To the editor:

The first president of the United States I can remember was Franklin D. Roosevelt. The day he died — when we heard the news on the radio — I remember my grandmother sinking into a chair, saying “What will become of us now?” (Yes, there was a time when there was no television; also World War II was raging across most of the world at the time and she had a son and nephews in the armed forces.)

I cast my first vote for president for Harry Truman (Democrat), then Dwight D. Eisenhower (Republican), the general credited with much of the success of the invasion freeing Europe from Nazi rule in World War II.

I cast my next presidential vote for a Democrat, John F. Kennedy.

Since that year, in the political life of the United States, I have seen the assassination of a president (Kennedy) and the attempted assassination of a president (Republican Ronald Reagan).

There was the resignation of a sitting vice president for committing a crime before he became vice president (Republican Spiro Agnew); the resignation of a sitting president because his actions while in office were going to bring an impeachment proceeding in Congress (Republican Richard Nixon) and the seating of a vice president, later seated as president, who was never elected to either office by the voters (Republican Gerald Ford — in my opinion, a fine person).

Then there was the election of a man to the presidency, and a few years later, his son was also elected (Republicans George H.W. Bush and George W. Bush). There intervened the impeachment trial in Congress of a president (not removed from office, Democrat William “Bill” Clinton).

There occurred the candidacy of a woman to seek the nomination for president of a major political party in a presidential election (Republican Elizabeth Dole, who pulled out of the race in October 1999. She was wife of Bob Dole who ran, not winning, for both vice president and president as a Republican)

Then there was the historic election of the first African-American (Democrat Barack Obama). Now in 2016, we have the candidacy of Donald Trump (Republican) and Hillary Clinton (Democrat).

To live through what I have seen in the world since I started voting — and to be confronted with Donald Trump and Hillary Clinton as the only choices is the ultimate insult!





Lynchburg-area businesses prepare for new overtime rules

Posted: Monday, August 15, 2016 2:00 am

Starting Dec. 1, some employees might become newly eligible for overtime pay.

The current rules require overtime pay for employees who make less than $23,660 ($455 per week) per year. For those in that income bracket who work full time, they earn time-and-a-half for all the work they do once they work more than 40 hours. The new regulation more than doubles the benchmark for mandated overtime to $47,476 ($913 per week).

Under the Fair Labor Standards Act, employees are exempt from overtime if they are both a salaried employee and work in an executive, administrative, professional, IT or in an outside sales capacity. By raising the salary requirement for overtime, the regulation is expected to affect more than 4 million workers in the first year of implementation, according to the US Department of Labor.

Department of Labor statistics show 2.3 million ­— more than half — of the employees gaining overtime privileges are women, a group who traditionally earn lower wages than their male counterparts.

Roanoke Labor and unemployment lawyer Paul Klockenbrink said the regulation will affect certain sectors more heavily than others, with mid- and lower-level management employees taking the brunt of the changes.

“Certain industries will be hit harder than others, mostly colleges, retail and nonprofits,” Klockenbrink said. “They’re obviously going to have to start getting their management educated on the rule and start tracking hours.”

Abe Loper, owner of The White Hart Cafe in downtown Lynchburg, has three salaried managers that will be affected by the new rule. In order to comply with the new federal rules, he is choosing to move his employees to hourly pay.

“Unfortunately, this means that these staff members will earn less money during our slower weeks than they would have during the same week had they remained salaried workers,” he said. “The end result is that they will probably not have to work as many hours as they used to, but they will also very likely not make as much money as they used to.”

Companies will have several options in order to comply. They can raise their employees’ salaries above the threshold, keep their hours below 40 or track their hours and pay them the extra salary. According to Klockenbrink, companies will need to be diligent about making sure employees are aware of the changes and push for increased productivity.

“They’re going to need to revise their policies that make it clear if an employee is working beyond 40 that they are reporting those hours, because you’ve got to pay them no matter what,” he said. “With these people that are now non-exempt, you’re going to have to hold their feet to the fire and make sure they are efficient with their time.”

The new regulations set the salary threshold equal to the 40th percentile of weekly earnings for full-time salaried workers in the Southeast. This region has the lowest wage increases in the country, according to the Department of Labor. The use of this region as the benchmark is troubling to the U.S. Chamber of Commerce.

“The Southeast includes the lowest wage increase; however, it includes [Washington] D.C. and Maryland, which is like a different state, and it has some of the highest wages in the country,” Clark Thomasan, U.S. Chamber of Commerce manager of congressional and public affairs for the Southeast region, said at a recent breakfast event held by the Lynchburg Regional Business Alliance to inform employers of the new rules.

“Including those increases the entire wage level quite a bit.”

On the other hand, Economic Policy Institute Vice President Ross Eisenbrey believes the rule will boost the economy and help workers.

“Businesses have gotten used to the idea that they can work people 50 to 60 hours a week without paying them,” Eisenbrey said. “You can see how a business would make money doing that, but it’s just wrong. I think it’s immoral to work people that hard without compensating them for it.”

Built into the new rule is an automatic evaluation of the salary threshold every three years. For local Society for Human Resource Management President Connue Burnette, this is an area of concern.

“Who knows what it is going to look like every three years? Where is the cap going to be? Where is it going to stop?” she asked. “This creates a lot of uncertainty for companies.”

According to Thomasan, the US Chamber of Commerce agreed it was time to raise the salary threshold, but the chosen number is much too high and will cause employers to have to make tough decisions.

“From a business perspective, the burden is very high,” she said. “Businesses are set to face 3 billion dollars in compliance costs and over 2 and half million hours of paperwork. Employers are going to have tough choices on behalf of their employees and many cases the workers will suffer the most from this change.”



Jury Trials Vanish, and Justice Is Served Behind Closed Doors
AUG. 7, 2016

The federal courthouse in Lower Manhattan, part of the Southern District of New York, where the vanishing of criminal jury trials has never seemed so pronounced.

The criminal trial ended more than two and a half years ago, but Judge Jesse M. Furman can still vividly recall the case. It stands out, not because of the defendant or the subject matter, but because of its rarity: In his four-plus years on the bench in Federal District Court in Manhattan, it was his only criminal jury trial.

He is far from alone.

Judge J. Paul Oetken, in half a decade on that bench, has had four criminal trials, including one that was repeated after a jury deadlocked. For Judge Lewis A. Kaplan, who has handled some of the nation’s most important terrorism cases, it has been 18 months since his last criminal jury trial.

“It’s a loss,” Judge Kaplan said, “because when one thinks of the American system of justice, one thinks of justice being administered by juries of our peers. And to the extent that there’s a decline in criminal jury trials, that is happening less frequently.”

The national decline in trials, both criminal and civil, has been noted in law journal articles, bar association studies and judicial opinions. But recently, in the two federal courthouses in Manhattan and a third in White Plains (known collectively as the Southern District of New York), the vanishing of criminal jury trials has never seemed so pronounced.

The Southern District held only 50 criminal jury trials last year, the lowest since 2004, according to data provided by the court. The pace remains slow this year.

In 2005, records show, there were more than double the number of trials: 106. And decades ago, legal experts said, the numbers were much higher.

“It’s hugely disappointing,” said Judge Jed S. Rakoff, a 20-year veteran of the Manhattan federal bench. “A trial is the one place where the system really gets tested. Everything else is done behind closed doors.”

Legal experts attribute the decline primarily to the advent of the congressional sentencing guidelines and the increased use of mandatory minimum sentences, which transferred power to prosecutors, and discouraged defendants from going to trial, where, if convicted, they might face harsher sentences.

Julia Gatto speaking outside court in Manhattan in 2013. She said a client, Oumar Issa, who was arrested on terrorism charges in 2009, accepted a deal to plead guilty. “It was the only thing he could do,” she said. Credit Brendan Mcdermid/Reuters
“This is what jury trials were supposed to be a check against — the potential abuse of the use of prosecutorial power,” said Frederick P. Hafetz, a defense lawyer and a former chief of the criminal division of the United States attorney’s office in Manhattan, who is researching the issue of declining trials.

Julia L. Gatto, a federal public defender, recalled the case of Oumar Issa, a Malian arrested in Africa in a 2009 sting operation on charges of narco-terrorism conspiracy, which carried a mandatory minimum 20-year sentence, and conspiring to support a terrorist organization, which had no minimum.

Although Ms. Gatto and her client believed that elements of the case were weak and that there were strongly mitigating circumstances, Mr. Issa concluded that the risk of going to trial was too high. He pleaded guilty in 2012 to material support, with prosecutors dropping the other charge. He received 57 months in prison. “It was the only thing he could do,” Ms. Gatto said. “His hands were tied.”

In 1997, according to federal courts data nationwide, 3,200 of 63,000 federal defendants were convicted in jury trials; in 2015, there were only 1,650 jury convictions, out of 81,000 defendants.

Former Judge John Gleeson, who in March stepped down from the federal bench in Brooklyn to enter private practice, noted in a 2013 court opinion that 81 percent of federal convictions in 1980 were the product of guilty pleas; in one recent year, the figure was 97 percent.

Judge Gleeson wrote that because most pleas are negotiated before a prosecutor prepares a case for trial, the “thin presentation” of evidence needed for indictment “is hardly ever subjected to closer scrutiny by prosecutors, defense counsel, judges or juries.”

“The entire system loses an edge,” he added, “and I have no doubt that the quality of justice in our courthouses has suffered as a result.”

While the decline in jury trials in federal court has been felt by judges, lawyers and defendants, it has also disrupted the rhythm of the courthouse ecosystem and those who depend on it.

Former Judge John Gleeson, who recently left the federal bench in Brooklyn, cited in a 2013 opinion the sharp increase in the percentage of federal convictions that stemmed from guilty pleas. Credit Todd Heisler/The New York Times
Young lawyers typically become clerks for Southern District judges to gain valuable trial experience; now, some clerks depart without having worked a single trial.

Even the court’s stenographers, whose incomes depend partially on the number of transcript pages they produce, feel the impact.

“It’s been awful,” said Rebecca Forman, who said she transcribed her last criminal jury trial in November 2015. “I didn’t send my kids to camp this summer. I didn’t have the money.”

New York State Court data also shows a striking decline in felony jury trials. In 1984, there were over 4,000 jury verdicts; in 2015, there were fewer than half of that.

Preet Bharara, the United States attorney in Manhattan, speaking to a lawyers group in 2012, cited another effect of the decline: fewer Americans serving on juries. “When trials vanish, citizenship also suffers,” Mr. Bharara said, according to his prepared remarks.

Beyond the statistics, though, the decline in trials in the Southern District has become a frequent topic of discussion, even among judges themselves.

“We’d love to have more trials; most of us enjoy trials,” said Judge Alvin K. Hellerstein, who joined the bench in 1998.

In April, when Judge Shira A. Scheindlin resigned from the bench after more than two decades, she said the decrease in trials was one consideration for her departure. “Trials are way, way down,” she said. “The building’s quite dead.”

Faisal Shazad, who planted a bomb in Times Square, depicted in a courtroom sketch in 2010. He is among recent defendants in the Southern District who have pleaded guilty instead of going to trial. Credit Elizabeth Williams/Associated Press
Judge P. Kevin Castel, who helped to organize the court’s 225th anniversary celebration in 2014, recalled taking a friend, Mary Noe, a legal studies professor at St. John’s University, to see an exhibit of courtroom illustrations documenting Southern District trial scenes of past decades. But as they reached the end, Professor Noe observed that the sketches of more recent defendants, like Bernard L. Madoff and the would-be Times Square bomber Faisal Shahzad showed them pleading guilty.

“I was like, what happened to the trials?” she recalled.

Judge Analisa Torres said she had felt the difference ever since joining the federal bench in 2013. Judge Torres, a former state court judge who handled about two dozen criminal trials a year in Manhattan and the Bronx, said she has since had just a few such trials. “It’s day and night,” she said.

On the state bench, she said, she spent her entire day in the courtroom but for the lunch hour. “Now, I am in chambers all day long.”

The hallowed jury trial is a right enshrined in the Constitution and immortalized in American culture. But these days, said Daniel C. Richman, a professor at Columbia Law School, “‘12 Angry Men’ is more a cultural concept than a regular happening.”

To be sure, federal judges are not exactly sitting on their hands. They maintain dockets filled with civil and criminal cases that wend their way through the process — even if most are resolved without a trial.

As for Judge Furman, he is still waiting for his second criminal jury trial since becoming a judge in 2012. He almost had one earlier this year, but a scheduling conflict with a civil trial meant he had to pass it to another judge.

Another criminal trial loomed this summer. Then it, too, disappeared from the calendar, as the defendant pleaded guilty.

It meant he would have more time to get other work done in chambers, Judge Furman recalled, and there was plenty of that to do.

“But there’s a tinge,” he added wistfully, “of what might have been, that we thought we had one, but it got away.”

A version of this article appears in print on August 8, 2016, on page A1 of the New York edition with the headline: Jury Trials Vanish, and Justice Is Served Behind Closed Doors. Order Reprints| Today’s Paper|Subscribe