Facing Consequences And Moving On

Episode Notes

Transcript

Above the Law – Thinking Like a Lawyer

Facing Consequences And Moving On

06/25/2019

[Music]

Intro: Welcome to Thinking Like a Lawyer with your hosts Elie Mystal and Joe Patrice, talking about legal news and pop culture, all while thinking like a lawyer, here on Legal Talk Network.

[Music]

Joe Patrice: Hello. Welcome to another edition of Thinking Like a Lawyer. I am Joe Patrice from Above the Law. And with me, as always is Elie Mystal. Welcome back, you –

Elie Mystal: As always, when I’m awake.

Joe Patrice: I guess, that’s — that’s, that’s kind of the problem for those — I mean obviously you’re all longtime listeners of the show, I would hope, but Elie did not make our last recording because recording at 3 in the afternoon apparently is not enough for him to wake up.

Elie Mystal: I was up the night before last week until 3:30 in the morning writing about Linda Fairstein, trying to tear her, a new asshole, and I got to bed late and I woke up late and I missed trains, and it just didn’t work out for me.

Joe Patrice: Yeah my favorite thing, speaking of that particular person, my favorite thing about her was today in morning docket, I included an item because Mariska Hargitay is not talking to her even though like they’re very close, because Law & Order: SVU is based on Linda Fairstein, and I posit that maybe that should be Wolf’s next project, like law and order qualified immunity, which is just all the previous characters from seasons and seasons of SVU, trying to sue for once the DNA evidence clears them.

Elie Mystal: I wouldn’t watch that. That’s great. That’s not what I’m pissed off about today.

Joe Patrice: Oh fair enough, I wouldn’t think so.

Elie Mystal: I’m actually pissed off about the thing we’re going to talk about with our guest later, so I am calling an audible of thing that I’m pissed off on.

Joe Patrice: Cool.

Elie Mystal: Because today is we’re recording this on the 20^th, it’s the day after Juneteenth and let me tell you folks, being a Black parent is some wearying shit, all right, like just trying to navigate young Black people through this goddamn racist world is more difficult than you think.

So yesterday at Juneteenth, tell my kid, it’s Juneteenth we’re celebrating, he’s like what are we celebrating, I explained Freedom of Liberation. His younger brother is only three, says, what is freedom, which is actually a difficult question, and I kind of stammered with it and this, my son, the six-year-old, he pipes up with freedom means Black people get to play video games with White people, and fine, I go with that, that’s fine, right.

So life moves on. Later, I’m like it really is like biting my ass, because I’m like — I dislike that my son has reduced the entire struggle, 400 years struggle for human dignity from freedom from bondage to playing some video games with some White kids, right, like that’s not great. So –

Joe Patrice: It’s eyes on the prize and in this case the prize is a loop box.

Elie Mystal: Right, like that’s not right.

Joe Patrice: Yeah, yeah.

Elie Mystal: So thanks. My wife comes home, I kind of explained to her my frustration. She’s like don’t worry I got this right. So after every, just in our house we always ask the kid what they learn today like that’s a thing that we do. So we kind of wait for the what do we learn today conversation. He, as we expected, tells mommy, oh I learned about Juneteenth, I learned that we’re free.

Mommy says what’s freedom, he says video games and she’s like freedom is also the right to have a family, because when there were — in slavery times, they could take children away and sell them to other people, and I look at my wife I’m like whoa, whoa, we’re doing this now. And she looks at me like yeah, we’re doing this now, and so we do it, right, we like explain to him.

Joe Patrice: And so this is why you were up till 3:30 in the morning with a crying child then, right?

Elie Mystal: We explained to him child separation in the slavery context because my wife has figured out and I go along with her, that this is also a way to talk about how terrible what Trump is doing. He’s also separating children and whatever. And what I’m trying to say it’s tough, right, because like he’s six and he wants to play Mario Kart, and we’re having to try to explain to him about child separation so that he can appreciate that he’s not separated, right.

Joe Patrice: Yeah.

Elie Mystal: And so we do all this, it takes me — it’s made me like 20 minutes of like and just his eyes are like saucers, like oh my God, right. And so, he seems to be getting it and that and he understands that kidnapping is bad, and when he were done, he looks up and he goes, wow that’s really bad guys, but can you tell me what was good about slavery?

I’m just — I’m done right like because you almost want to cry, like because you obviously want to raise your children to think that there is good in everything and think that there are both two sides to an argument and to understand and appreciate both sides.

But when you raise Black children and they say can you tell me what’s good about slavery, you are just — what do you say?

Joe Patrice: I guess, I guess Kanye has some arguments on that. He made that call a couple of years ago. Yeah.

Elie Mystal: I said there’s nothing good, there’s nothing ever good about it, it was all bad and we can continue this conversation another time and then we ended that whole bit with since it’s the holiday does that mean I get to stay up late, which I said yes.

(00:05:02)

Joe Patrice: It’s fair enough.

Elie Mystal: Good job my kid.

Joe Patrice: Fair enough. Well, I mean, yeah, learning from the master. So yeah.

Elie Mystal: That’s what I was pissed off about.

Joe Patrice: Yeah. I don’t know –

Elie Mystal: This racism is killing me inside, that’s what I’m pissed off.

Joe Patrice: Yeah, I don’t know, okay, that’s fair. That story just seemed like a fun anecdote not really a –

Elie Mystal: Fun?

Joe Patrice: Well not, I mean from the perspective of those of us who watch you struggle with raising children it was fun, but yeah, no like, no that’s, that’s terrible, but it was interesting and amusing to listen to as you had to fight your way through video game, the video game liberation movement. I mean I enjoyed that.

Anyway, so yeah, so that’s all that’s been a problem for you?

Elie Mystal: Yeah, my younger son was trying to get in the conversation but we did not hear is — we did not hear him calling from us for us from downstairs.

Joe Patrice: Oh, you missed a call?

Elie Mystal: We missed his call.

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Elie Mystal: That was perfect.

Joe Patrice: Yeah, no, no that was a good assist, like you weren’t giving me much with. I mean there’s not a good rule in there with –

Elie Mystal: Do you also hate slavery?

Joe Patrice: Yeah exactly, right.

Elie Mystal: Maybe you should check out Smith.ai.

Joe Patrice: Yeah, yeah. I mean which yeah fair, so yeah, that, that was a good assist.

Elie Mystal: All right today, our guest today is Hanna Stotland, she owns her own business called Admissions Consultants, Hanna, just full disclosure is a friend of mine from way back. We go back to law school together. Hanna has one of the most interesting practices that I can think of. She helps students who have screwed up, students who have messed up either academically, socially, legally who have messed up and which helps them get back on the good foot, get back into a position where they can go to college or go to law school and we wanted to talk with her today in light of some of the recent news. Hanna, how are you doing?

Hanna Stotland: I’m doing great. Thanks so much for having me.

Elie Mystal: Thanks for coming on. I am sorry that this is not a singing podcast, because Joe wouldn’t be able to keep up with us.

Hanna, obviously I wanted to have you on the talk about Kyle Kashuv or Kushav, I am not exactly sure how to pronounce his name, but this is the right-wing conservative kid who got into Harvard College and then had his offer rescinded from Harvard after screenshots came out of him using the N-word I think 11 times in the shared Google Document, making anti-Semitic comments about killing Jews and just generally being a 16-year-old douchebag, Harvard saw this and rescinded his offer.

You wrote I thought a very powerful piece in Slate, kind of from your expertise arguing about why Harvard made the right decision and what the path forward is for for Kashuv?

Hanna Stotland: That’s right and I work with and I was once a high schooler who had gigantically screwed up in a different way and for different reasons than this screw up. But all the same I had pretty much ruined my education and I think how are you arrived at that spot can vary, but it feels really crappy either way and it’s been an incredible experience to work with so many of these students who have arrived at that bad place, like well, I’ve ruined my education, there’s no hope anymore.

Kids who have arrived at that bad place, who I can help to move on to higher education and hopefully I mean in my case, I got to have this incredible experience that I really valued and that still brings me a lot of joy as well as being a nice credential.

So my, my story had — as much of an educational pot of gold at the end of the rainbow as you could have, and many of my students stories end the same way, and that looks different depending on their goals and their majors and their dreams but to have a great experience and earn a good credential that helps them with their career goals, that’s my life’s work.

Elie Mystal: This is always a hard topic for me to fully empathize with, because I was a good boy, I was on the straight narrow and never got a detention in high school, once in middle school, but I remember that right, and kind of did what I was told and when I was told to do it in the manner in which I was told to complete it.

My entire — pretty much until I started thinking.

Hanna Stotland: Well you have to be twice as good to get half the credit, right? I mean that’s — that’s what, as you’re talking earlier about Black parenting, I don’t know if that was explicit in your household, but you probably got the message.

(00:10:04)

Elie Mystal: No, you’re exactly right about that and that’s probably — that’s one of the reasons why I was told to keep it together, but for the kids who didn’t, you said something very interesting, and if I’m insightful, you said, consequence and redemption are not intention. Can you talk a little bit more about that? Can you kind of explain like from your practice, like how consequence is actually the first step in the road to redemption?

Hanna Stotland: Right, and I don’t want to minimize the fact that there are unfair or disproportionate consequences and that some of my students are getting consequences, when we are not as certain as I would like to be about whether they committed the wrongdoing at issue. But in most of the cases there isn’t a dispute about whether the wrongdoing happened or not.

He did it, he got caught red-handed, he admits it, and an appropriate and proportionate consequence follows and that is what often prompts the kind of soul-searching that can make it possible for the student to learn better and for the most part, there was an interesting medical case study in the news about people who don’t feel pain and how they end up grievously injured because they keep reaching into the pot of boiling water to get the spoon and things like that.

And we need some pain and it doesn’t have to be physical pain, but it can be, but we need some pain to remember that, oh this action was harmful to me, right. I won’t reach into that boiling water again. If you don’t feel that pain, then you are very hampered in learning.

Elie Mystal: So do you think that beyond the — so you’ve already written that you thought the consequence of having his offer rescinded was appropriate. Do you think that’s enough? Do you think that goes far enough? What, do you think anything else needs to happen or do you think that’s about right?

Hanna Stotland: Well, I mean it’s the harshest thing that Harvard has and other institutions that have other types of relationships with him. It appears that we don’t know the inside story here but it appears that his organization Turning Point USA that he had been affiliated with that he abruptly resigned just as this information came out.

And so, it seems that they took the same angle as Harvard and how everyone else — if you were one of his classmates who even if you disagreed with him politically, maybe you thought this is a good sparring partner, maybe you respected him at some level. I had friends like that in law school, some of whom are still my friends. I think each of those people have to decide, do I feel like this is the person I knew, do I feel like this is someone I want to continue to associate with or would I — maybe on an interpersonal level it would just be I want to talk to you about this and make my own judgment about how you’ve learned and grown since you pulled this crap in front of your classmates.

Elie Mystal: Yeah. So one of the things with that then that occurs to me then is that the right wing is kind of rally around the flag and basically making him a martyr hero, is probably not helping?

Hanna Stotland: Well I mean if he wants to make a living as a commentator in our outrage machine, then this is the right move. I mean he can be an aggrieved White male victim, there’s a lot of high-paying work in that field and if, whatever, I don’t know what his goals are, but it would not surprise me at all if he makes more money than I do in the next 12 months off of this scandal, which hey, it’s a free country.

Elie Mystal: This is what I’m saying, the racism is killing me inside, because she is right.

Joe Patrice: Yeah, yeah.

Elie Mystal: He’s going to out earn me in the next 12 months by — he’s going to get on more TV than I do.

Hanna Stotland: Yeah I mean if he wants like a speaking career, he didn’t ask me for some free career advice, but I bet there’s a lot of potential here. If I were a soulless agent, I’m sure many agents have souls, but if I didn’t care about somebody’s history of racism and I just wanted to make some money, I’d be giving him a call, maybe he already has an agent, maybe he’s already got paid speaking gigs, I don’t know.

But I bet he will now.

Elie Mystal: Oh goodness.

Joe Patrice: Well, I mean TP USA dumped him. So like –

Hanna Stotland: That’s true.

Joe Patrice: Yeah, so it’s going to be interesting. I actually have been a little shocked at how this has played out because when the comments first started, a lot of right-wing people went after him early, largely because I think they were trying to play up the whole just being somebody who was part of a mass shooting shouldn’t make you special.

(00:15:03)

And it fed their — if fed that narrative for them and then they kind of have come around and now they’re defending but then TP USA dumped. So like it’s an identity crisis I feel for the right anyway.

Hanna Stotland: Oh that makes sense.

Elie Mystal: I want to talk a little bit about your other work Hanna. You have mentioned you are a Harvard Law graduate, the things worked out for you, when you’re dealing with a student who needs a redemption and wants to get into law school as opposed to simply college of colleges, there are hundreds of them, thousands, probably you can find your way.

With law schools, they’re 200, what 204, 202, like it’s a much smaller pool, what do students need to show kind of a law school admissions committee and then what do they need to show the Character and Fitness Committee to end up being a lawyer after some personal problems in the past.

Hanna Stotland: Right. So you’ve already highlighted the biggest difference between an undergrad application and a law school application, which is that the law schools always are bearing in mind what do our Bar pass rate numbers look like and are we admitting someone who is not barable, either because of character and fitness or because we think they’re not good at standardized tests.

So that is something that they are thinking about absolutely from the word go when an application arrives in their office. And so, you need to be able to show that you’re going to be – now, if you happen to be aware that there’s a state that’s particularly forgiving and you intend to practice in that state, that’s something that you might mention.

But the biggest way to take character and fitness into account at the law school application stage is to think about making sure that no one in the closest possible read, no one could possibly interpret your law school application as having any dishonesty or hiding involved. This is something, is this a good best practice for anybody applying to any kind of school.

But the character and fitness process is far, far more searching than anybody else. For example, everybody understands except for Bars that if you had a juvenile conviction or something or any kind of criminal matter that was expunged that expunged means go on, literally means we wiped it off the blackboard, right, the file is not in the courthouse anymore.

Nope. At the law school level you better disclose that, because you are going to need to disclose it again at the character and fitness level, and then they’re going to compare it to your law school application. And if you are more candid with the Bar than you were with law school, they say why the discrepancy.

And these can be big, big issues, it’s not the crime, it’s the cover-up when it comes to law school application and by extension, Bar admissions.

Elie Mystal: But it was expunged, if anybody should understand expunged means it should be the character and fitness board.

Hanna Stotland: Well, the applications could not be more clear. It says even if this was expunged, erased, removed, vacated like there’s a whole list of lawyerly synonyms for expungement on a law school application and saying, no you have to tell us anyway. Now, just disclosing it is probably not going to keep you out, right. I have students for example, I’ve worked with students who had let’s say a public urination ticket while they were in college.

Elie Mystal: Wait, that’s illegal.

Hanna Stotland: That’s illegal. Well apparently it is in Virginia where that student was arrested, pot tickets things like that and typically the fact that you had that criminal involvement or perhaps a minor disciplinary record on your undergrad record, the fact that it’s there is probably not going to keep you out. But a failure to disclose it, will.

Elie Mystal: Well I mean yeah, like you said, it’s not the crime, it’s the cover-up. I mean that’s tough.

Hanna Stotland: Yeah exactly, but I often, sometimes students will come to me after they have — they got in a hole and then they kept digging and then they call me, which I needed to do a better job of getting the message out that I’m here. But for example, they did a first round of law school applications without disclosing the expunged arrest.

Now, they want to try again, they have the better LSAT score, they’re going to reapply, but now you better — you have to disclose this and I can’t abet you repeating your dishonesty.

Elie Mystal: Right.

(00:19:58)

Hanna Stotland: But all the schools that you applied to last year are going to see a discrepancy between what you said then and what you said now. And so I’m going to have to help them explain that in addition to explaining the underlying offense, the ecstasy possession or whatever it was.

Elie Mystal: How forgiving do you find the top law schools? I know that’s a very kind of open-ended question also because it’s kind of is open-ended what you define is top law school, but you know my impression from a college perspective is that yeah, a guy like Kashuv, okay, he’s not going to get into Harvard, but you know Liberty is right there. If you’re at the law school level, do you find that the top Ivy’s and the T14 and whatever are forgiving or they just have so many applicants that they can kind of easily discard people with checkered pasts and kind of make those kids go to like second or third-tier law schools?

Hanna Stotland: So, the top law schools however you define them are relatively forgiving if you’re a student who they otherwise clearly want to admit, you have exactly kind of numbers you’re looking for, etc., and if it’s clear that the problem on your record that you’re disclosing is not going to make you unbarable. And here as in other kinds of difficulty, time is your friend, right, the further in the past the wrongdoing was and the more life you’ve lived keeping your nose clean since then, the better argument you can make, that you’re going to just walk the straight narrow from now on.

And Harvard College and Harvard Law School did eventually admit me despite now this wasn’t a criminal issue, but a pretty catastrophic academic failure with three semesters of straight F’s with the GED and —

Elie Mystal: You don’t need to try to do that, that’s hard.

Hanna Stotland: Yeah, you especially have to try to do that at the kind of crunchy holistic, we educate the whole child kind of private school that I was going to, I mean, any normal school would have expelled me like okay, like she is officially, she is a conscientious objector to high school, she is not cooperating, let’s get rid of her, but they were like no that would make the student feel bad, we’re a community. So I was enrolled all the way up until the end.

But the takeaway is that eventually Harvard College took me and Harvard Law School took me without any kind of problem that wasn’t an issue. I had to apply three times to get into Harvard College. I applied very widely around the country, but that was a school that I had applied to three times. Harvard Law gave me no trouble at all, sailed in and then when I was doing character and fitness for the Illinois Bar, they made me petition to be permitted to sit the Bar because of my failures in high school.

Elie Mystal: Wow.

Hanna Stotland: But Harvard didn’t have a problem with it.

Joe Patrice: Wow.

Elie Mystal: I want to get you out of here on this, because I know this is part of your work and I think it’s a really important part of your work. Have you seen a change in how schools are handling people who have been either accused or certainly people who’ve been convicted of any kind of sexual assault, because 10 years ago I would imagine that, a mere accusation of sexual assault that was not substantiated by any kind of legal process or conviction, not even a thing, that doesn’t even show up. Now I imagine it shows up. How are you seeing and this is for colleges or law schools, how are you seeing them kind of deal with — are they dealing with it any differently now than they were three, four, five years ago?

Hanna Stotland: If we’re talking about people who have not been in criminal system, but who have been found responsible by a school process, I think it’s been hard for those kids to transfer for a while. The difference is that there’s a whole lot more of them and I have if anything less faith in those outcomes than I had before.

These are kind of an amateur truth-seeking process that is really about protecting the institution as opposed to a justice process where neutral professional adjudicators weigh in on carefully investigated evidence, that’s not how it goes for the most part in college Title IX proceedings where there’s an accusation of sexual misconduct. There’s a huge range of how okay versus terrible these processes are, but a lot of them are truly terrible and none of them are great, none of them are what you would hope for in terms of justice fairness and looking for the truth that you would want for your kid regardless of which side your kid was on. As a complainant or as a respondent you would want a truth seeking, honest process and that’s not really what’s going on.

(00:25:01)

So these kids up until the Varsity Blues criminal admissions scandal, which we should have a whole another episode talking about that. Until then, I would have said that the kids accused of sexual misconduct at previous schools are the most radioactive kids in the industry far more so than my kids who are felons, who have either pleaded guilty or being found guilty beyond a reasonable doubt with all kinds of procedural protections. So we know they did the felony, it’s not in dispute. Those felons have a way easier time in the Admissions office.

Elie Mystal: Really?

Hanna Stotland: After getting out of prison. Then my kids who have been let’s say suspended for wrongful touching from a previous college.

Elie Mystal: Wow. So if I’m I mean you’re basically saying if I’m in college and I get convicted for armed robbery.

Hanna Stotland: Uh-huh.

Elie Mystal: That’s going to work out better for me.

Hanna Stotland: It might. So I don’t have data about armed robbery but I do have data, well I have anecdote I should say, but I have experienced the students who had felony DUIs, breaking and entering, a lot of issues that were related to substance abuse that led them to get that felony.

Those kids coming out are breeze for me to place in comparison to a student who has been found responsible by a faculty and staff panel of “non-consensual sexual contact”, and I say “not because there isn’t such a thing as consent” but because they can be found responsible because the consent wasn’t verbal or for other reasons that many of us would not look at and say oh well, you’re a rapist because you did that, you should be — you belong in jail.

Elie Mystal: Joe.

Joe Patrice: No, I can kind of see why that distinction is because as you said like a lot of people you’re working with, you can tie it to substance abuse or something like that and you can make the case a condition existed that no longer exists; whereas, I could see from the school’s perspective saying there’s not really such a corollary for sexual misconduct. You can’t like say oh you know, they did that sexual misconduct thing but an event has happened, they’re fixed now or whatever it is.

And so, I could see why the school would be leery even put aside the procedural issues, I could see why they might be more concerned about that then with your situations where you can point to one thing and say something has changed that is definable and concrete that makes them now no longer a threat to other students.

Hanna Stotland: So what you’ve just said is excellent law professoring, as far as harmonizing the cases in the body of evidence. And I don’t think that that’s what’s going on. I think this is pure — I don’t think they’re bringing that, I think what you said isn’t wrong. But that the schools are actually motivated by what am I getting sued for right now, what do I have to worry about, and what do I need to protect myself from.

And there isn’t so much a movement of foot to eradicate campuses of felons or of recovering addicts or any other group. And that the present cultural moment that is emphasizing the eradication of men who are accused, many of whom are horrendously guilty of horrible behavior, along with whoever else the net dredges up and we need to get rid of them and we get terrible press and expensive lawsuits and all kinds of stuff like that, stemming from our Title IX actions, we’re under a microscope for that.

And we’re just not under a microscope as far as if we admit a student who did a DUI and he does another DUI, we’re very likely get sued for that or get a terrible headline in the paper. I mean so the takeaway is, it’s all the lawyer’s fault all the time.

Elie Mystal: I mean that’s really what you’re saying. I mean it’s almost part of it as much as I think Joe is exactly right about why maybe it should be this way. I think you’re right that the reason why it’s this way is not that kind of deep level of analysis, it’s much more kind of immediate cover-your-ass lawyering, which is a good way to end an episode of Thinking Like a Lawyer.

Hanna Stotland: It’s a little bit like doctors say I have to practice defensive medicine because I get sued for malpractice so this is defensive medicine and I think this is defensive administrating on part of universities, and we see it expressed through the Admissions’ office.

Joe Patrice: All right.

Elie Mystal: Hanna that was great. Thank you so much. Joe.

Joe Patrice: Oh yes now, so you don’t have memorized the spiel to end.

Elie Mystal: No, not even a little bit.

Joe Patrice: And thanks everybody for listening. You should be subscribed to the show, you should give it reviews, always write something, don’t just result with the stars because that helps, you should read Above the Law.

(00:30:02)

Follow us on Twitter. I am @JosephPatrice, he is @ElieNYC.

Actually Hanna, if people wanted to get a hold of you all, how would they do that?

Hanna Stotland: So my website is hannastotland.webs.com, if you Google Hanna Stotland, it should be the first hit. You can also find me on Facebook, if you Google Hanna Stotland, no H at the end of my name. And thanks so much for having me.

Joe Patrice: Oh, absolutely. And thanks also to Smith.AI who is sponsor, who sponsored the episode. You should listen to the other law podcasts from the Legal Talk Network and the Jabot and now I think I have gotten through everything.

Elie Mystal: Peace.

Joe Patrice: Cool, all right. Thanks.

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