ALUMNI: Meet U.S. Supreme Court fellow and alumnus Parker Douglas 

Parker Douglas

Parker Douglas jokes that friends tell him he’s the legal equivalent of Forrest Gump.

With a storied legal career that has included a diverse array of cases tried while working as an assistant federal defender and in private practice before joining the Utah Attorney General’s Office in 2014, Douglas has worked on some of Utah’s highest profile cases over the years.

(Utahns will remember him as the defense counsel for Brian David Mitchell in the federal proceedings against Mitchell for the kidnapping and sexual assault of Elizabeth Smart, a case which ended in 2011).

These days, Douglas has taken on a new role as a 2017-2018 fellow in the Supreme Court Fellows Program. The year-long appointment allows Douglas to work in the U.S. Supreme Court’s Office of the Counselor to the Chief Justice. The program is designed to give mid-career professionals a chance to better understand the judicial system.

Douglas recently spoke to the S.J. Quinney College of Law about his time in law school, his most memorable professors and his current work assignment in a Q&A.

Q: What made you interested in going to law school?

A: As an undergraduate, I debated between going to graduate school for English or History, or entering law school.  I chose English, but because I was a double-major in English and History as an undergraduate, I never separated studying literature from its historical context.  My approach to the law is informed by a similar historical sensibility.

Before law school I obtained a Ph.D. in English from the University of California.  My sub-specialty was American literature, and I wrote a lot on literature and culture of the early republic.  That gave me a grounding in the thought, practices, everyday life and political ideas of people in what became the U.S.  I wrote my dissertation on how Americans have conceived of the mass media–how it relates to their everyday life–from the founding era to the late 1990s (which is when I finished the dissertation and entered law school).  Because of that background, contemporary complaints about the media–from both the Left and Right–I find are nothing new, when considered historically.  In fact, Chief Justice Taney once referred to “fake facts.”  Morse made most of the claims about the telegraph that folks do about the internet and social media.

I married in graduate school and upon graduation had two academic job offers.  My then-wife was also an English Ph.D. and the market at the time was such that if one spouse found a tenure track position, the other often had a life of adjunct teaching to anticipate.  We were disillusioned with the academic market as a result, and after discussion I decided to go to law school.  I applied broadly, but as my then-wife was a native Utahn, and we loved the outdoors so we chose Utah.  It was a wonderful choice for me because the faculty at the law school is excellent, accessible and supportive.  I couldn’t have asked for a better law school experience.

Q: What do you do today? How did your time at the law school shape and/or help what you are currently doing?

A: I am currently a Supreme Court Fellow, a year-long fellowship where I am assigned to the Court, which supports my research projects for a year and I also am detailed to the Office of the Counselor to the Chief Justice.  In that office, I run the enrichment program for Supreme Court Interns, a weekly class on Court and constitutional history, as well as topics on the federal judiciary generally.  My other activities as a Fellow are described below.  Before my time as a Fellow, my legal career was really varied–something I like because I like learning new things.  Like the late George Plimpton I’d try anything.  Some friends in the law have noted the cases I’ve involved in and suggested I’m the legal equivalent of Forrest Gump.  Folks have noted that I’m sometimes rumpled rather than pressed in court and that I’m more focused on the thing analyzed by the court rather than my demeanor or surroundings and since I sometimes scratch my head and pause (unintentionally), folks have also compare me to or said I can be like the character Columbo.  I like this one as I was a huge fan of the show.  But each comparison seems both apt and incorrect to me, as I’m Douglas not Plimpton, Gump or Columbo, but since you’re the reader you get to make the call or no call at all.

In any case until June 2017, I worked in the Utah Attorney General’s Office, serving at different times as Federal Solicitor, Chief Federal Deputy and Chief of Staff under Attorney General Sean Reyes.  My work there almost exclusively consisted of constitutional and multi-state litigation defending Utah law or actions of Utah officials, when challenged in federal court, or advancing Utah’s interests through litigation in concert with other states, and a lot of those cases were in the news locally and sometimes nationally.  I also was a policy liaison for the office and at times worked with the legislature–something initially foreign to me but which I ultimately valued, as I came to the work with initial suspicion of the legislative process but came out of it with great respect for the way legislative compromise works in our country, even when I experienced disappointment on particular issues.

Prior to the AG’s office, I was an Assistant Federal Public Defender for nearly six years, and the highest profile work I did there was to serve as Brian David Mitchell’s defense counsel in the federal proceedings against him in what was known as the “Elizabeth Smart Case.”  I also worked with a team of federal public defenders representing a Guantanamo detainee.  Working as a public defender was the most difficult but, for me, also the most personally rewarding work I’ve done.  Intellectually, I enjoy the work I’m now doing at the Court and that I did in the AG’s Office, but the great need of the indigent for dedicated legal representation is something that made me feel like I was doing socially necessary service every day I went to work.  It also, to the extent I am a decent courtroom advocate, provided the most opportunity to develop skills as an advocate.  I believe working in criminal defense is the best training ground for courtroom litigators.  I’ve worked in the Supreme Court and Appellate section of a multinational law firm (prior to both jobs just described), but I learned more about how to be a sophisticated, tactical, efficient and ethical courtroom advocate from colleagues at the Utah Federal Public Defender Office and other criminal defense counsel I met during my time there.  I admit, I’m biased in this regard.  I’ve worked–very recently–with very talented prosecutors and civil practitioners.  But I know of no better training ground for courtroom advocates than public defender practice, which demands precision, dedication and inventiveness in order to do the job well.  As someone who grew up pitching and loving baseball and baseball metaphors, I’d argue that public defenders work with the smallest “strike zone” and that learning how to effectively and morally advance a strong defense for a criminal defendant is the most challenging task a courtroom lawyer could be asked to do.

Law school prepared me well for these varied jobs.  At the time I attended S.J. Quinney, professors Michael McConnnell, Ronald Boyce and Paul Cassell were all there.  Professor Cassell taught me criminal procedure in a manner that made the facts central–an invaluable lesson that served me in both defense and prosecution practice.  Judge Boyce taught me not only Criminal Law, but provided practical advice.  There are many stories of Professor Boyce.  The one I would share is when he told me that a good orator doesn’t need aids such as PowerPoint.  In his characteristic understated humor he said once: “Parker, can you imagine Winston Churchill using PowerPoint in a speech?  (Gesturing) ‘We will fight them in the streets–and then a picture of a street popping up, etc.?'”  You get the picture.  So did I, and I have only used PowerPoint in court once, against my better judgment, on insistence of an expert witness.  I never will again (or so I would like to think).

Professors Boyce and Cassell taught me a great deal; and Professor McConnell was a great mentor to me.  I took every constitutional law class he offered.  I also did an independent study with him where we read the entire congressional record, as well as contemporary debates, surrounding the passage and ratification of the Thirteenth, Fourteenth and Fifteenth Amendments to the Constitution.  This seemingly esoteric study has been invaluable to me over the years when I’ve been involved in constitutional or civil rights litigation.  When Professor McConnell was nominated and appointed to the Tenth Circuit Court of Appeals, he invited me to be his first law clerk.  I learned much in that clerkship and continue to learn from him.  My other teachers were the federal district court Judges Campbell (for whom I also clerked), Benson, Kimball and Waddoups, whom I appeared in front of most frequently, and Magistrate Judge Warner also was a very generous mentor through my younger days lawyering.  I also worked at Parsons Behle and Latmer for some time and at Hatch, James and Dodge. At those firms Fran Wikstom and Brent Hatch first taught me how to be a practicing lawyer.  Lynn Donaldson, Bob Steele and Ben Hamilton were lawyers who rounded out the pantheon of legal Jedi Masters to this little padawan.  These people all still seem like legal giants to me–personal myths though very real and admirable people.

So, the law school in these ways has intimately shaped the lawyer I am today.  It put me on the path I’ve just described and first provided me with the contacts and skills I could improve upon with effort.

Q: What is one memorable experience from law school that will always stay with you?

A: Aside from Judge Boyce’s admonition, the most memorable experiences I have occurred in the study group I formed with friends.  We were a group who particularly avoided open competitiveness and had a healthy humor about the law and its development.  I think both of these things were important because they taught me that nothing was necessarily sacred about the law, and that the law is a human construct that is subject to human foibles.  Remembering these things has allowed me to make strong arguments in court, when necessary, without pause, and to argue for out of the ordinary interpretations of “settled” principles when those principles under certain facts lead to absurd results.

Q: You’ve recently been named a Supreme Court fellow, which is a huge honor. For those unfamiliar with the program, can you explain what this entails? Why is this something you’re interested in doing at this point in your career?

A: The Supreme Court Fellows Program started in in 1973.  It offers mid-career professionals, recent law school graduates, and doctoral degree holders from the law and political science fields an opportunity to broaden their understanding of the judicial system through exposure to federal court administration. Each year, the Supreme Court Fellows Commission selects four individuals to work for one of four federal judiciary agencies for a year-long appointment in Washington, D.C.: 1) The Supreme Court of the United States; 2) the Administrative Office of the U.S. Courts; 3) the Federal Judicial Center; and 4) the U.S. Sentencing Commission.

All Fellows gain practical experience in judicial administration, policy development, and education. They also benefit from time to study and write, and a vantage point from which to develop an academic research agenda.  In addition to substantive responsibilities, Fellows engage in a variety of special enrichment activities: A Supreme Court Preview conference at a law school in September to learn about cases for the upcoming Term; Gallery seating at Supreme Court oral argument and non-argument sessions; Luncheon seminars sponsored by the Counselor to the Chief Justice, featuring speakers such as the Solicitor General, the Secretary of the Smithsonian Institution, and the White House Counsel; Meetings with various jurists and senior judicial administrators; Supreme Court Historical Society events, including an annual lecture series on Supreme Court history presented by distinguished scholars; and other programs hosted by the judiciary, the Smithsonian, and various government and non-profit institutions.

The Program requires each Fellow to produce during the year a publishable-quality work of scholarship on a topic relevant to the agency placement. Fellows present their works in progress at a winter research workshop attended by senior judicial administrators held at the Supreme Court. In the spring, each Fellow presents his or her research paper to a group of federal judges meeting as a committee of the Federal Judicial Conference.

I was chosen to be the 2017-2018 Supreme Court Fellow assigned to the Supreme Court.   The Fellow based at the Supreme Court is assigned to the Office of the Counselor to the Chief Justice and has primary responsibility for briefing foreign jurists, court administrators, and other dignitaries on the operation, procedures, and history of the Court. The Fellow gains exposure to foreign legal systems, including those in developing nations, through direct contact with foreign judges and court officials. The Fellow also assists in the general activities of the Counselor’s Office, which supports the Chief Justice in his administrative and policy functions as head of the judiciary. This fellowship is ideally suited for individuals who have an academic interest in foreign legal systems and wish to broaden their knowledge through dialogue and exchange with participants in those systems.

So, in my job I work for the Counselor to the Chief Justice, assisting the Chief Justice in whatever manner necessary.  I also serve as the Court’s ambassador as I’m the interface for jurists, lawyers and dignitaries from other countries.  So far, I’ve met with over 120 delegations from more than 90 countries, and have learned a lot about our own system of law by introducing it to those from other countries and comparing our approach to legal questions to how other countries handle similar issues.  I also teach a Court history and constitutional law course to the Court’s interns from universities throughout the U.S.

Finally, I spend the balance of my time working on papers, and I am currently writing three articles, using materials from the Court, the Library of Congress, the nearby Folger Shakespeare Library and the Federal Judiciary center.

I chose to take this year as a Fellow because there were several articles I have wanted to write over the past five to seven years and just haven’t had the time to do so.  The Supreme Court Fellows program allows me to write, and members of the judiciary and the judiciary research centers generously review and give me feedback on my research.

I’ve also had a ringside seat for every argument this Term.

Q:  You’ve worked in many interesting positions and on many high-profile cases. Can you share what one or two of your most memorable cases have been –and what it was about working on them that will leave a lasting impact on you?

A: United States v. Mohapatra is a memorable case for me, though likely unfamiliar to many.  It was Utah’s first trade secret prosecution and involved a chemist who allegedly emailed chemical “recipes” to India that allegedly belonged to a Utah chemical company.  It’s memorable to me because it stands as a reminder how much power federal prosecutors have, and how dangerous that power can be when it’s not wielded responsibly.  As the record in the case shows, before indictment in front of the grand jury neither the investigating agent nor the charging prosecutor did any outside investigation to determine whether what the defendant sent was, in fact, a trade secret.  Rather, they took the word of the company’s management–who were not trained in chemistry–that trade secrets were at issue.  Because of the high stakes in the case it took two years to resolve.  The result was that the district court found that what the government alleged were “secrets” were in fact a type of chemistry often learned by first year college chemistry students.  On the stand, the FBI agent admitted he had done no outside investigation to determine if the chemical compound “recipes” at issue were in fact “secrets.”  Dr. Mohapatra was ultimately cleared of the trade secret charges, but he was unable to leave the country and didn’t see his wife or two sons–aged 3 and 5 when he was charged–for two years his case was pending as his name was cleared.  His case stands for the type of damage sloppy investigation and prosecution can cause.  He lost two years with his family.  As he awaited resolution of his case, he worked in Logan fixing copier machines or doing manual labor as no chemical firm would hire him given the cloud of allegations.  Since his name was cleared he has worked in chemical labs at major universities both in Canada and the United States.  His case is the most egregious example I’ve ever seen of overcharging a person without actual evidence.  The result that the court found the charges absolutely baseless is a constant reminder to me that our justice system works correctly if both sides have responsible advocates.  It also stands as stark example of how much personal damage sloppy investigation and prosecutions can do to innocent people.

There are many lesser known cases on which I’ve worked that have taught similar lessons, and often think the biggest impact I’ve had as a lawyer is by simply doing a thorough job and not “rolling over” on any case.  If I had any advice for younger lawyers it’s that negotiation should only occur when you thoroughly know the strength and weaknesses of your case.  If you’re discussing settlement prior to that investigation, you’re likely not serving your client well, and you’re not learning what you can as an advocate.  That goes for prosecution or defense, plaintiffs or defense.  Good legal work is difficult.  I’ll be the first to admit that I haven’t always been at the top of my game.  And I don’t believe anyone always can be, regardless of those who might claim otherwise.  My experience is that the majority of lawyers work hard, but don’t work smart, and often spin their wheels and mouths more than put in the the grinding work it takes to do a case well.  I’m not putting down the profession as a whole, because there are a lot of lawyers who taught me who’ve worked harder than me every day of their careers.  These are the backbone of our legal system.  I try my best to emulate them, and on my best days I do, and I can honestly say that I try to make each day my best day.  I feel more fulfilled in work when I do; I feel like a fake on days I’m a slacker.  Fortunately, I feel fulfilled more often than I feel like a slacker.  I hope to continue this trend.

The high-profile cases I’ve worked on–the “Elizabeth Smart” case, the same-sex marriage case, the SB 54 case, the WOTUS cases, the “Sister Wives” case (and pending cases I can’t discuss for ethics reasons)–took their toll on me and the impact they have had on me is the lesson they taught: that legal work done properly is hard work, and that our justice system doesn’t work properly unless people are willing to put in hard work.  In fact, I sometimes question if it “works” even with hard work.  Such cases can be rewarding, but they also require dedication and some sacrifice.  They often leave a special perspective for those who live through them daily.  High-Profile cases take on a life of their own, and people lose sight about what is actually accomplished in them.  Depending on one’s perspective, this can be very much or very little.  With most of the cases I mentioned both very much and very little was practically accomplished.  From my perspective, I believe that many who are satisfied with the outcomes of those cases might question why.  For instance, on the first case, while many in the community might feel vindication and a sense of justice–perhaps rightly so, I’d also say that as a practical matter at tremendous cost we moved a dangerous but mentally ill person from a lifetime in the prison wing of a state mental hospital to the same lifetime in federal prison where he likely has better daily living conditions but remains one of our country’s large population of incarcerated and untreated mentally ill.  The results are predictable and repetitive stories whose theme of strength and redemption seems to repeat to convince itself.  And the madman stays incarcerated, untreated and comfortably hated rather than confronted.  And with the polygamy case, people still talk about “free choice among consenting adults” when there is actual human trafficking of young woman throughout the state and across state lines, a fact that no one will look at, and we simply pretend that that issue is not there and feel more comfortable talking about consenting adults in situations where the possibility of actual consent is more often than not a farce or compromised.  One could–I could at least–make similar observations about all of the cases I quickly listed–and others.  But perhaps people get from the justice system what they want: a sense of vindication; a sense of recognition; a feeling of righteous indignation; a sense of closure.  I sometimes wonder whether as humans we ask more out of our justice system than it can be expected to deliver, and that in doing so we put our energies into focusing on the courtroom proceedings when we could more productively use our energies in political or volunteering activities that could actually immediately effect positive human change, which we might find more fulfilling than complaining about how we feel about a given case and its outcome.  At times I wonder if our judicial system is the scapegoat for our political and moral inaction, as when we say that the Supreme Court must answer a civil rights question rather than putting our boots on the ground, talking to our neighbors and convincing them that our constitution may be in need of amendment.

At least that’s one lawyer’s perspective.

Q: Outside of work, tell us about something interesting that you like to do?

A: I like to travel with my family. We go to beaches, museums, cities and natural wonders.  This brings me pleasure.  I get the requisite human need for a sense of awe by looking at the ocean, seeing clouds move by when I hike, watching shadows move across rock in the desert, witnessing quiet snowfall, hearing kids laughing in a park.  For better or worse, when I do so I also often recall the clients I’ve represented who can’t do the same–that is the great reason our constitution says we can’t deprive someone of liberty without due process.  My sense is that we don’t consider that very directly in the profession or out.  I find that a sad thing.  I turn to those things I listed that cause awe to remind myself that I don’t control outcomes and that the experience of the universe as awe–which is how I experience what I call God–provides a sense of solace and balance in the face of loss perceived.

Parker Douglas and his wife Ruth.

Because I’m curious (and maybe easily distracted) by nature, I also read incessantly, and average two to three books a week, and have done so since I was in my late teens.  It’s in my DNA and something that the late Judge Boyce and I used to share and kid each other about.  I also love the water.  Our family is at the beach as much as we are able during the summers, and I love to fish and be out on boats, though I’ve had precious little of that lately.  We collect shells and our house is filled with a pretty enormous shell collection we’ve compiled over the years.  I also love live theater, especially Shakespeare productions, and all kinds of music–Mississippi John Hurt, Iggy Pop, the Pogues, the Pretenders, Bach, Wagner, John Coltrane, Stan Getz, Paul Desmond, Dave Brubeck, Bob Dylan, Blind Faith, Led Zepplin.  I grew up around Los Angeles in the 1980s and still enjoy the music: X, the Plimsouls, Rain Parade, the Bangles, The Three O’Clock, Los Lobos.

I used to be a woodworker.  I’d like to be one again.  And I’m teaching myself how to play the banjo.

 

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