Kendall Coffey on Fox News: What happens next after Comey ousting? – May 10th, 2017

Posted on May 17, 2017 in Media Appearance: Elections and Courts with Kendall Coffey

Kendall Coffey, one of the country’s top litigators presently working as a partner at Coffey Burlington in Miami, Florida, appeared on Fox News’ Fox & Friend to discuss the recent firing of FBI Director James Comey. For more from Mr. Coffey, follow him on Twitter. Abby Huntsman: Welcome back. FBI Director James Comey fired, and to no one’s surprise, the left immediately attacking the president. Jeffrey Toobin: This is the kind of thing that goes on in non-democracies. Chuck Schumer: I told the President, Mr. President, with all due respect, you are making a big mistake. AH: So what happens next? Here to weigh in is Kendall Coffey. He is a former U.S. attorney, under President Bill Clinton. Thank you so much for being with us this morning. Kendall Coffey: Thanks for including me. AH: So you’re an important voice to talk to, as this is all breaking, and there are so many important questions still left to answer.  But the biggest one is, what happens next, and how hard is it going to be to find that perfect replacement for him? KC: Well, they thought Comey was the perfect choice in the first place, so I think there’re going to be that much more careful this time. But the profile that you need at this point is someone with solid law enforcement credentials, obviously bi-partisan support to an extent, and some demonstrated independence. I think that person exists, and the most important thing about all of this, despite the present commotion, is getting somebody who the public respects and who will restore all credibility to the FBI. Martha McCallum: Well as for now, it’s Andrew McCabe, Deputy Director. He’s going to be filling in for a short time. Can you tell us a little more about him? He’s going to be next in line for a couple of days, so to speak. KC: Yeah, he’s a career guy, been there more than 20 years. A little bit of a controversy because his wife had been a Democratic legislative candidate a couple of years ago. But the important thing to remember is that this has never been the James Comey investigation, and it’s not now the Andrew McCabe investigation. This is an investigation by career FBI agents, their supervisors, prosecutors—including, by the way, the U.S. Attorney for the Eastern District of Virginia, who launched some subpoenas recently in the matter, and he was an Obama appointee. So there’s a lot of reason to trust this process going forward, but I think McCabe is going to get some extra looks because of his connection with the Democratic Party. AH: Well, you mentioned Democratic Party, Kendall. A lot of politics always involved with something like this. Democrats, though, they are telling Trump he should not have fired James Comey. But they were the ones calling foul for how [it took] long...

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Defense of Insanity: Overly Successful or Overrated?

Posted on Apr 7, 2017 in Blog Entry: Criminal Cases, Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. Even for defendants who are mentally ill, the legal defense of insanity is rarely successful – especially since the laws changed in the wake of the insanity-based acquittal of John Hinkley Jr., President Reagan’s attempted assassin. Insanity might seem like a really good idea, at least for a defendant caught red-handed in criminal activity. In everyday conversations people are quick to suggest that an otherwise guilty person can get off by claiming insanity or even temporary insanity. Such defendants are crazy, the public speculates, but crazy like a fox. The legal reality is galaxies apart from this popular wisdom. In criminal prosecutions, a plea of not guilty by reason of insanity is presented in 0.85 percent of cases, less than one in a hundred. Such strategies succeed no more than a fourth of the time. So the odds of an accused criminal beating the rap by wrapping himself in a straightjacket are roughly on in four hundred. Ironically, even individuals who are clearly mentally ill are not necessarily considered insane for legal purposes. Unless the affliction it’s an extremely narrow definition of what constitutes insanity for legal purposes, mental disease is no defense. Just consider the number of prison inmates who have serious mental disorders. This poses increasing problems for corrections officials who lack the resources to provide them with proper care. In the past, an insanity defense was more readily available. Things changed in 1981 with the attempted assassination of President Ronal Reagan and the subsequent trial of assailant John Hickley Jr. By any standard, Hinckley was mentally ill. Obsessed with movie star Jodie Foster, he thought killing President Reagan was a great way to get her attention But public uproar greeted his acquittal in 1982 by reason of insanity. Some 83 percent of Americans believed that justice was not done Neither the public nor the jury usually knows that an acquittal by reason of insanity is not much of a victory. Insane defendants, especially violent ones, spend many years in mental hospitals that are the equivalent of prisons. In fact, Hinkley would spend close to twenty-eight years in a mental facility before being allowed limited visits to his mother’s house. Some states do not even permit an insanity defense. The US Supreme Court determined in 2006 that Arizona did not violate the Constitution by preventing a defendant from presenting the defense of legal insanity. In That case, a young man, who believed that aliens were out to get him, killed a police office in Phoenix. No one accused the defendant of faking. His mental illness was undeniable. The Supreme Court found that the state could hold him accountable nonetheless, and it allowed the conviction and life sentence to stand. Texas mother Andrea Yates was likewise impaired when...

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Pop Law: Do Celebrities Get Special Treatment?

Posted on Mar 28, 2017 in Blog Entry: Spinning the Law

This is an excerpt from Spinning the Law by Kendall Coffey. The full book is available for purchase on Amazon here. The public usually assumes that celebrities receive preferential treatment at every turn in criminal cases, as well as in civil proceedings. Their lawyers tell a different story. The one point of agreement is that celebrities, like other people with lots of money, can hire the best legal representation. Additionally, a Martha Stewart can afford public-relations consultants and even public-opinion surveys, while ordinary defendants may be getting advice from only their family members and drinking pals. Except for the issue of financial resources, celebrities are otherwise less favored by the system than one might think. Certainly, when it comes to being investigated, no one receives more scrutiny than a celebrity. Prosecutors and investigators look under every rock and behind every blade of grass. After all, if proceedings are brought, famous people become famous cases, and high-profile trials define the careers of prosecutors and sometimes of police and of criminalists. Additionally, celebrities may have more difficulty getting favorable plea deals. Few prosecutors want to face public outrage and press rancor for supposedly letting a celebrity off the hook. As to prison time for guilty celebs, judges usually try to sentence the rich and famous as if they were neither. When cameras are hovering nearby, judges know they will not be rewarded for leniency. Fraudster Bernie Madoff received a one-hundred-fifty-year prison sentence, five times his likely life expectancy. At the other end of the criminal spectrum, Paris Hilton was sentenced to forty-five days in jail for violating probation by driving without a license. Her sentence was certainly not lenient to begin with, but her modest legal problems were about to become a ratings gangbuster that attracted extensive coverage from cable news. When she was released early due to medical issues, a national uproar ensued. Within hours, the judge ordered her back into court and then on her way back to Los Angeles County jail. Professor and legal analyst Laurie L. Levenson attributed Hilton’s above-par punishment for traffic violations to the reality that “people are fed up with celebrity justice.” Being tough on Paris Hilton may have seemed harsh to her family and her fans, but for most of the public, the judge seemingly stood tall when Paris Hilton went down. Keep up with the latest updates from Kendall Coffey on Twitter,...

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Kendall Coffey on The Lars Larson Show – March 9th, 2017

Posted on Mar 21, 2017 in Media Appearance: Elections and Courts with Kendall Coffey

Kendall Coffey is a founding Partner at Coffey Burlington, PL, former U.S. Attorney, and frequent guest legal analyst on international television networks. He is also an adjunct professor at University of Miami School of Law. Kendall Coffey joined the Lars Larson Show on March 9th, 2017 to discuss the recent lawsuits against President Trump’s Executive Order restricting travel from six Muslim-majority countries. Lars Larson: Mr. Coffey, thanks a lot for joining us again. Tell me what you think of these lawsuits and if they will find any traction in the federal courts. Kendall Coffey: Well, I think it’s going to be so much tougher this time. The basic theme of the lawsuit seems to be, “Well, this is just another version of the original executive order that was found invalid.” If it looks like a duck, walk likes a duck, quacks like a duck, it’s, after all, a duck. As people read this, they’ll see that in legal terms, at least, it’s a bird of a different feather. It’s more thoughtfully drafted. It clearly avoids the major legal pitfalls of the original executive order, which was, you will recall, a statement prohibiting green card holders from the 7 countries. This problem was something that I think most analysts thought would be very difficult to overcome in the original order. This order is not only thoughtful in the way it’s drafted, but it explains some of the concerns of each of the 6 remaining countries that are subject to this. Just to put in context, what the executive order focuses on, it states that there is a need to deal with countries where we don’t trust their informational processes to tell us who is coming to this country from their countries. It’s very specific about that. It says that it requires a process by the major agencies, such as the Department of Homeland Security, to see if these countries can correct their current informational concerns, and at the same time, it calls upon Homeland Security and other agencies to examine the information we’re receiving from all the other countries to make sure that we go through a delivered process and see if there are other countries as well as the 6 that are not giving us reliable information about their citizens when their citizens try to come to this country. I don’t think that, fairly read, this document is subjected to a strong legal challenge, but the challenges continue, and I certainly won’t predict what may happen. Could there be a federal district court that rules for the challengers? Maybe. But I think if this gets to an appeals court, they’re going to have to look at this document and apply the many decisions of the Supreme Court, which says, basically, that the president has the right to do this order in the name of national security. Lars Larson: Shouldn’t...

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The Foreign Sovereign Immunities Act

Posted on Nov 22, 2016 in Blog Entry: Elections and Courts

The Foreign Sovereign Immunities Act (“FSIA”) renders foreign states (as well as the political subdivisions, agencies, and instrumentalities thereof) immune from suit in U.S. federal and state courts in most circumstances. The FSIA embraces the restrictive theory of sovereign immunity, which confines immunity to a foreign country’s public acts and excludes from immunity the private/commercial acts. Congress enacted FSIA to address a “modern world where foreign state enterprises are every day participants in commercial activities.” Samantar v. Yousuf, 560 U.S. 305, 323 (2010).  Section 1605 creates exceptions to immunity in limited circumstances set forth in 28 U.S.C. Section 1605. Some of the more frequently litigated exceptions include when the foreign state has explicitly or implicitly waived immunity, and when the subject of the lawsuit is the foreign state’s commercial activity involving the U.S. In a recent court decision addressing the commercial activity exception, one federal appeals court allowed a U.S. citizen to sue the railway service owned by the Republic of Austria for an accident that occurred in Austria. The court found that because the Austrian railway sold tickets in the U.S., this constituted commercial activity with the U.S. Sachs v. Republic of Austria, 737 F.3d 584 (9th Cir. 2013) (en banc). This decision, which is binding in certain western states such as California, appears to expand the commercial activity exception and thereby reduce the immunity of foreign governments in some situations. Significantly, foreign sovereign immunity does not protect a foreign official sued for acts performed in an official capacity because the definition of “foreign state” does not include a “foreign official.” See Samantar v. Yousuf, 560 U.S. 305 (2010). In that case, the Supreme Court held that “an individual foreign official sued for conduct undertaken in his official capacity is not a ‘foreign state’ entitled to immunity from suit within the meaning of [FSIA].” Id. The Court emphasized that its holding was narrow and that the official may still invoke foreign sovereign immunity under the common law, including the immunity that applies to a foreign head of state. Id. at 325-26. Also important is the fact that to be sued in this country, the foreign official must have connections with the U.S. sufficient to constitute “minimum contacts”. Along with other exceptions, foreign sovereign immunity does not prevent U.S. courts from having jurisdiction over foreign governments for personal injury or death resulting from acts of...

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