November 16th, 2023ACLU of MichiganMichigan

Phil Mayor

Participant NameParticipant InitialsDescription (Role/Job)
Phil MayorPMACLU of Michigan
Eireann O'GradyEOVolunteer Interviewer

EO 00:00

This should be working now. Great. So hi, my name is Eireann. I'm a law student at UCLA and currently I am the coordinator for the oral history project. So before I start, I just want to read this to you briefly: I want to start by explaining how we plan to use the conversation we're about to have our conversation is not legally privileged, and we will not keep that you say confidential. We plan to make transcripts of our interviews available for use by future researchers and the general public and portions may be posted online, or discussed in posts on our website or other published writing. I want our conversation to flow freely. And I realize that you may discuss a sensitive topic or mention a piece of information that you later realize you would like withheld. If you request it now, at the end of the interview, or later on after further reflection, we are happy for you to review the transcript of our conversation before it is made public and redact any portions you deem necessary from the transcript and the recording. I realized that what I just read contradicted what I told you a few minutes ago, what I told you a few minutes ago, was my knowledge as the coordinator of the oral history project, not in a volunteer capacity. So this is what we're having our interviewers read, I happen to know because I'm on the other end that this is not what we're gonna do [referring to making interview recordings public]. You can afterwards say what you would and would not like your interview to be included. If that is okay?

PM 01:23

Sorry, I understand that that's extra. But what you just read me that. Upon reviewing the transcript, I could redact or eliminate anything that I'm further I didn't want in the transcript of that correct?

EO 01:33

I just realized at the beginning, I had said that we might use it in a blog post. And I don't believe that we will be doing that, so I'm just saying…

PM 01:40


EO 01:41

Yeah, I just wanted to explain that difference. Okay, um, like I said, my name is Eireann O'Grady and I’m a 3L at UCLA, I volunteer with the team. And now I'm coordinating the oral history project. If you want to just jump in and introduce yourself and where you work, and where in the country you work, and what they look for?

PM 01:58

Sure. Phil Mayor, senior staff attorney at the ACLU of Michigan.

EO 02:04

Great, and were you working there for it before March of 2020?

PM 02:10

I was that's where I was when the pandemic struck.

EO 02:13

Okay, and how long have you worked there?

PM 02:15

I have worked at the ACLU since 2019…? Yeah, since early 2019.

EO 02:26

And what do you do at the ACLU?

PM 02:30

I'm a senior staff attorney. I litigate across all of the ACLU issue areas, but do tend to have something of a focus on criminal legal system reform issues.

EO 02:40

Got it, okay. So you’re not on one specific team with the ACLU. You're kind of [gestures umbrella – entailing broadly]

PM 02:46

I am not.

EO 02:47

What kind of work did you do with incarcerated people during the pandemic?

PM 02:55

I was lead counsel in a class action lawsuit in Oakland County, Michigan against the Oakland County Jail for its failure to keep people safe from COVID-19. I co-counseled in that case with the Advancement Project, Civil Rights, Corps, with the law firm ‘Pit McGhee’, here in Michigan with the law firm of ‘LaRene and Krieger’, here in Michigan.

EO 03:25

Okay and has that case had an outcome yet? Or is it still kind of stuck in the courts?

PM 03:31

It has an outcome. We were pretty early on the curve of filing these lawsuits and we're actually the the first federal district court case that I am aware of, for a judge to order, to indicate in an order that she would be inclined to order releases of state held jail prisoners. We got the order on the preliminary injunction and TRO request in June of 2020. The jail immediately took it up to the Sixth Circuit. At the Sixth Circuit, the jail sought a stay of Judge Parker, that's the district court judge's order, and Sixth Circuit is a very conservative circuit. So you know, you always know that this is going to be hard to defend a win on an issue like this there. But we survived the stay motion by a two to one vote. And about a week later the jail filed a renewed stay application. Which is not really something I would have recognized as formally a thing that you can file. For reasons we do not know, one of the two judges who voted with us on the first stay application, who was nominated by a Republican and was senior, recused and was replaced with a new judge, a Trump appointee. And the newly constituted panel granted the stay and after briefing on the merits proceeded to rule in favor of the jail on the merits and hold that we had not shown a likelihood of success on our on our constitutional claims. And remanded back to the District Court. At that point, further litigation ensued. The jail filed a renewed like motion to dismiss, seemingly believing that prevailing on a preliminary injunction means that you've completely prevailed on the merits, and seeking to have the case thrown out. The district judge correctly and understandably, rejected that request, ordered discovery to continue. And then we negotiated a settlement in spring and early summer of 2021, which was just as vaccines were becoming available. And that settlement included an aggressive vaccination campaign by the jail, which I have to say, in many ways did not go quite the way we had hoped and foreseen. And, and then the federal courts jurisdiction over that settlement expired in November of 2021. So since that time, our litigation has essentially been over and been fallow since November of 2021.

EO 06:39

Oh, that was… I have a few follow up questions. First, you said something about the vaccine mandate that it did not go as planned. Could you expand about that a little bit?

PM 06:51

Yeah. You know, so there's a few things. First of all, you know, at when we were moving into settlement mode, you know, just getting the you know, the jail was not offering vaccines, this was early on, when vaccines were still rare and hard to get, and, and moving the jail towards promptly offering them was itself a significant consideration at the time. We underestimated the amount of vaccine, you know, rejection that that would be experienced. But I will say we anticipated a fair amount of it. And in fact, we built into the settlement, that the jail would provide one-on-one counseling about vaccines to people. And we provided that they would show a video that we produced that we put quite a lot of time into creating that included, you know, public health professionals from the community and included formerly incarcerated people. And the jail was to show that video to people who were inclined not to take the vaccine. Instead, what the jail did is, blared the video about six times a day extremely loudly interrupting people's programming, putting it on all of the jail TVs, essentially weaponizing it. The public service that we had created by creating this video, in what it's hard for me to believe is anything other than vindictive manner, was used to essentially use the video to turn people against us and we then had to fight hard to get the jail to stop showing our videos so frequently, which, you know, puts us in an awkward position, right? We're saying we want we want everybody inside the jail who wants one to get a vaccine, and we want them to have good information so they can make a responsible decision for themselves. And therefore, we want you to stop showing the informational video we made. And that all made sense in context. You know, we were receiving phone calls and emails from the class we represented, saying this is I mean, literally, they were comparing it to Guantanamo. And you know, sort of saying like, this is like torture, we're being like, blared with this video. We're sick and tired of it, we have it memorized. It's being used, you know, like to interrupt our programming, it's really loud. And, like I said, we had to fight to claw back to have the video shown less, which we ultimately did do without needing to get a court order. But I can't believe that I had to nearly threatened to go to court to get a jail to stop misusing and weaponizing this video we've created I mean, I guess I shouldn't be surprised. But

EO 09:27

That is incredibly shocking to me. I was on the data project team of the COVID behind bars. And so we tracked a lot of the vaccine availability, and we heard from a lot of places that there's a lot of rejection. Did you talk to any of the incarcerated people about why they were rejecting the vaccine? Was it the same reasons that people cite outside?

PM 09:55

Yeah. I mean, without breaching any privilege, you know, I'd say in my conversations with incarcerated people it was it was pretty similar to the reasons you hear outside, maybe a little less politicized, actually. You know, it. I heard that one. I mean, one problem we had at our jail is, is they were offering Johnson and Johnson.

EO 11:13


PM 11:14

So a lot of people were very suspicious of Johnson and Johnson. The jail was insisting on j&j. (A) because you know, they had plenty of supplies of it, because, you know, it was people weren't taking it in, in the larger public at the same pace. And (B) because it didn't require as much refrigeration. So it was easier for them to have an administer. And (C) in this, I'm not the first reason I think is bad. The second reason I think is not good, but at least I get the third, I actually do get is because j&j was a single dose, and you're dealing with a transient jail population. They were like, We can stick people with one dose of this and, you know, like, have it be effective faster. And so for, for some good reasons, and some not so good reasons. They were insisting on j&j. And people were suspicious of j&j for all of the reasons that j&j has, you know, what was in the news for, you know, the blood clot concerns. And we addressed that in our video, you know, we addressed that with every doctor we spoke to are all like, the best vaccine is the one that's available to you. But certainly, there was a lot. And then, you know, I would say on top of that, there was distrust of the jail and their medical staff and justly so because the jail and their medical staff serve the incarcerated people of Oakland County extremely poorly.

EO 12:31

Yeah, I don't I don't blame them for that distress, necessarily. Um, I had another follow up question. How did, I understand very little about class action law, but I understand that it's a very long process typically. When you're describing the lawsuit in its entirety, there was so many ups and downs, how did that impact you all, as people at the ACLU in on it, and some of your clients that were on the inside? Kind of probably getting updates from you?

PM 13:03

Yeah. I mean, I'm, at a personal level, this is the most sort of secondary trauma I've had from any, any legal work I've ever done and it's not even a close call. I mean, you know, this is emergency litigation done on a TRO/PI [temporary restraining order/preliminary injunction] basis. When we won our PI, originally, Judge Parker ordered us to start preparing bail applications for like the first round of like, 100 people she was going to consider. So this was, you know, while everybody else was kicking up their feet in COVID land and like having nothing to do at work, you know, me and my colleagues were working around the clock on this thing that, you know, justly and rightly felt completely urgent, it felt and was, you know, life saving work. And, you know, when you're dealing with your clients, your clients, it's, it's simultaneously easy and hard to remember exactly how scared we all were in the, in the spring of 2020, and not knowing how bad this thing could get. And, you know, we were dealing with class members who were basically held in like a dungeon. And, you know, some of some of our class members were threatened with or actually moved to places with higher COVID transmission rates within the jail in retaliation for protesting about the COVID related conditions in the jail. So you know, you're dealing with medical, most of your most of the class is medically vulnerable, and, you know, they are rightly concerned that they could die. And meanwhile, you know, the people who guard them are stressed, they're stressed. And so, you know, you're and when you litigate on behalf of a jail class, you know, they would they would call when they could. And so, in addition to needing to do the quite high level and voluminous legal work that needed to be done, you know, the phone was just ringing off the hook. And when it would ring, you wouldn't even know is this actually somebody I need to speak with? Or is this just another person I haven't spoken with yet that might very well have something important to say, but that I don't have the time to deal with. And it was, you know, all hours, you know, I have the number memorized from the Oakland County Jail and it like it's almost haunting every time my phone rings. Because, you know, it's sort of like flashback to phone rings on that number to what it felt like those getting those calls during that time. And yes, the impact of however stressful that impact was for me, and our team. You know, the terror of that environment for the class was palpable, and intense. And, you know, again, most of our clients are medically vulnerable. I mean, the amount of medically vulnerable people in a jail is just off the charts. And, you know, they were, they were scared for their lives, our lead plaintiff, Jamal Cameron, at first he was in a relatively nice area of the jail. And then he raised concerns about being made to make food for other people to jail, because he was a trustee. They punished him by moving him into a holding cell where he slept on the floor without even a mattress next to like, people who were hacking up a lung and you know, it was like, it was openly retaliatory, and he was scared, and he deserved to be scared. But thankfully, he's, he's fine now. But yeah, it was intense.

EO 16:47

Yeah, that sounds in incredibly intense. I've just I've done a couple of these interviews, and a lot of the lawyers express that “it was very stressful and it was very emotional for me, but I got to go home at the end of the day, and like are the clients did not”? I don't know. It's just an interesting, consistent line through everyone's stories.

PM 17:07

Let's do this. To this day, I will never forget at our preliminary injunction hearing our lead plaintiff Jamal Cameron testify, and the jail which spent a week fighting us over getting an inspector into the jail because they said they couldn't possibly allow somebody from outside into the jail. When it came time for us to prepare for the PI I told the jail “Well, I'm going to need unlimited video access to prepare a client.” And they were like, “Oh, well, you can just come meet him in the jail.” Like, again, after they've literally just spent, like, expended quite a lot of paper and time and court resources, fighting us on allowing an inspector into the jail. They're like Phil Mayor, can just come waltzing into the jail to meet with his client, you know, essentially, like trying to expose me to risk to do it. We ultimately did, what we wound up doing is the jail is across the street from the courthouse. And so my client was brought, they cleared out, you know, the courthouse was obviously closed down, they opened a jury room for us. And my client was brought through the tunnel. And we had, you know, n95, masks, and we sat at opposite sides of the jury table, probably 20 feet apart from each other to prepare. And he actually wound up testifying from that same room. So we were literally sitting in the same room. I'm examining my client, not looking at him looking at the screen, I brought two of my computers in one for him, one for me. And we're both wearing n95 masks, meanwhile, like the jail lawyer, and like the head of the jail are both like reclining in their conference room unmasked. And, and, and we're conducting this, you know, like, just just just felt it felt.. [chuckles] Intense is not even a word for it.

EO 18:51

Yeah, so many levels of like, division between actually just talking to someone. Um, now a little bit more about client communication. Did you, I know that I don't know, if you've worked with people in this jail before the pandemic, but before, would you primarily talk to people over the phone? Or did you use in person visits, and how did communication change as the pandemic hit?

PM 19:14

I have not really, I had not previously done any litigation or significant client communication with this jail. So you know, figuring that out and getting that up and running was definitely a major logistical hurdle for us. And the challenges of answering those phone calls and figuring out how to divide that up was also another challenge. What we ultimately wound up doing is we had while it transitioned as we went into the summer, once once Judge Parker issued her initial order on the PI, but we set up google voice phone numbers so that we could share them across multiple people's phones so that when a jail call would come in, there were multiple people who can answer it. We had three Google voice calls going on. We probably we had to pay for all of those calls. We probably to this day, I am ashamed that my expense reports probably reflect like a 1,000 or what maybe more than that dollars, paid over to these exploitative prison phone services, jail phone services. But so we had those up and going. And then when Judge Parker ordered us to start preparing bail applications, we really had to move into high gear. So at that point, luckily, it was right as summer interns were coming in to our offices. So all of our offices signed up summer interns and got them on the Google Voice numbers. And so we had like five or six people answering calls with just like, round the clock. And then the jail also has an email client that I used heavily and still use to communicate with, with class members.

EO 20:50

Got it? Okay. Um, did your did the jail that you were working with have like video conferencing? Or was that not an option?

PM 20:58

They had video conferencing, but we mostly didn’t use it for a number of logistical reasons. That was, first of all, the, we were not at all convinced that it was confidential. And, and secondly, it has to be scheduled in these like 15 minute gaps, and it just was not a, it was not the most viable way for us to proceed the phone calls and, and the, and the emails tended to work better for us for a number of reasons.

EO 21:24

Got it. Okay, um, and then kind of to switch gears a little bit. A couple of times, you've said things about kind of individual actors in the system. Were you particularly surprised? Or did it kind of confirm your thought about people that work in jails or work in courts? Either actions during the pandemic? I can rephrase that, if that didn't make sense.

PM 21:51

No, it makes sense. You know, I mean, while doing media during the, during the heart of the case, you know, it was sort of a go-to refrain for me to say that, you know, COVID has just exposed the pathologies that those of us who are in the system already already know are there. And I think that's right. I mean, jails are overcrowded, they are, they are unhealthy. They are, you know, staffed by generally quite inferior medical services. They do not demonstrate sincere, caring or compassion for the people who were in their legal care. And, you know, they have a strong tendency to find all sorts of subtle ways to retaliate against anybody who tries to make the situation better. And certainly, all of those things were on open display, during, during this case, and, frankly, still are.

And, you know, with respect to courts, you know, I mean, I have to say, our district judge did a pretty heroic job, you know, she, in, in the midst of, you know, this scary thing going on, she's holding the hearing, she should be holding and found ways to, you know, now we all know how to do, you know, court by zoom, but we didn't know how to do court by zoom, then, you know, we were building the plane while we flew it. And we had a thoughtful and careful judge who listened to the evidence and paid attention. You know, I'm, I am less impressed with what happened on appeal. I mean, not just the fact of losing, but I do not, you know, procedurally, the way that we lost with the panel composition changing. And, you know, from day one to day two, getting a different result, is obviously deeply frustrating, and does not leave one with a feeling of justice. In addition, you know, the decision is is not I think, a careful one and does not, I think, give proper deference to the fact finding done by the district court judge, as, as was established, I think quite clearly in the dissent that was written by the third member of the panel, that then Chief Judge. But I can't say that much of that changed my attitude.

EO 24:31

Yes, so it kind of confirmed your ideas about people.

PM 24:35

I would say this. Yes.

EO 24:41

Can you expand a little bit more about the people that specifically worked in the jail? Was there any conversation about trying to find common interest? I know in some states, there were some talks of collaborations between like the prison or the jail staff and then the jail inmates because they both were confronting the same disease? Or was that kind of…

PM 25:03

Yeah, I mean, we, we did not have a situation in which we made any significant headway with, you know, the guards union or something like that there was an individual guard who was upset about what had happened, who actually, he, like, filed a weird letter on CMECF, like, sent a letter to the judge that the judge posted to CMECF. And then the judge pulled down on upon motion of, of the jail. But nothing, nothing really came of that of that incident. It was it was it was a weird incident, I had mostly forgotten about it until we were talking about it.

EO 25:44

Um, and then, sorry, I'm kind of looking at our general questions. You mentioned that you had worked in media and use that line about it just kind of exposed the problems that were in jails? How did you utilize media? And like, what was kind of your thought process into going to media or not?

PM 26:07

Yeah, I mean, um, you know, as, as an ACLU lawyer, you know, even before we brought this lawsuit I had been doing, I had been doing work for years around bail reform in Michigan. And obviously, you know, getting people out on bail became a urgent and immediate issue, you know, the second COVID hit. And so I was doing quite a lot of work on bail cases, but also media appearances about, you know, jail and bail and COVID. And that was from sort of, like, even before we got into this case, you know, when we, when we got into this case, you know, we were probably there's not many jails, anywhere in the country that didn't deserve a lawsuit like this. You know, I would say that part of the reason that we filed one against Oakland County, is, is that there are grassroots groups who are active in trying to reform the penal and criminal legal system in Oakland County, and they were a source of, you know, sort of integrated advocacy for us to be able to work with them. And so, you know, our media, you know, it's a big deal when you file a class action lawsuit against a jail. So, you know, media were interested to cover the case. And certainly, you know, making the public aware of when, when they're worrying about, you know, their own families, making them aware of how scary and bad things are in jail is, you know, just an important piece of the work. So, I don't know how responsive that is to your question. But, you know, essentially, we, we use media in the sense that, you know, we put out a press release when he filed our lawsuit and looked for journalist who wanted to cover it and took their interviews.

EO 28:14

Great. Um, I can I got, I just forgot exactly what I was about to say. Oh, what I was gonna say is, I remember thinking that maybe the tiniest silver lining of the pandemic would be kind of an equalizing feeling among the public, and people that are incarcerated. And that maybe it would lead to a larger reform, maybe, about appreciation for outside space and ability to social distance and the importance of feeling safe at home. Did you have any of those feelings? Did those feelings ever get squashed? Have you seen any actual… [Cuts off here]

PM 28:56

I remember, I remember having those same feelings, too. I mean, it's part of when I say that one of my, you know, go to lines when speaking to media was to talk about how, you know, this is just exposing pathologies that have long been there. You know, there was this brief moment early in the pandemic, when it looked like actually people of privilege were getting hit harder by the pandemic, and where, you know, there was, like, some hope that like, maybe some lessons could be learned here. I, I don't know that I mean, roundabout, roundabout a year into the pandemic, I, you know, observed both, you know, journalism fatigue in the sense that they weren't interested in covering these issues, further. Political fatigue in the sense that we were not getting the same sort of responsiveness, you know, from political actors. As you know, we looked at because, you know, I represented people in the Oakland County Jail, but, you know, was engaged in advocacy in other spaces and around you know, reforms in the prisons, the Michigan prison system as well. And certainly saw that fatigue kicking in, you know, with with political actors as well. So I don't know that I'm left more optimistic that there was a moment of optimism or sort of like, like you said, Silver Lining optimism, that, you know, maybe we can learn something from this I'm, I'm less clear that the lessons that I think would be valuable to be learned from this have in fact, been learned.

EO 30:25

Yeah. I thought about that, specifically with healthcare in prisons and jails. But it doesn't seem like that's any better, unfortunately. And so kind of from, like, from, from your roles, specifically, has your idea of what being a lawyer or an advocate changed at all? Are there any practices that you developed during the pandemic that might stick with you past the pandemic?

PM 30:56

Say that again.

EO 31:00

Basically, like, have you changed at all as a lawyer or an advocate, because of the pandemic? And are there-- anything like I think some people have talked about having better boundaries, where it's like, trying to, it's impossible to do in a lot of cases, but trying to cut yourself off and spend time with your family at the end of the day?

PM 31:22

I mean, I would, I would say, if anything, the boundaries have gotten worse. I mean, they were better from the first phase of the pandemic, where, but the dissolution of homework, or have work in the office, and the like, line of working at home, has done a number on that for all of us. I mean, I will say it made me even more angry at jails and prisons, which, you know, I didn't start loving the institutions. But, I mean, seeing in a very firsthand way, all of the subtle and insidious, not to mention the blunt and brutal things that that happen. In a in a jail, sort of firsthand, and, you know, being as day to day hearing, hearing things, as I said, I didn't start thinking much about jails and prisons, thinking very highly of them anyways, but certainly, it's, um, it's, it's reinforced my belief that there can't possibly be anything useful that is happening in these institutions. I don't know if I have anything else to give you. I mean, sure. COVID has changed me, it's changed us all. But I'm not sure in ways that are responsive to your project here.

EO 32:53

Got it, got it. Yeah. Um, and the point of this project is just to kind of get people's accounts down while they're still somewhat fresh in people's memories. And so anything is helpful, um, I guess I, you had talked earlier about vaccine rejection, did COVID denial and kind of like, the “masks are bad”, “Vaccines are poison” I know it affected people in the jail, but we're staff members like that. Did you fight out of resistance in that sense?

PM 33:26

Oh, yeah, for sure. I mean, we, I was repeatedly being contacted by and I never encountered that type of militant vaccine hesitancy, and the people I spoke to, which is almost certainly some sampling error about the type of people who actually were even willing to talk to their lawyer about it. And but no, absolutely, we were getting reports, which I believe to be credible from people inside, that the guards were not only failing to wear masks with regularity. But were in fact like trash talking the vaccine, which you know, when people are getting like bad information already in like the rumor intensive climate of a closed system, like a jail for, you know, deputies to be running around spouting this garbage was I mean, it's hard to it's hard to know how much that impacted the uptake rates that we saw, but it's I certainly no, that there were there were clients of mine who believed that there were people in their cell who you know, were talked out of vaccines by guards who don't believe in them.

EO 34:41

Wow, and did that influence at all the kind of your case specifically like in courtrooms like was there any doubt or denial in those settings? Either from the judge or from staff or from the lawyers on the other side?

PM 34:59

Yeah, Uh, I would I would say that I mean, the testimony from the jail staff at our preliminary injunction do not suggest that they were current on their science at the time, and did not take the threat as seriously as they should. There was not that we sort of saw on the official court record any like, out and out, like vaccine rejection from the leadership. And, you know, like I said, the jail did, you know, agree to give out vaccines as part of the settlement, but then they did these things to undermine it. I think those things came from a place of anger at loss of control rather than specific vaccine rejection by jail leadership, but that's speculation.

EO 36:00

Yeah, yeah.. We saw some of that in California, as well. Um, and then again, to take another that, and I lost my train of thought one more time, I apologize.

PM 36:21

You're fine, take your time.

EO 36:23

Oh, god, my brain, I just had this thought? Um, sorry. Why, okay, anyway, um, oh, here's what I was gonna say. The ACLU I know is they have cases, but they also do I assume they do some political advocacy. Did you see any movement politically in the state or federally about COVID that that you found helpful, or hurtful or useless? or anything like that?

PM 36:58

Yeah, um, you know, we are a purple state, with a Democratic governor and a Republican legislative majority, one of few divided government states. So we saw a lot of this play out in in real time and in ways that were, were certainly directly relevant here in Michigan. We, the Michigan prison system saw, I believe the data is the second highest death rates of any state prison system. And, you know, I certainly believe that more could have been done through executive order to address that situation, and was not done. Interestingly, our governor did issue a emergency order on jails that made it much easier to release people from jails other than that required the local jurisdictions to then do some work themselves. So it sort of took the political accountability, you know, and, and spread it out. So I think there's certainly much, much more that could have been done. And certainly we were, you know, engaged in trying to encourage that to happen. Then, I mean, another dynamic we had is, is that our legislature sued our governor over her use of her emergency powers, and actually prevailed in our state Supreme Court and striking down one of the primary sources of emergency power that the governor had used. So once like, once, things like that happened, you know, that makes our advocacy going out and trying to, you know, sort of see things accomplished through emergency order that much harder and, you know, urging things to be done by a, by, by emergency action and executive order is already a terrain on which, you know, an organization like the ACLU needs to tread carefully, because, you know, we do believe in separation of powers, and that, you know, powerful unbounded executive authority is a threat to liberty. So, you know, those are not questions that I'm that I'm, I'm conflicted about in the first place.

EO 39:14

Yeah, absolutely. Um, why do you think Michigan had such a high death rate for COVID? In prison in jails? Do you have any idea?

PM 39:25

We have, we have a very old jail prison population, in part because of decades of extraordinarily draconian life without parole rules. So we've got a lot of people serving up sentences who have no place at their age being in in prison in the first place, but you know, makes them medically vulnerable. And beyond that, it's, you know, not being there. I mean, certainly there were stories told of people being transferred you know, when they hadn't been properly quarantined and spread from facility to facility. And I mean, I mean, we heard countless stories of things going bad in ways that they should not be. It's it's hard to weigh that against what was going on and other states because you know, I'm I work for the ACLU of Michigan and not for the ACLU of Montana, or whatever. So, you know, I'm not getting those calls and hearing what's going wrong and all the other systems. And I mean, I would like to see a study or post mortem to understand what drove those rates in Michigan. But yeah, I can't put a I can't put a finger on it. Other than that, I know, we have a somewhat aging population. But I don't know how that compares. I mean, I haven't actually sat down and looked at a data chart to say, like, aging population. So even that is a bit speculative.

EO 40:49

Yeah, that would be really, I'd be really curious to see kind of an interactive map about those different factors on that lead to adverse outcomes from COVID. Um, so we have a minutes left, and I have kind of a conclusion, bit to read too you. So my final question, before I ask if you want to share anything else, is if you could go back to February, March, April of 2020 and like, give yourself advice? Or if you could give your give advice to future lawyers that are they're currently working in this pandemic, or will work in another situation that somewhat similar? Would you have anything to say to those people?

PM 41:37

First of all, I would tell them to take it easy on themselves, because there's going to be an emotionally damaging thing that you're about to do, even if it's even if it's a good fight. I think I would tell them to spend a lot of time upfront thinking about their logistics, how they're going to communicate with their clients, establishing you know, confidential lines and figuring out how that workflow is gonna work between your team because building that plane while you fly it is really hard in the in the pressure of emergency litigation.

EO 42:13


PM 42:16

I don't you know, I mean, there are I can't control the composition of my panels and the federal court, there are certainly things I would have liked to see go differently. There, you know, I, I don't think there was necessarily a a better way that, you know, our case should have been made. Certainly, if I could go back, I would. I would, I would do a lot more to design and specify the, the vaccine hesitancy program that I described earlier, I think, you know, kind of trusting the jail to handle that in good faith was a mistake. And, you know, it seemed to us at the time that they actually cared about getting shots into arms. And I think at some level they did they just maybe cared about being spiteful more And so I, I, I would, I would do more to turn them in on that in the first instance. And, you know, part of what we traded off in, in those settlement talks is, is the end date of the agreement, and the Federal Court losing its jurisdiction in fall of 2021. And that was, you know, in part premised on hopes that vaccines were going to, you know, make more of an end to the to the pandemic than they did. So, you know, after after the, after the Sixth Circuit's decision, we didn't, you know, suffer from a surfeit of leverage. So, I don't know, what would have been available there. But I think I might think about that problem differently today than we did in the spring of 2021. When we're making those decisions, yeah. On behalf of the class.

EO 44:13

Yeah. Every update with COVID treatment and vaccines, it seems like okay, this is over. And then a year later, you're like, what, there's another surge. Um, is there anything else you want to share before I kind of read the end blurb about what you've learned?

PM 44:31

I don't think so, I mean, I guess I just want to I want to take a moment to acknowledge since this is in an oral history somewhere, my co-counsel, because I did not do this by any means alone. Syeda Davidson and Dan Korobkin at the ACLU of Michigan Krithika Santhanam, my, my fellow co counsel at Advancement Project and then when she left, Marcus Banks from the Advancement Project, Thomas Harvey from the Advancement Project, Carrie McGhee and, and Kevin Carlson from Pitt McGee, my co lead counsel Alex Twining from civil rights Corp. And Allison Krieger from LaRene and Krieger all in their own ways, you know, important legal help and an emotional help and, and couldn't have done it without without any of them. And if I've forgotten anybody, I know I've not named all of the interns who are involved.

EO 45:51

Yeah, if you think of other people to add to we can add it to the transcript with a note. Um, yeah, I think that collaboration in this time was maybe the only way anyone survived this one.

So first, I just want to say thank you for taking your time to be interviewed for this. I really appreciate your insight into all of this. And I think that your addition to our kind of archive will be great. I am not sure because it's all volunteer based, how long it'll take to get you the transcript, but I'll email it to you. And you can take as much time to edit it, however you please. And then if you think of anything before or between now and when I send it to you can send me an email and I'll strike it on the transcript. And then do you have any questions like clarifying questions? [shakes head no] Okay, well then that's all for me. Thanks again I'm gonna stay on so I can end the recording and save it so you can leave the room whenever you're ready.

PM 47:00

All right, thanks for your efforts to capture this dark but also kind of inspiring moment for the response it propagated.

EO 47:08

Yeah, thank you so much for taking the time out of your day. Have a good one.

PM 47:10

My pleasure.