It is an ancient principle of trials that jurors can only consider what evidence they hear or see in court. That is why every trial these days includes a warning against looking things up on the internet. And, that is why most judges and lawyers know they cannot comment on actual cases prior to the jury verdict.

But, what about a committed criminal defense lawyer whose faith is a large part of his practice? Can such a lawyer post on Facebook that his clients are the discarded, overlooked persons Jesus ministered to? Can he post on Facebook that he sees God as directing him in his fight for justice? One judge in Ellis County, near Dallas, has said no, Mark Griffith cannot make such posts, since jurors might see those posts. See San Antonio Express News report.

Mr. Griffith explains that these are the sort of prayers he often makes before and during a trial. To inhibit him will restrain his First Amendment rights of free speech. He did eventually agree to refrain from posting real-time posts on Facebook. One would hope so. A juror should not be able to access our private thoughts or expressions of good will. That could lead to a crazy race by both sides to express their “pure” inner thoughts.

So, now, Fox News itself has been sued for sexual harassment. Former Fox News host Andrea Tantaros has sued her former employer, saying Roger Ailes and Bill O’Reilly harassed her. She describes Fox News as a sex-fueled, Playboy mansion like place to work. In her suit, Ms. Tantaros claims she was in Mr. Ailes’ office. He asked her to turn around so he could get a good look at her. She refused. She was then promptly removed from the 5:00 p.m. news slot.

She says she spoke about her concerns with Bill Shine, the co-president of Fox News. He told her to let it go. See CNN News report.

Gretchen Carlson and some 20 other women named Roger Ailes as a serial harasser. Now, Andrea Tantaros. That is a lot of witnesses to the same alleged conduct.

The Fifth Circuit is a risky place to do business. Sometimes, it just reaches some strange conclusions. The case of Allen v. Radio One of Texas II, LLC, No. 11-20781, 2013 WL 703832 (5th Cir. 2/26/2013) illustrates the lack of predictability at the Fifth Circuit. In that case, Corina Allen worked at a radio station as general sales manager.  After complaints about her from subordinates and co-workers, she was warned and then fired. Three weeks after her termination, she sent a letter threatening the station with a lawsuit and suggesting they settle. The Fifth Circuit seemed to be troubled by this letter. The letter did not mention sex discrimination. The opinion does not say who wrote the letter. But, I would expect her lawyer sent the letter.

A few months later, Ms. Allen filed an EEOC charge alleging sex discrimination. Ms. Allen briefly worked for CBS radio, a competitor to Radio One. About the time of her EEOC charge, she called Radio One seeking business. Ms. Allen had left CBS Radio and was now working for herself. The plaintiff sold radio advertising. Ms. Allen was seeking to do business with her former employer. But, Radio One said they could not do business with her because of her EEOC charge.

It is curious that the appellate decision mentions her brief employment with CBS Radio. She was terminated from that position before her call to Radio One. There is no apparent reason why that brief employment would be relevant. So, it is curious that the higher court mentioned it.

The court’s description that she called Radio One “about” the time of she filed her EEOC charge is also confusing. She must have filed her charge before she called Radio One. Since, Radio One referred to her charge as the reason for not doing business with her. She recorded that phone call. One would think that is pretty clear evidence of retaliatory motive. Radio One refused to do business with her because she had opposed their discriminatory conduct. Or, at least, a jury could see it that way

And, that is how the jury did see it. The issue of whether that refusal to do business with her amounted to retaliation went to the jury. The jury found that refusal did indeed constitute reprisal for filing her EEOC charge. The jury awarded $6,100 in lost income, $10,000 for emotional pain and suffering, and $750,000 in punitive damages. The district court would reform the punitive damages down to the cap of $300,000. But, it still remains a large verdict.

But, as in all trials, the defendant moved for judgment as a matter of law (JMOL) at the close of the plaintiff’s case. The district court denied the motion, saying there was sufficient evidence upon which a jury could find for the plaintiff. As the Fifth Circuit noted, the judgment as a matter of law is a device by which federal courts ensure no jury will reach crazy verdicts. A judge can stop the trial in its tracks by finding, after the plaintiff has presented all her evidence, that not enough evidence has been presented. Or, the defendant can re-new its JMOL motion at the close of the entire trial. At that point again, the judge can take the decision away from the jury. It can rule that the plaintiff does not have sufficient evidence upon which a reasonable jury can find in her favor.

The trial judge in the Allen case denied the motion at the time. But, the defendant appealed the denial of a JMOL. And, that is what the Fifth Circuit looked at.

The higher court said no, the plaintiff had not presented adequate evidence. The higher court simply found that the refusal to do business with Ms. Allen came too long after her termination. It was 18 months after her termination and a year after she filed her EEOC charge. It was not reasonable, said the court, that an employee would contemplate just before filing her EEOC charge that she might not be able to do business in the future because of her complaint. See the court’s decision here.

The court offered no actual analysis other than its own opinion that this fear would not occur to the average employee. The experience of the panel is apparently far different than mine. Because, I can attest that most plaintiffs contemplate just about every possible contingency before they take even the smallest legal action against her employer. Most, perhaps all employees, fret about such a thing until the cows come home.

So, the higher court found there was insufficient evidence for the verdict. That means Ms. Allen gets nothing. She loses her trial. All because one panel of three judges substituted their experience for that of the jury.

Coach Art Briles settled his wrongful termination lawsuit against Baylor University. I previously wrote about that lawsuit here. I wrote then that it was pretty “nervy” of Coach Briles to sue his employer for wrongful termination after his inaction caused so much heartburn for his employer. He apparently settled the lawsuit soon after he filed it. See Houston Chronicle report.

The Fifth Circuit issued an interesting decision reversing summary judgment. In Heinsohn v. Carabin and Shaw, No. 15-50300, 2016 WL 4011160 (5th Cir. 7/26/2017), the higher court found the employer did not have policies in place to support its claim that it fired a Legal Assistant for missing an appeal deadline and for allegedly trying to cover up the missed deadlines. In Heinsohn, the lower court granted summary judgment, finding that the plaintiff failed to show genuine issue of material fact regarding the reasons for her firing.

According to the Fifth Circuit, the law firm failed in showing it had a practice of requiring a Legal Assistant to take any particular action in response to a missed deadline. The plaintiff claimed she did not miss any deadline. But, noted the court, even if she did,  the law firm did not present evidence indicating it had a policy requiring the plaintiff to report a missed deadline. For example, the senior partner testified he would “expect” any employee to report a missed deadline or come to the attorney and ask for guidance. The court asked what does “expect” mean? Does that mean “assume,” or does it mean “require”? Heinsohn, at p. 24 (slip opinion). There was no written policy and the senior partner’s explanation was ambiguous.

The challenge for the employer was that the actual supervising attorney testified he did not really have a problem with the Legal Assistant supposedly missing a deadline. He seemed satisfied that the two missed deadlines were not her fault. As many lawyers have advised employers, employers need to have written policies in place. Without clear policies, the employee will be able to show genuine issue of material fact regarding performance issues.

The higher court also addressed the allegation that Mrs. Heinsohn was fired for being out on pregnancy leave. The plaintiff testified via an affidavit that the law firm wanted a guaranteed, specific date by which she would return to work. She said that was the employer’s true concern, that she could not specify a date when she would return from pregnancy leave. The lower court struck that portion of the plaintiff’s testimony saying it contradicted her email exchange with the law firm. But, the Fifth Circuit disagreed, noting that Fed.R.Ev. Rule 1002 does not require a witness to provide the best evidence in her power. Heinsohn at p. 10. That is, her testimony in an affidavit was sufficient to create a factual issue, even if one interpretation of her email would indicate something to the contrary. As the court noted, when the magistrate judge discounted one source of testimony in favor of another, it was assessing credibility.

The court also relied on Tolan v. Cotton, 134 S.Ct. 1861 (2014) and Burton v. Freescale Semiconductor, Inc., 798 F.3d 222 (5th Cir. 2015), in finding that that Mrs. Heinsohn’s testimony should not be disregarded simply because it is “self-serving.” If all such testimony was so discounted, then the testimony of the employer and its employees should be similarly disregarded. Heinsohn, at p. 29. See opinion here.

It is unfortunate that some lower courts still appear to not understand the ruling in Tolan v. Cotton.

That is the thing about Gold Star families. They are vulnerable in ways the rest of us are not. I heard a researcher say a couple of months ago that he believed we experience high rates of PTSD because our society here at home does not understand what we have gone through. He mentioned that in Israel, soldiers experience almost no PTSD when they return home. This researcher explained that is because most of Israeli society participates in their war effort. Every male is required to serve in the military for some period of time. Every family has someone who has served. Whereas, here in America, military service is quite uncommon. So, when we come home, yes, there is sympathy, but not actual understanding. If that is true for service members with PTSD, it is even more true for our Gold Star families.

In this piece in theSan Antonio Express News, one mother mentioned knowing the Khan family. She found Donald Trump’s remarks offensive. One Gold Star father defended Mr. Trump. But, I bet even he finds this spotlight on one Gold Star family brings back all those memories fresh. As one parent said, its like its all back in your face again, even now years later.

The Gold Star families do not all have one opinion. But, as Ami Neibereger-Miller said, you can respond in a compassionate way that you disagree. See San Antonio Express News report.

The remarkable thing about the whole Khan debacle, in my opinion, is that most people saw Mrs. Khan standing there on that stage with her husband and understood on some level that she was hurting. It took someone with little empathy to wonder why she was not talking. As a member of the military community, I find much reassurance that most people understood on an instinctive level. Unfortunately, some, like Donald Trump, just had no idea what she was going through. What we now know is that she saw the big picture, high definition perhaps, of her son behind her. She was overwhelmed with memories of her son.  That is a Gold Star mother.

Donald Trump’s pronouncements are like a broken record, one after another. He recently said that women who are harassed at work need to change jobs or careers. He said nothing about the possibility that, oh by the way, maybe we should enforce laws prohibiting sexual harassment. He questioned the women who are accusing Roger Ailes of sexual harassment. Later, his son, Eric, tried to explain his comments. He said his sister, Ivanka, is strong. She would not allow herself to be harassed. He added that she should report any harassment to Human Resources. Criticism followed, apparently because he indicated some strong women could somehow prevent harassment.

Gretchen Carlson, one of the women accusing Roger Ailes of harassment, tweeted that Eric was essentially blaming women for the harassment, and that she is strong. Megan Kelly, the Fox anchor, simply tweeted, “Sigh.”

Finally, later in the day, Ivanka appeared on Fox TV News and said sexual harassment should not occur. If it does, it should be reported. See CBS news report.

Those poor Trumps. It takes three of them to finally figure out their stance on sexual harassment.

In the recent case of Veasey v. Abbott, No. 14-41127 (5th Cir. 7/20/2016), a rare en banc panel struck down Texas’ strict voter identification law. En banc is a rare procedure. It means the entire court hears a re-hearing of a prior case. The plaintiffs lost a previous hearing which was heard by a smaller three judge panel. So, they asked for an en banc hearing. Parties typically ask for an en banc hearing when they think the smaller three judge panel based its decision on principles or caselaw that would not appeal to the wider, 15 judge court. The plaintiffs were successful. By a 9-6 vote the entire Fifth Circuit struck down the voter voter identification statute. The en banc panel found there appeared to be evidence of discrimination. That is not good for the state, because that means the lower court will look further into the possibility that intentional discrimination played a role in the decision to impose the very strict voter ID requirements. En banc requests are almost always turned down. No doubt, because this is a such a high profile matter, the Fifth Circuit allowed it, this time.

For employment discrimination cases, the Veasey decision reminds us of some basic tenets of discrimination law. As the court noted, direct evidence of discrimination is not required to show discrimination. As the en banc court noted, in this day, legislators (and employers) rarely announce an intent to discriminate. Veasey, p. 21. To require direct evidence would give free rein to legislators (and employers) who can cloud their actions in seemingly neutral language. Pointing to employment law, the court noted the circumstantial method of proof first enunciated by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). As the Supreme Court recently noted in Foster v. Chatman, 136 S.Ct. 1737, 1751-52, 1754-55 (2016), people hide discriminatory intent behind seemingly legitimate reasons. If Jane were fired from an at-will job for being late once, we might conclude that the firing was legitimate. But, if we then learned that Joe, who had the very same job as Jane, was late numerous times with no penalty, then we would doubt the given reason was valid. Veasey at 22. Context matters, concluded the Veasey court. Indeed, it does.

The Fifth Circuit remanded the case back down to the lower court regarding among various issues whether the discrimination was intentional. See the opinion here.

Retired GEN John Allen spoke at the Democratic National Convention last week. He has since explained that he felt he had to speak up because Donald Trump advocates that the military violate the recognized rules of war. See ABC news report. Yes, there are what we call “rules of war.” One of those rules is that we do not torture captured combatants. We do not murder families of terrorists. The rules of war are developed from various international treaties and agreements. These rules have existed for the U.S. Army since before World War II. So, when Donald Trump endorses “enhanced interrogation techniques,” he places every commissioned and noncommissioned officer between a rock and hard place. I previously wrote about the candidate’s support for unlawful orders here.

The concern, as GEN Allen (R) points out, is that if Mr. Trump becomes president and does indeed order torture, every officer and every NCO will be required to refuse that order. We have been trained since the post-Viet Nam war era to refuse any unlawful order. So, yes, as John Allene points, his ascendancy to the presidency would have dire consequences for civil military relationships.

And, if we change our regulations to require that all order be obeyed? Then, we return to the days when a Mai Lai massacre can occur. Worse, in my view, military order and discipline become that much more tenuous.

I was fortunate to command three different Infantry companies, in two states. Two companies were top notch. The third was more challenging. In a unit with leadership issues, it is essential that the leaders set the example in every way possible. The troops see everything. Cutting corners, relaxing rules, allowing torture here or there would threaten discipline for every soldier. Donald Trump has no idea, just no idea.

Words cannot express how offensive I find Donald Trump’s remarks. He was speaking about Khizr Khan, the father of Capt. Khan. Twenty-seven year old Capt. Khan was killed in Iraq in 2004 while serving in the U.S. Army. The father, Khizr Khan gave an emotional speech about his son at the Democratic National Convention. During his speech, he challenged Donald Trump, asking him what sacrifices he has made for his country.

Well, a few days later, Donald Trump was asked that question. What sacrifices has he made? He said he has made a lot of sacrifices. Pressed for more details, he said he has worked very, very hard. He has created thousands of jobs. See ABC news report.

I do not know what to say. I lost friends in Iraq and Afghanistan. I have written about them here on this blog. They were part of my Army family, but not my blood family. I am no expert on Gold Star families but I know a couple. Gold Star refers to families who lost someone in the wars. I can say without hesitation that “hard, hard” work in no way compares to losing a spouse or a parent.

Back in the 1970’s, a football player, Rocky Bleier payed in the NFL. He was the first Viet Nam veteran to do so. Reporters would ask him if football compared to combat. He would try to answer, but how can you explain the extreme violence of combat? How do you explain the pain and deep sense of guilt of losing a buddy? There are no words to explain such profound losses. There are no words to explain that working “very, very” hard is nothing like giving up one of  your sons for your country.

When we lost 1SGT Saenz in 2006, I was shocked, scared, overwhelmed. A few weeks later, I saw my old buddies from Ft. Jackson. They were the ones who served in Baghdad with 1SGT Saenz. Everything I had felt before was magnified. These were good friends of mine. It rocked me to see the pain they felt, the unnecessary guilt they felt. Losing one good man literally knocks you on your heels. And, I was not a blood relative, just an Army friend.

I only hope no Gold Star family members hear about his remarks. His response trivializes a life-chasing event. There is a gulf between veterans and civilians. But, most civilians, perhaps 99.9% appreciate what they do not know. Most remain silent when it comes to comparing war time and peace time. Donald Trump does not.