Democrat, Third District of Wisconsin), the US Solicitor General Noel Francisco, and Bill Murat, Chief of Staff to Senator Tammy Baldwin (junior Democratic Senator, Wisconsin), who took us out to lunch at the exclusive Senate Dining Room, where he talked openly about the challenges facing liberal politics in the present climate and gave us insight into the skill and emotional intelligence which has enabled Speaker Nancy Pelosi to establish herself as a pre-eminent figure in the Party.
Amid all this, we had the exciting opportunity to observe two politically sensitive court hearings. In DC, we watched Judge Amy Berman Jackson direct a federal jury on the law in the trial of Roger Stone, a former Republican strategist accused of obstruction, false statements and witness tampering arising from his testimony to the House of Representatives’ Intelligence Committee about back-channel efforts to push for the release of emails from Wikileaks which would harm Hillary Clinton’s presidential campaign. He was duly convicted. In northern Virginia we attended a hearing in the libel claim brought in federal court by Svetlana Lokhova, a Russian academic who alleged that it had been wrongfully implied in newspaper articles that she had compromised General Michael Flynn, the former National Security Advisor who resigned in February 2017.
As well as discovering contrasts between the US and the UK, we were also exposed to the huge contrasts within the United States. Touching down at the airport in balmy Sacramento, California, the capital of a predominantly liberal and environmentally-minded state that is home to approximately 40 million people with an economy larger than that of the entire United Kingdom, feels very different to driving through a light dusting of snow into Cheyenne, the capital and largest city in Wyoming, home to 60,000 people in a state of less than 600,000 with a solidly Republican government and an economy buttressed by minerals and fossil fuels. But the people in these states are not always stereotypical and we were not infrequently surprised at the opinions that we heard.
As for the hospitality, we received overwhelming kindness and generosity.
The star-studded programme in California, put together with immense care and planning by Art Scotland, former Presiding Judge of the California Court of Appeal, meant that we were able to acquire a detailed understanding of the legal system almost at the outset of the programme, through meetings not only with a number of senior Judges (including the inspiring Judge Awoniyi), but also federal and state prosecutors and defenders, private criminal and civil attorneys and senior members of staff at the Governor’s office and the state legislature (which put our name in lights to welcome us in each chamber!)
One of the most moving parts of our entire programme was the visit to the Re-entry Court of Sacramento, convened by the ebullient and humane Judge Larry Brown. The aim of this court is to get repeat non-violent drugs offenders onto the path of rehabilitation. After a private multi-disciplinary meeting to decide how to manage each person, the court session began. Judge Brown created an informal, warm and friendly atmosphere unlike any I had previously experienced in court, congratulating the individuals where they were doing well, asking them lots of questions and showing genuine sympathy to them. Above all, I was struck above all by how hard he tried to make them feel they have a genuine second chance. One person told Judge Brown that he had abandoned the slogan ‘all good in the ‘hood’, because he wanted to move on from his past – now, his slogan was ‘I am superb in the ‘burb!’
Parker White, a renowned medical malpractice attorney and our host in Sacramento, made us feel so welcome in his home. He also took us for a weekend to his beautiful holiday home in Lake Tahoe, which included two trips out on his boat, Brick House, where I went swimming in the ice-cold, clear water. In an amazing act of generosity, he also bought tickets for us to attend a World Series game in DC – the first WS game in the capital since 1933, a spectacular event on the road to the Washington Nationals’ first title in their history. We were delighted to be part of the celebrations in DC.
In Roanoke, Virginia, family law attorney Devon Slovensky and retired state Judge Diane Strickland (who had established a court in Roanoke very similar to Judge Brown’s Re-entry Court), with help from attorneys Chris Dadak and Charles (Trey) Smith and Judge Broadhurst of the state court, organized a fascinating programme of meetings and court hearings. We also visited Thomas Jefferson’s beautiful estate of Monticello, fringed with extraordinary copper, yellow and red trees on a glorious autumn day, where a tour of the home evidenced the extraordinary mind of its possessor. Almost every inch of the place was designed to spark interesting conversation with his guests. The walls of the entrance hall were garlanded with fascinating objects and maps from all parts of the world together with a large clock of his own design, the library was crammed with the latest volumes of science and philosophy and in the parlour were exhibited portraits of ‘the Worthies’ (those particularly worthy of discussion). Perhaps we saw a glimpse of where this statesman and thinker drew the strength of his ideas from. To its credit, the tour also did not shy away from the more troubling aspect of the estate’s past – the dependence of the plantation on slave labour. During our time in Virginia, we also had the chance to visit the historic state capitol and the beautiful campus of the University of Virginia, both of which were designed by this multi-talented Founding Father.
In Wyoming, the appellate attorney Tyler Garrett (assisted by Ben Rose) arranged for us to meet each Justice at the Wyoming Supreme Court as well as a number of federal Judges there, and also took us on a beautiful hike on his prairie land adjoining Curt Gowdy State Park. The landscape was not like anywhere I have ever visited before – with its yellow grass (due to the dry climate), large boulders, pine trees and snow-encrusted valley leading to a mountain stream it had an almost prehistoric feel. Against a beautiful sunset of an electric blue sky tinged with oranges and purples, we saw white-tailed deer which hopped, skipped and jumped away once they noticed us.
We also attended an immensely interesting and unique dinner at Francis E. Warren Air Force Base, one of the control centres for the land-based Intercontinental Ballistic Missile deterrent. I was one of the lucky two from the group able to sit at the exact mock-up of the launch console used for training and carry out the procedure for launching an ICBM. It was an extraordinary experience – despite knowing it was not real, it was nevertheless rather scary to appreciate the awesome destructive power at my fingertips.
The lovely Richard Schimel was our host for a wonderful visit to Annapolis, the capital of Maryland. We attended hearings at many levels of state court, including the Court of Special Appeals, and then had an audience with Judge Douglas Nazarian and his very friendly judicial colleagues, where the Judge told us that whilst oral argument rarely leads to a change in his overall opinion, it is nevertheless not uncommon for it to alter the analytical path of his reasoning, indicating that it retains an important role in the justice system. After this meeting, we had the chance to go into the historic library, where we were able to see the document signed by Secretary of State Jefferson which created the State of Kentucky and the signing-in book from November 1934 where a young Thurgood Marshall of Baltimore had signed his name. 33 years later, he was appointed to the US Supreme Court as the first African American Justice and the library now bears his name.
For lunch, Richard took us on a beautiful drive to Kent Island over the huge Chesapeake Bay Bridge and the sky over the sea was lit up pale blue in the icy-cold weather. That evening, we went for dinner at the Montgomery County Inn of Court, where there was a chance to meet the Chief Justice of Maryland, Mary Ellen Barbera, as well as her husband, Circuit Judge Gary Bair, who could not have been warmer.
Our dinner at that Inn, together with delightful evenings at the Anthony M. Kennedy Inn (Sacramento), the Ted Dalton Inn (Roanoke), the Ewing T. Kerr Inn (Cheyenne) and the George Mason Inn (northern Virginia) showed me the value of the localised Inns of Court system in the US and the close-knit legal communities the Inns create.
The day after the scholarship programme ended, Richard also took me on his glorious ‘car tour’ of Washington, DC, a whistle stop ride through many of the city’s most important and beautiful sites. Armed with an array of niche historical knowledge, Richard was a wonderful guide.
And of course, there was the Herculean work of our host in Washington, DC, attorney Jesse Binnall, aided and abetted by his junior colleagues, Lindsay McKasson and Britta Venneman, and by Ellen DelSole, tax lawyer at the Department of Justice.
They ensured that DC opened its doors to us. Among many of the fascinating meetings and court hearings discussed above, Jesse and his team were very attentive in ensuring that the meetings were tailored to our specific interests – enabling me to attend the Immigration Court and meet a number of immigration lawyers, where I learned about the contrasts between our asylum systems. In the US an asylum seeker must show that they fall within one of the categories of protection under the Refugee Convention and – unlike in the UK – humanitarian protection outside the Convention is not ordinarily available. This has generated a great deal of case law on the meaning of a ‘social group’. It was suggested to me, however, that the UN Convention against Torture was being cited more commonly than ever before as an alternative basis on which to claim asylum. This promises to be an interesting legal development.
We also enjoyed a fascinating visit to George Washington’s estate at Mount Vernon, a fascinating meeting with Matt Barakat of the Associated Press, a lovely reception at General Malinda Dunn’s home in Virginia, and a spectacular tour of the West Wing of the White House. There we gazed at the beautiful Oval Office, with the Resolute Desk standing before golden-yellow curtains from the Clinton Presidency and a red and cream rug from the Reagan era. Portraits of Lincoln, Jackson and Franklin look down at the business that is conducted there.
In another amazing act of generosity, Jesse took us flying. Our little Cessna 172 SP (call sign November 146 Tango Charlie) took off from Potomac Airfield with Jesse at the controls and flew through Maryland and over the Chesapeake Bay for about 45 minutes, until we reached the isolated island of Tangier. We landed on the little runway and made our way into the village. The inhabitants of this historic community of approximately 700 people speak in an accent considered to be very close to how Elizabethan English may have sounded – to my ears it was a mix of the Southern American drawl but with some vowels flattened, like a Sunderland/Newcastle accent in the UK. Walking about the village felt like we had stepped back in time many decades – and it was fun to see that golf carts were the main mode of transportation. On the flight home, we saw the bright orange sunset over the Potomac and caught sight of the Washington Monument in the distance. Flying in a light aircraft with headsets on and the radio blaring out information really is very exciting indeed.
I would also like to mention Cindy Dennis, the Awards & Scholarships Coordinator at the American Inns of Court, who went to such trouble to ensure that each aspect of the programme would be as memorable as possible.
It is impossible to put into words how grateful I am to the American and British Inns of Court that I was able to undertake this scholarship programme. It has been described as a ‘once in a lifetime experience’. But even this does not do it justice. As well as learning and experiencing so much, the warmth and kindness of all who hosted us was striking – I can say that this programme has been a true lesson in good hospitality. And so to conclude – if you are reading this report and to try and decide whether to apply for the programme, there is only one answer: apply! You will be forever grateful.