Biglaw

Paul, Weiss Touts Anti-Death Penalty Reputation... So Why Is The Firm Helping Oklahoma Kill A Man?

And the sovereignty questions involved aren't much better.

By  
on

(Photo by Chip Somodevilla/Getty Images)

The state of Oklahoma recently filed cert in Oklahoma v. Bosse, asking the Supreme Court to overturn McGirt v. Oklahoma, the Gorsuch opinion recognizing that Oklahoma cannot just fiat away treaty obligations the United States owes to American Indian nations. At the very least, the state wants the Court to say that it doesn’t have to overturn the scores of illegal convictions it racked up in violation of federal treaties over the years.

It was a 5-4 opinion relying on Justice Ginsburg’s vote, so it’s safe to say the opinion is likely to be overturned soon unless you believe the other conservative members of the Supreme Court will adhere to basic principles of stare decisis, which is just silly. It’s a wild case because after years of the conservative legal community leaning on “if the legislature didn’t intend this outcome, it’s up to them to fix it, not us,” the right-wing (sans Gorsuch, of course) responded with “Congress?!? Are you crazy? They can’t do anything, we have to legislate from here!”[1] Could it be that the whole “Congress must act” thing was just a disingenuous tool hauled out to permanently table civil rights? Hmmmmmmmmmm.

In this matter, Shaun Michael Bosse, a death row inmate convicted of murdering his girlfriend and her children is using the McGirt decision to argue that he was improperly convicted in state court. Oklahoma is trying to stop that from happening.

And the state hired Paul, Weiss to make that argument for them.

It’s a curious representation given the firm’s proud history — touted on its own website:

The firm and its lawyers participated in efforts… to resist the death penalty by defending scores condemned to die and obtaining a historic victory in the U.S. Supreme Court forbidding execution of the mentally disabled….

Sponsored

Paul, Weiss has always relished its reputation for supporting liberal causes. No one is confusing the elite Biglaw firm for the National Lawyer’s Guild — it’s still fundamentally the Wall Street firm that began in the late 1800s, but its lawyers have dedicated considerable effort over the decades advancing social justice.[2] This case seems to be a change of direction.

The argument here seems to be that the firm isn’t so much “sticking up for the death penalty” as it’s sticking up for Oklahoma having a functional criminal justice system. It does sound like McGirt precipitated a lot of problems in Oklahoma, but remember it didn’t cause those problems, Oklahoma’s historical “oopsie” of ignoring federal law for decades did.[3]

Repping Oklahoma is Kannon Shanmugam. When he joined the firm, we wondered if it might change the firm’s personality to add a FedSoc lifer who clerked for Justice Scalia. It seems like it might have because one assumes a blood red state government like Oklahoma’s hires its Supreme Court advocates directly off the Federalist Society approved list.

At some firms, you can brush unsavory cases off as a professional commitment to being a true advocate-for-hire. Some lawyers are like stone-cold action movie villains… “it’s not personal, just business.” But that’s just never been the Paul, Weiss character before.

Whether law firms should be held responsible for their representations or not is a complicated judgment call. “Everyone deserves a lawyer” doesn’t mean “everyone deserves you as their lawyer.” Once attorneys choose to take work for pay, it becomes a business decision. A lawyer dedicated to victims of sexual misconduct shouldn’t represent Harvey Weinstein, while an attorney passionate about zealous criminal defense as the bedrock of a functioning legal system can.

Sponsored

It may feel weird to say that branding is what matters, but when it comes to holding lawyers to their representations, whether or not they’re being true to themselves says a lot. Because the business of law is a business and the work a firm does defines it. And for Paul, Weiss, it might be time to stop holding them to their history and start recognizing that the firm contains multitudes now and that for every heroic pro bono matter there’s going to be a death penalty defense in there.

[1] This is an actual passage from the petition: “While the Court believed that compromise or congressional action could limit the disruption from its decision, it is now clear that neither is forthcoming. The tribes do not agree among themselves, much less with the State, on the proper path forward, and Congress is unlikely to adopt any proposal not supported by all of the parties involved.” Basically, “we tried to do it the legal way, but it’s too hard.”
[2] This isn’t meant to downplay past problematic representations. The phrase “Indonesian torture case” isn’t exactly inspiring.
[3] This is almost the opposite of the Nestle matter that got everyone mad at Hogan Lovells. In that case, we all had to begrudgingly admit that federal law doesn’t cover the awful consequence of transnational capitalism contracting out for child slave labor. Here, federal law does cover the situation, but Oklahoma is arguing that the Court shouldn’t let it because the consequences are bad. And as we said when covering the Nestle case, asking the legislature to micromanage everything is naive and unrealistic, but it’s pretty ominous to go all the way to asking the Court “to usurp the role of the legislature out of necessity.”

HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Topics

, ,