Years ago, I had the privilege of representing a young Lower Merion Township, Pennsylvania police officer who shot and killed another young man who had just robbed a convenience store on Philadelphia’s Main Line. The evidence established that the robber had driven away from the crime scene at a high rate of speed and was chased down and surrounded by Lower Merion police on City Avenue, the border between the township and the City of Philadelphia.
The suspect sat in his car ignoring repeated commands to show his hands. He then suddenly exited his vehicle and charged directly at my client while holding a heavy wooden club over his head with both hands.
As shown on fuzzy police dash cam video, my client had less than two seconds to assess the situation and react. As he later testified, he could not tell if the club was an axe, a lead pipe or a shotgun. He ran backwards away from the club-wielding man. But as the distance between them closed, my client – while still running backwards – fired one shot which hit his attacker in the anterior chest.
The assailant fell to the ground and was motionless. The police disarmed him and had him transported to the hospital where he was pronounced dead on arrival.
My client was white. The decedent was black. Angry demonstrators picketed the suburban police headquarters and claimed that the shooting was a modern day lynching. Racial tensions were high as black leaders demanded that my client be charged with murder.
My client faced possible federal and state criminal charges. Since the shooting had occurred on Philadelphia’s side of City Avenue, the Philadelphia police homicide squad and District Attorney’s Office conducted the local murder investigation. The FBI conducted a parallel civil rights investigation.
After intensive and exhaustive investigations, no criminal charges were brought at either the local or federal level.
Nevertheless, the decedent’s parents filed a federal law suit for money damages based on the theory that my client had violated their son’s civil rights. I tried that case before a jury in U. S. District Court and won a defense verdict in favor of my client.
Now before the case went to trial, based on the overwhelming evidence gathered in discovery which favored my client, I moved for a dismissal of the civil case. The District Court denied the motion, and I appealed to the U.S. Third Circuit of Appeals which granted oral argument.
It was at that argument that I encountered then Circuit Court Judge Samuel Alito who chaired the three judge panel that heard the appeal.
I was aware of Judge Alito’s reputation for being very smart, thorough and well-prepared. But, as I was about to learn, all of that was understatement.
During the oral argument, Alito asked both sides penetrating questions that cut to the heart of the matter and clearly demonstrated his detailed knowledge of the evidence and mastery of the law. As Alito probed and commented from the bench, he emanated an incisive brilliance.
To say that I was impressed would be putting it mildly. He was by far one of the most intelligent people – and certainly the smartest jurist – that I had ever encountered.
But equally impressive was Alito’s humble demeanor and simple courtesy to counsel and everyone else in the courtroom. He was nice which is a trait rarely found among our robed masters.
Because opposing counsel established that there might be a factual dispute that needed to be resolved by a trier of fact, Judge Alito and the panel denied my appeal and allowed the case to proceed to trial. Though I disagreed with the panel’s decision, I could find no fault with Alito’s reasoning or the manner in which he handled the case. I was and remain in awe of his ability, humility and kindly demeanor.
All of this transpired shortly before Alito became an Associate Justice of the U.S. Supreme Court.
Yesterday, when news broke that a copy of his initial draft majority opinion in an abortion case before the Court had been leaked to and published by Politico, I immediately thought back to my oral argument before him.
Based on my knowledge of him, I expected the draft to be well-reasoned, well-written and persuasive. (You can read the draft by clicking on this link.) It is all of that and more. It meticulously and cogently lays out a compelling basis for overturning the 1973 case of Roe v. Wade which created a Constitutional right to abortion and the later case of Planned Parenthood v. Casey which upheld Roe.
Here’s a taste of Alito’s draftsmanship:
“Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences. And far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.
“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives. ‘The permissibility of abortion, and the limitations, upon it, are to be resolved like most important questions in our democracy: by citizens trying to persuade one another and then voting.’ [Citation omitted] That is what the Constitution and the rule of law demand.”
Abortion advocates have gone into full meltdown mode. Frenzied and angry protests are underway outside the Supreme Court and around the country.
Of course, Alito’s draft says nothing about outlawing or prohibiting abortions. It only states that the elected representatives of the people should decide the question. What a novel concept.
I am working on an analysis of the draft opinion for The American Spectator. But, in the meantime, I wanted to share with you my experience with Alito as well as an opinion piece that I wrote for the Philadelphia Inquirer in 2013. The op-ed dealt with the then ongoing trial of Dr. Kermit Gosnell, an abortionist who was later convicted of murdering viable, living infants. In my piece, I discussed the questionable judicial origin of Roe v. Wade and its slippery slope to infanticide.
Here’s the piece.
