Blagojevich: A Bold Appointment

Will Roland W. Burris be sworn is as a Senator for the State of Illinois? He should be. The governor of his state has appointed him to fill the seat vacated by president-elect Barack Obama. The law gives to the governor the right to make this appointment.

Of course, Mr. Burris, a career Illinois politician of unblemished reputation, was appointed by none other thant Governor Rod Blagojevich, a man just about every righteous American seems these days to hate. Why the man tried to sell Obama's vacant Senate seat to the highest bidder, didn't he?

Those are the allegations of the United States Attorney's Office, which has presented the evidence against the governor to a secret grand jury and secured his indictment. What's more, the same U.S. Attorney's Office has taken its case against Blagojevich to the press. Secret recordings have been made public, and U.S. Attorney Patrick Fitzgerald is egging on efforts of Illinois lawmakers to impeach the governor. It is a powerful lynch mob.

I do not know whether the governor did anything wrong. I do know that he is presumed innocent of the charges against him. He has yet to confront his accusers and tell his side of the story. Perhaps his defense will be an indictment of the status quo: "Money talks in electoral politics; what I did differs in degree but not in kind from what is done in each and every race for elective office." Or perhaps he will claim entrapment. Whatever the defense, he has a right to make it before he is strung up from a lamp post and left to swing in the wind.

Senate Democrats and President Obama have already denounced the appointment of Burris, yet no one can speak a foul word of him other than he was appointed by Blagojevich. Burris is qualified by age, citizenship and residency for the position. Attempts to bar him from sitting should fail as a matter of law, a lesson we already learned when Congress tried to bar Adam Clayton Powell from sitting in the 1960s.

What terrifies about the reaction to this appointment is the ease with which we abandon the rule of law for something akin to mob passion. Sure, Blagojevich governs under a cloud. His effectiveness as governor is compromised. He cannot lead. Whether these are grounds for impeachment is a political question best left to the Illinois legislature. A more gracious man might have stepped aside while he addressed the allegations. But grace is not required.

The German sociologist Max Weber taught a century ago that there are different ways in which societies transform raw power into legitimate authority. Rational political systems have transparent rules and norms for doing so. By contrast, charismatic systems rely upon the passion inspired by powerful leaders, and, perhaps, events. The problem with charisma is that is can lead just about anywhere. Hence, in a political system such as ours, we erect checks and balances to channel passions; we enact rights to place limits on what can be done to even those accused of the worst crimes imaginable. In the Blogojevich case, we appear willing to ignore the requirements of law merely to serve a furious sense of self-righteousness.

The question no one seems to be asking just now is whether Blagojevich will ever be able to get a fair trial. Hasn't the government now so fouled the pool of potential jurors with its unnecessary and unjustifiable pre-trial publicity that a fair trial is impossible? Will these charges be dismissed?

Such a result is unthinkable in the heat of the moment. We all hate the corrupt pol who has somehow managed to throw manure onto Obama's rose-petal covered procession to the White House. But I would be far more comforted by a dismissal of the charges as a sanction against abuse of prosecutorial authority than I would be by summary execution of Blagojevich.

Blogojevich is presumed innocent. If he cannot govern, he should be impeached. But until there is either a finding of guilt or a vote to remove him from office he is, like or not, governor of Illinois. As a matter of law, he has the right to appoint Obama's replacement.

Hard Times Fell A Woman Of Goodwill

Diane Smith will be leaving WTIC-1080 tomorrow. I just learned this in an email she sent. She's had to keep this under wraps until the last minute. The reason for her departure? Hard times. The station cannot afford to keep her, apparently.

Ms. Smith is a fixture in Connecticut broadcasting. She has the rare gift of making everyone -- even me -- feel welcome on the air. She also has a nose for stories about ordinary people doing good things. She is the opposite of a cynic. It is truly sad that she is leaving radio.

Here's an excerpt from her email.

"After 9 years on the air at WTIC-AM NewsTalk 1080, I will sign off as co-host of “Mornings with Ray and Diane” at 10am on 12/31/08....

This is a difficult time in the broadcasting business and in our nation’s economy and I understand difficult financial decisions are being made by owners of radio stations throughout the country. WTIC General Manager Suzanne McDonald and Operations Manager Steve Salhany are exploring ways I might continue as part of the NewsTalk 1080 family.

As for what’s next, I will be hosting a new weekly series called Connecticut on the Road with Connecticut Public Television in 2009. The series is slated to air in late spring. I plan to continue projects based on Positively Connecticut which I originated during the 16 years I anchored and reported the news at WTNH-TV. Positively Connecticut has spawned four books, published by the Globe Pequot Press, and I am working on a fifth. I have several other projects underway through my company Diane Smith Media. Most of all, I hope to find new ways to continue my unofficial role as a goodwill ambassador for Connecticut."

I wish her every success.

Blagojevich: Charisma Kills

Repeat after me: Charisma kills. Sometimes it takes a life; more often it yields a willing suspension of belief. When overcome by a charismatic leader, we endow others with near mythic qualities. Charisma can make fools of us. It can rob us in the dead of night of things of great value.

Consider for a moment the prosecution of Illinois Gov. Rod Blagojevich. The governor is accused of trying to sell a vacant U.S. Senate seat to the highest bidder. We've heard his voice on tape, sounding like a surly thug looking to take care of Numero Uno.

His conduct was all the more jarring as the seat for sale was the one belonging to none other than Barack Obama, the new King Arthur, on his way to Washington for a second round of Camelot. Did John F. Kennedy break a religious barrier becoming the first Catholic to serve as president? Well, so, too does Obama break a barrier, in this case a more fundamental line, the color line. He is all hope for a better day. And so are we.

The contrast between Blagojevich and Obama is almost Manichean in intensity: good facing evil. We must expunge evil at all costs. Just days after the arrest of Blagojevich, Illinois' attorney general asked the state's Supreme Court to remove the governor from office as unfit. Where were the protests against this precipitous attempt to abuse the legal process? If Blagojevich cannot govern, that is a political question. The courts ought not to be conducting coups in response to allegations in federal indictments.

The Illinois legislature is now considering indictment of the governor. We're still punch drunk enough to want to rush to judgment. When Blagojevich stands his ground to fight, critics rail that he has lost his mind. I worry rather that it is we who have lost our bearings.

What has become of the presumption of innocence? Sure, the governor is on tape. Sure he said somethings that sound mighty incriminating. But tapes never tell the entire story. What was said before the recordings began? What was whispered before the "on" button was switched? What enemies set a perfect trap for a man they wanted to topple?

Barack Obama has been swept into office on a crest of hope. He is a spellbinding orator, a Black Everyman whose dream has become our reality. It is understandable that we sit back dazed, and suspend judgment, hoping, this once, that the gods will redeem their promise of redemption. This charismatic powerhouse promises to blur old distinctions and remake us anew. That is the gift of charisma, a transforming power to recast the very terms in which we conceive of the possible.

But charisma is invariably broken. Christ's cross, King's bullet, Kennedy's trip to Dallas. None of us are larger than life. And when dreams become nightmares lesser mortals find security in more mundane promises and procedures. The rule of law is such a source of mundane order.

Illinois is rushing headlong to judgment, trying to sweep the embarrassment of Blagojevich under a rug, the better to bask in Obama's rays of hope. But that is a mistake. The governor is within his rights to insist that he be tried by a jury before being found guilty. The rush to judgment in Illinois is the act of a righteous mob, the scariest sort of mob.

And who is the mob's ring leader? Why none other that Illinois' U.S. Attorney Patrick Fitzgerald. He has asked a federal court for permission to share secret grand jury material to the Illinois impeachment committee. Where is the outrage over this? When a defendant seeks such material he runs face first into a stone wall of privilege. Why is the accused in this case being crucified on a cross of hypocrisy?

Don't get me wrong, from afar, Blagojevich does not look appealing. But he will soon be gone or acquitted. What scares me more than a rogue governor is a rogue Government, fueled by the passions of folks willing to sacrifice procedural safeguards and the rule of law the better to protect the afterglow of a newly elected and charismatic man to the presidency.

Charisma kills, I tell you. It is killing now. And no few seem to notice.

Spence Redux? Another Trial Set For April

Rumors of Gerry Spence's retirement are, well, overstated, even if the rumors were started by Spence himself. After winning an acquittal of Geoffrey Fieger in Detroit earlier this year, Spence announced he was retiring. Well, it wasn't quite an announcement. He told jurors that at 80, he was a spend Spence. He was leaving the fray to others.

Not so fast, Gerry.

According to Oregon's SandyPost, the Wyoming trial lawyer is due in a Portland federal courthouse in April. This time he'll have two lawmen in his sights, Officer's William Bergin and David Willard. The two men are accused in a civil proceeding of having shot to death Fouad Kaady in 2005.

The defendants moved for summary judgment, attempting to persuade U.S. magistrate Judge Paul Papak that the uncontested facts were such that the shooting was justified or, in the alternative, that the officers should be granted immunity from suit because reasonable officers would believe the shooting justified. Papak rejected that contention last month.

The circumstances leading to the shooting death are, in fact, bizaare. Officers responded to a call in early Septmeber 2005 of a Gresham, Oregon businessman who reportedly saw a man dressed only in boxer shorts running away from a parking lot. When Kaady returned in his mother's car with a gas can, he could not find his pickup truck. Kaady had a can of gasoline with him, which ignited when he lit a cigarette in the car, setting him on fire and leading to several hit-and-run collisions. When his car crashed, Kaady attacked a man trying to assist him. Thereafter, police tried to restrain him, using a Taser, and, ultimately shooting him to death. There are cases like this in every jurisdiction: anxious officers face-to-face with the bizarre, often ending in death or serious injury.

Whether Spence actually appears at trial is an open question. Despite the trial lawyer's swagger and boast of not having lost a civil case in 40 years, this is a tough case. It was apparently filed by Michelle Burrows of Portland. Ms. Burrows is a graduate of the trial lawyer's college founded by Spence.

When reached for comment about the summary judgment ruling, Spence had nothing to say, fueling speculation that his appearance in the case had a certain Potemkin quality. It is not likely that the master has been involved in pre-trial preparation. Summary judgment motions have all the glamor and appeal of dental hygiene.

In most parts of the country, this would be a case on which the defendants would offer nothing by way of settlement. Police confront the bizarre daily, and there is plenty about the Kaady case that, from a distance, looks bizarre. Convincing a federal jury that the officers in this case shot a wounded man out of vengeance or spite is a tall order. Many jurors will forgive the officers a mistake, being persuaded that split seconds in tense and evolving circumstances are the only margin between life and death for a patrol officer.

Here's my bet: The defendants offer a nominal sum out of respect for Spence. Ms. Burrows grabs it to recover the litigation expenses to date. Kaady's family declares a victory of sorts, and the case is closed. But I am hoping to be proven wrong. I'd like to see what Spence can do with this fact pattern. He pulled Fieger from as hot a fire, and now the two are fast friends, lecturing together about how to beat the feds at their own game.

Mark your calendar: This April in Portland. Ringside seats.

How About New Horizon?

John Tirman has a great essay in the Winter 2009 edition of The American Scholar. We've a new president en route to the White House, but do we really have a new national myth, something to energize the country and focus the energies of a continent? Isn't it time for one?

It's not enough that Barack Obama is black. That only takes us so far. What's the fuss if we've all got an equal shot at a first-class seat if the plane is going down? We need something more than a new seating arrangment. We need a new vision. We need a dream capable of yielding focus. Why not a vision that transforms the day-to-day task of living into a personal challenge that can yield something of meaning to each American?

Frontiers have been an energizing theme in American politics. Frederick Jackson Turner worried about the closing of the American frontier in the 1890s. We struck a new deal in the face of a vast depression. We've set the conquest of outer space as a national goal. We even stared down the Soviets. What new challenge requires focus and commitment?

The environment is an obvious challenge. And it is one that each of us can address, whether it be through a commitment to recycling, a decision to walk rather than ride, or the purchase of energy-efficient appliances. Why not make that the centerpiece of the Obama administration?

As Tirman notes: "Meeting the environmental challenge requires more than colossal investment in science and intensive diplomacy; it mandates a shift in the way we think about U.S. goals, our range of action, and our commitment to values beyond self-enrichment." Is Obama the president to inspire such a vision?

There's smoke in the air from something other than burning rain forests just now. The real estate bubble has burst. We're struggling to adjust to a reality not-financed with cheap paper held overseas. Sleeves rolled up, we face a future in which we must once again learn to equate the value of a thing with the labor it takes to create it.

Why not a call for a New Horizon now? We're spoiling the Earth with a headlong heedlessness that leaves us spiritually bankrupt. We are fouling our nest, packing it with credit card receipts, bogus mortgages and bills we cannot pay. How is it a City on a Hill is fast becoming a landfill?

Time for New Horizons? For commitments to sustaining techonologies and avoidance of waste? It's time for such a dream, and a leader to sing it to us. Will it be Obama? Will it?

What Are Facts, Anyway?

We say that trial is a vehicle for discovery of the truth. Legal issues are left, in almost every jurisdiction, for a judge to decide; juries decide facts. But just what are facts? The answer is by no means simple.

Quentin Skinner, a Cambridge historian, should be must reading for all trial lawyers. His two volume work, The Fountations of Modern Political Thought (1978) is scholarship at its best. But his three volume Visions of Politics is of potential great use to trial lawyers.

Chapter One of the first volume is entitled, "The practice of history and the cult of the fact." What's this? How can we make a cult of brute facts? Aren't beliefs the stuff of which cults are made? Isn't there a species of intellectual history that draws a comfortable distinction between facts and values?

Skinner reminds us again that there is no such facile distinction. Every look backward, whether it be to recreate why, let's say, Charles I's head was detached from his torso in 1649, or, more prosaically, why a client's car collided with the car of another resulting in the death of her children, results in recreation of the past. Every recreation requires interpretive commitments which, left unexplored, yield a past distorted rather than understood.

This chapter is a reprint of a 1997 essay in which Skinner took on Sir Geoffrey Elton's stark vision of the historian's craft. The debate between the two men sounded much like the challenge of a law professor trying to infuse in students a passion for the law of evidence. The past is inaccessible to use; we can approach in only through the use of interpretive tools designed to yield the most reliable vision possible. But are these tools we hold at arm's length, or does the lens also change the viewer?

Elton counseled method over all: What was studied matter less than the manner of studying. Historians are apprentices learning a craft. Whether they make tables or door stops matters but little. Craft is all.

But as Skinner notes this conclusion is deeply ironic. A critical engagement with the past might yield us better able to call for reform in our own world by freeing us from preconception. Yet a scholar trapped within the confines of his method eschews such a vocation. Education, Elton, is forced to conclude, is a lievlihood perhaps beset by folly.

Of what significance is this to trial lawyers? We, too, are apprentices in a craft designed to teach us to recreate the past. But we do so not in a detached sense of withdrawal from the present. Rather, the present's imperatives press down upon us. The luberty of ther client seated to our right, her future, and the future of her family, depends on our craftsmanship.

I am persuaded that there are no such thing as great cases. But there are great lawyers. Study the trials of Clarence Darrow, or the work of Gerry Spence. In each case, these geniuses used their craft to recreate the past in such a way that jurors were empowered to speak not simply of what has taken place, but of what should come. Their are no brute facts. But there are stories than be told with better and more fluid terms. Great lawyers transform ordinary trials into great stories.

Skinner's essay is must reading for a trial lawyer. There is perhaps no method by which genius can be taught. As Goethe once observed, "talent does what it can; genius does what it must." Yet Skinner informs and reminds that every look back is a present act fraught with consequences for the future. After reading his essay of the cult of facts, I am looking once again at the evidence I have assembled for a trial to come next month. What seeds have I overlooked? What commitments have I made without being aware? Where am I invited to paint on the present's blank canvas in colors my adversary may not even see?

If You're Reading This ...

... you have too much time on your hands.

But who am I to criticize you? I am writing. Presumably that takes more time than writing. (I saw your lips moving as you read. Perhaps my estimation of time is all wrong.)

So tell me, reader? Who is the greatest trial lawyer of all time? Was it Clarence Darrow? Or is it Gerry Spence? Or does the question make no sense?

I am of the latter opinion. Walking in another man's shadow merely gives me a chill. Too many fringe suckers out there to suit me.

I've won cases I thought I'd lose, and lost cases I think I should have won. I go to court almost every day to argue about one thing or another. This page is simply a continuation of that vocation. I have no creed, no program, no agenda. I just want to raise some Hell and have a little fun.

Darrow once wrote that "`the people' are also a myth, the figment of an illusion, a spectral cohort that only eyes of faith can see." You won't find much faith here. Oh, there are simple statements I take to by true, call them an inchoate creed if you will. I am persuaded that whenever more than three people sit together in a room for more than a few minutes, the fourth person to walk in will be perceived an outsider. For reasons I cannot fathom, I am drawn to the outsider.

So today begins a new chapter. Read if you like, or don't read if that suits you. My ego craves foreign eyes delighting in what is here. But readers or not, I'll hammer away in the silence this screen invites.