I miss Linda Greenhouse's reporting on the law in The New York Times. She has been replaced by a fellow named Adam Liptak. Liptak writes well enough for the Times, but his analysis rarely rises above the obvious, and he sometimes misses nuances that are important.
In this morning's paper, Liptak reports on the exclusionary rule, the latest endangered doctrine in the law. The Supreme Court seems poised to do away with the rule. Liptak is right, of course. The recent decision in Herring ruled that mere negligence by a police officer is not enough to yield suppression of evidence. Thus in the case of Mr. Herring, the fact that sloppy policy work resulted in his arrest for a non-existent warrant does not yield suppression of evidence seized at the time of his arrest.
The court seems to be distancing itself from the doctrine that requires suppression of evidence seized when police violate the law. A new doctrine is emerging, requiring courts to balance the harm resulting from suppression against the deterrence value of suppression as a remedy for police misconduct. The emerging doctrine says that when a police officer is merely negligence, the balance tips in favor locking up the bad guys.
All this is obvious. But here is where Liptak falls far short of the level of analysis expected of the Times. He paraphrases Justice Anotnin Scalia's majority opinion in Hudson v. Michigan for the proposition that suppression is not necessary as a remedy because people can now sue the police for misconduct, a right set in stone about the time the exclusionary rule took shape.
What no one notices is the following. An action against a police officer for a Fourth Amendment violation can be pursued under 42 U.S.C. Section 1983. But these actions cannot be supported by allegations of mere negligence. An officer's misconduct must arise from recklessness or intent to be cognizable. Ordinary negligence claims never make it passed a motion to dismiss. Period.
Scalia's cheery dicta about civil suits for lawyers is simple silliness. In Herring's case there can be no federal civil rights remedy. The cops were merely careless. Hence, evidence seized unlawfully was used to convict him, and there is nothing he can do about it. There is no deterrence. Period. To suggest otherwise is simply ignorance, as in Liptak's case, or worse, as in Scalia's.
What's more, even in those instances in which there might be a claim for police misconduct, where cops are reckless or act with intent, many jurisdictions routinely indemnify police officers for their damages and the cost of their defense. Put another way, government insures police officers agains the consquences of violating our rights.
The Herring and Hudson decisions should be read together. When they are, the picture emerging is chilling: There are no remedies against illegal searches and seizures when police are merely careless. That's the law. And we haven't even begun to discuss the Court's recent decision on qualified immunity, which will follow here in a later post.
Bottom line: Medieval law knew a maximum which went as follows: The king can do no wrong. Substitute state for king in our emerging jurisprudence and you get the picture. Rights are merely recommendations the sovereign is free to follow or not. This is frontpage news, but not the news the Times reported.
Saturday, January 31, 2009
Friday, January 30, 2009
Another Ho Hum Slap At The Fourth Amendment?
The Fourth Amendment prohibition against warrantless search and seizures sounds impressive. Standing alone, this looks like a mighty oak providing shelter against an overreaching government. However, the amendment more nearly represents a bush now overtaken with weeds. The various exceptions to the warrant requirement all but make the Fourth Amendment just another piece of vegetation on the state's farm.
This week's decision in Arizona v. Johnson settles decisively a point the Court had not made explicit in recent cases: Cops stopping a car have the right on reasonable suspicion of a violation of the law have the right to detain and frisk all of the occupants of the car if they have good reason to believe the occupants might be armed.
The automobile exception to the warrant requirement revolves around the twin towers of a concern for officer safety and the assertion that we do not have a reasonable expectation of privacy while in our cars. Johnson does not forge radically new ground, it mere extends the holdings of earlier cases in such a way as to draw the only logical conclusion. If there is a right to stop and frisk people engaged in shady conduct, Terry v. Ohio, 392 U.S. 1 (1968), that right extends people in cars. Berkemer v. McCarty, 468 U.S. 420 (1984). Once a car is stopped, police may lawfully order the driver out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977); the court later held passengers could also be ordered out of the car. Maryland v. Wilson, 519 U.S. 408 (1997). These passengers have standing to challenging the seizure. Brendlin v. California, 551 U.S. 249 (2007). This week the court left no doubt that a passenger could be ordered out of the searched. if the officer has good reason, apparently no matter how flimsy, to believe the person might be armed and dangerous.
In Johnson, officers in a gang unit stopped a car because of a traffic infraction. (The classic pretext.) Johnson, a passenger in the rear seat, wore a blue bandana and other clothing consistent with membership in the Crips. He also had a scanner in his jacket pocket. He told the officer that he was from another town in which the Crips were active, and that he had served time in prison for burglary. The officer then asked the man out of the car and decided to search his as she concluded he might be armed.
Johnson tried to argue that his decision to get out of the car was consensual and the search of him was not related to the stop. The Court wasn't buying this. The man could be a criminal, the court reasoned, and the officer had reason to pat him down as part of the auto stop.
The decision has the sort of exhausted feel of a terminally ill patient being told he needs yet another transfusion. "We're trying to save your life," the doctor says. But both know the man is dying. So, too, with the Fourth Amendment. The court's concern about all that can wrong at an auto stop has it in a frame of mind to excuse ever increasing invasions of the right to be let alone.
Somehow this case doesn't inspire me with thoughts that Big Brother is watching. I've grown so used to his glare and the court's blithe acquiescene to the imperatives of power that I no longer think of the eyes that peer through me. Instead, my reaction falls more along the lines of "Ho Hum." Another brick in a wall becoming impenatrable. Perhaps that is what is so truly sad about Arizona v. Johnson. I would not have expected the court to rule otherwise.
This week's decision in Arizona v. Johnson settles decisively a point the Court had not made explicit in recent cases: Cops stopping a car have the right on reasonable suspicion of a violation of the law have the right to detain and frisk all of the occupants of the car if they have good reason to believe the occupants might be armed.
The automobile exception to the warrant requirement revolves around the twin towers of a concern for officer safety and the assertion that we do not have a reasonable expectation of privacy while in our cars. Johnson does not forge radically new ground, it mere extends the holdings of earlier cases in such a way as to draw the only logical conclusion. If there is a right to stop and frisk people engaged in shady conduct, Terry v. Ohio, 392 U.S. 1 (1968), that right extends people in cars. Berkemer v. McCarty, 468 U.S. 420 (1984). Once a car is stopped, police may lawfully order the driver out of the car. Pennsylvania v. Mimms, 434 U.S. 106 (1977); the court later held passengers could also be ordered out of the car. Maryland v. Wilson, 519 U.S. 408 (1997). These passengers have standing to challenging the seizure. Brendlin v. California, 551 U.S. 249 (2007). This week the court left no doubt that a passenger could be ordered out of the searched. if the officer has good reason, apparently no matter how flimsy, to believe the person might be armed and dangerous.
In Johnson, officers in a gang unit stopped a car because of a traffic infraction. (The classic pretext.) Johnson, a passenger in the rear seat, wore a blue bandana and other clothing consistent with membership in the Crips. He also had a scanner in his jacket pocket. He told the officer that he was from another town in which the Crips were active, and that he had served time in prison for burglary. The officer then asked the man out of the car and decided to search his as she concluded he might be armed.
Johnson tried to argue that his decision to get out of the car was consensual and the search of him was not related to the stop. The Court wasn't buying this. The man could be a criminal, the court reasoned, and the officer had reason to pat him down as part of the auto stop.
The decision has the sort of exhausted feel of a terminally ill patient being told he needs yet another transfusion. "We're trying to save your life," the doctor says. But both know the man is dying. So, too, with the Fourth Amendment. The court's concern about all that can wrong at an auto stop has it in a frame of mind to excuse ever increasing invasions of the right to be let alone.
Somehow this case doesn't inspire me with thoughts that Big Brother is watching. I've grown so used to his glare and the court's blithe acquiescene to the imperatives of power that I no longer think of the eyes that peer through me. Instead, my reaction falls more along the lines of "Ho Hum." Another brick in a wall becoming impenatrable. Perhaps that is what is so truly sad about Arizona v. Johnson. I would not have expected the court to rule otherwise.
Thursday, January 29, 2009
What's Wrong With Group Voir Dire?
Connecticut’s constitution is unique: Alone among its counterparts, it guarantees that each lawyer picking a jury will have the right to question potential jurors individually. But it does not follow from this right that all other jurors should be sequestered during that questioning. Connecticut lawmakers could save a fortune and speed the administration of justice by eliminating routine individual sequestered voir dire.
It is a commonplace that jury selection often takes longer that the presentation of evidence. Perhaps that is as it should be. Jury consultants often claim that trials are won or lost well before evidence is presented.
But most of these jury consultants work in states other than Connecticut, and only Connecticut has individual sequestered voir dire in every jury case. Most states, and the federal courts, operate on the basis of group voir dire. And pioneering jurists in Connecticut, led by Connecticut Superior Court Judge Linda Lager, are encouraging the practice here.
I tried it once before Judge Lager and it worked well. Obtaining my client’s consent was easy. We were in state court on an unreasonable force case arising under the Fourth Amendment. The case could as easily have been brought in federal court. I’ve tried scores of these cases, and I told my client that in my view it mattered not how the jury was selected so long as the lawyer, and not the judge, was able to ask questions.
In federal court, the system favors what I call "God in the box" voir dire. A federal judge sits atop Mount Sinai and barks out questions that sound like commands. Jurors timidly assent, only rarely asking to approach to discuss what is really on their minds. Federal jurists seem to panic when lawyers ask questions, and lawyer-conducted voir dire is not permitted in the federal courts as a matter of right. The result is a jury selection process that has the look and feel of bidding at a slave auction.
Chief Justice Chase Rogers has convened a committee of lawyers and judges to study voir dire. The panel is considering recommending group voir dire. The recommendation does not go far enough. Group voir dire should be the norm, with exceptions granted only for good cause shown or in special types of cases. Some states, for example, permit individual sequestered voir dire only in capital cases, where jurors are required to dance the morbid tango known as "death qualification."
The panel is said to have two primary concerns.
First, will folks be candid if they are part of a group? The answer is yes. A well-trained lawyer can conduct group voir dire. The key is to get venire people talking to one another. This method of doing voir dire can be learned in a weekend. Gerry Spence’s Trial Lawyers’ College offers such training across the country. My experience is that it is far less terrifying for jurors to acknowledge their views in front of their peers than it is to sit alone in a jury box with everyone staring at them.
Another concern is that the panel may be tainted by someone blurting something out. Let’s rehearse the old canard here: A properly instructed jury is presumed to follow the law. Instruct panel members not to relate particular knowledge about the case or parties, but to ask for a sidebar on such questions. Should someone blurt out a general statement of opinion, participants should regard it as a gift. I was once able to question a group in the courtroom of U.S. District Judge Dominic Squatrito. My client was notorious. When a panelist blurted out scorn for the client and case, I was able to use the opinion to question others. Candor is a gift rarely given in voir dire.
Lawmakers looking to save money can do so easily: Enact a statute requiring group voir dire in all but a handful of cases. Then get out of the way of a court docket that learns to walk after decades of limping.
Reprinted courtesy of The Connecticut Law Tribune.
It is a commonplace that jury selection often takes longer that the presentation of evidence. Perhaps that is as it should be. Jury consultants often claim that trials are won or lost well before evidence is presented.
But most of these jury consultants work in states other than Connecticut, and only Connecticut has individual sequestered voir dire in every jury case. Most states, and the federal courts, operate on the basis of group voir dire. And pioneering jurists in Connecticut, led by Connecticut Superior Court Judge Linda Lager, are encouraging the practice here.
I tried it once before Judge Lager and it worked well. Obtaining my client’s consent was easy. We were in state court on an unreasonable force case arising under the Fourth Amendment. The case could as easily have been brought in federal court. I’ve tried scores of these cases, and I told my client that in my view it mattered not how the jury was selected so long as the lawyer, and not the judge, was able to ask questions.
In federal court, the system favors what I call "God in the box" voir dire. A federal judge sits atop Mount Sinai and barks out questions that sound like commands. Jurors timidly assent, only rarely asking to approach to discuss what is really on their minds. Federal jurists seem to panic when lawyers ask questions, and lawyer-conducted voir dire is not permitted in the federal courts as a matter of right. The result is a jury selection process that has the look and feel of bidding at a slave auction.
Chief Justice Chase Rogers has convened a committee of lawyers and judges to study voir dire. The panel is considering recommending group voir dire. The recommendation does not go far enough. Group voir dire should be the norm, with exceptions granted only for good cause shown or in special types of cases. Some states, for example, permit individual sequestered voir dire only in capital cases, where jurors are required to dance the morbid tango known as "death qualification."
The panel is said to have two primary concerns.
First, will folks be candid if they are part of a group? The answer is yes. A well-trained lawyer can conduct group voir dire. The key is to get venire people talking to one another. This method of doing voir dire can be learned in a weekend. Gerry Spence’s Trial Lawyers’ College offers such training across the country. My experience is that it is far less terrifying for jurors to acknowledge their views in front of their peers than it is to sit alone in a jury box with everyone staring at them.
Another concern is that the panel may be tainted by someone blurting something out. Let’s rehearse the old canard here: A properly instructed jury is presumed to follow the law. Instruct panel members not to relate particular knowledge about the case or parties, but to ask for a sidebar on such questions. Should someone blurt out a general statement of opinion, participants should regard it as a gift. I was once able to question a group in the courtroom of U.S. District Judge Dominic Squatrito. My client was notorious. When a panelist blurted out scorn for the client and case, I was able to use the opinion to question others. Candor is a gift rarely given in voir dire.
Lawmakers looking to save money can do so easily: Enact a statute requiring group voir dire in all but a handful of cases. Then get out of the way of a court docket that learns to walk after decades of limping.
Reprinted courtesy of The Connecticut Law Tribune.
Wednesday, January 28, 2009
Van de Kamp v. Goldstein: Two Down, One To Go?
Immunities from suit bother me, and not just because I sue people for a living. Immunities for public officials who violate the law seem inconsistent with a republican form of government. We the people created a government composed of folks who are immune from the consequences of their error? That sounds awfully regal to me.
The Supreme Court's decision in Van de Kamp v. Goldstein, announced this week, isn't regal in tone. But it is troubling nonetheless.
Thomas Goldstein was convicted of murder in 1980 by a California jury. Many years later, he learned that a key witness against him was a man with a troubled past who had previously testified for the state and been given favorable treatment by prosecutors. This sort of information must be shared with defense lawyers as a matter of law.
Goldstein successfully persuaded federal judges that his rights had been violated by the prosecution's failure to turn over impeachment material. One federal panel called the failure to turn materials over a result of a failure "to adequately [sic] train and supervise deputy district attorneys" on the subject. Goldstein's conviction was vacated and the state elected not to retry him -- he had served 24 years as a result of prosecutorial misconduct. Goldstein then sued under 42 U.S.C. Section 1983, which permits a claim for money damages when a state official violates a person's rights.
The law regarding prosecutorial immunity relies on a functional test: Prosecutors are immune when performing core prosecutorial functions, such as deciding whether to prosecute or putting on evidence. The courts have permitted suits to go forward when prosecutorials shed their role as advocates and become complaining witnesses. In the Goldstein case, the plaintiff argued that administrative failures by a prosecutor's office involving the failure to train prosecutors fell outside the range of immune acts.
The Goldstein court parsed a prosecutor's job into three separate functions: the so-called judicial function, in which the prosecutor serves as an advocate; an administrative function, involving the setting of office priorities and training; and, the investigative function, in which a prosecutor serves as a complaining witness.
Prior cases, Imbler v. Pachtman,424 U.S. 409 (1976) and, Kalina v. Fletcher, 522 U.S. 118 (1997), made clear that prosecutors are immune when acting in their judicial or advocacy function. Goldstein now makes clear that prosecutors are immune for administrative functions as well. I predict that within the next term or two the court will tee up a case involving immunity for prosecutors in their investigative function as well.
The Goldstein court weighs in on the side of worrying the prosecutors concerned about unfounded litigation might pull punches if they are required to keep a wary eye on civil liability. But what about the Goldstein's of the world, men whose rights are violated because prosecutors needn't worry about the consequences of their conduct? Powerful policy arguments support the claim that imposing liability might yield better prosecutors and a system less likely to prey upon the rights of the accused. What would be wrong with a counterweight in the form of civil liability to overcriminalization?
Goldstein worries about liability for acts "directly connected with the conduct of a trial." It would not take very creative reasoning to extend immunity to investigative behavior as well. After all, what is a trial without facts?
Goldstein is a disappointing but unsurprising decision. The sovereign once again says to the people: hands off, what pleases me has the force of law.
The Supreme Court's decision in Van de Kamp v. Goldstein, announced this week, isn't regal in tone. But it is troubling nonetheless.
Thomas Goldstein was convicted of murder in 1980 by a California jury. Many years later, he learned that a key witness against him was a man with a troubled past who had previously testified for the state and been given favorable treatment by prosecutors. This sort of information must be shared with defense lawyers as a matter of law.
Goldstein successfully persuaded federal judges that his rights had been violated by the prosecution's failure to turn over impeachment material. One federal panel called the failure to turn materials over a result of a failure "to adequately [sic] train and supervise deputy district attorneys" on the subject. Goldstein's conviction was vacated and the state elected not to retry him -- he had served 24 years as a result of prosecutorial misconduct. Goldstein then sued under 42 U.S.C. Section 1983, which permits a claim for money damages when a state official violates a person's rights.
The law regarding prosecutorial immunity relies on a functional test: Prosecutors are immune when performing core prosecutorial functions, such as deciding whether to prosecute or putting on evidence. The courts have permitted suits to go forward when prosecutorials shed their role as advocates and become complaining witnesses. In the Goldstein case, the plaintiff argued that administrative failures by a prosecutor's office involving the failure to train prosecutors fell outside the range of immune acts.
The Goldstein court parsed a prosecutor's job into three separate functions: the so-called judicial function, in which the prosecutor serves as an advocate; an administrative function, involving the setting of office priorities and training; and, the investigative function, in which a prosecutor serves as a complaining witness.
Prior cases, Imbler v. Pachtman,424 U.S. 409 (1976) and, Kalina v. Fletcher, 522 U.S. 118 (1997), made clear that prosecutors are immune when acting in their judicial or advocacy function. Goldstein now makes clear that prosecutors are immune for administrative functions as well. I predict that within the next term or two the court will tee up a case involving immunity for prosecutors in their investigative function as well.
The Goldstein court weighs in on the side of worrying the prosecutors concerned about unfounded litigation might pull punches if they are required to keep a wary eye on civil liability. But what about the Goldstein's of the world, men whose rights are violated because prosecutors needn't worry about the consequences of their conduct? Powerful policy arguments support the claim that imposing liability might yield better prosecutors and a system less likely to prey upon the rights of the accused. What would be wrong with a counterweight in the form of civil liability to overcriminalization?
Goldstein worries about liability for acts "directly connected with the conduct of a trial." It would not take very creative reasoning to extend immunity to investigative behavior as well. After all, what is a trial without facts?
Goldstein is a disappointing but unsurprising decision. The sovereign once again says to the people: hands off, what pleases me has the force of law.
Tuesday, January 27, 2009
Compulsory Jury Service At A Living Wage
I am picking a jury this week in a manslaughter case. It is heart-breaking. My client is charged with causing the death of two of her three small children in a head-on crash with another car. Blood-alcohol tests at the hospital, where my client had been resuscitated, yielded results consistent with intoxication. In fact, she wasn;t intoxicated, but the state isn't listening. I am hoping a jury will.
Connecticut jury selection is, I am told, unique. We question each juror outside of the presence of all other jurors. It is called individual sequestered voir dire. Picking three jurors in one day is considered alot. The norm is a juror or two. We are looking for six jurors and two alternates in this case.
Picking jurors is an exercise in something akin to anthropology. Folks stumble in from all walks of life: physicians sit next to unemployed truck drivers; single mothers and well-healed matrons sit anxiously wondering what will happen next. What norms do all these folks share? Does their world resemble the world of the client sitting silently at my side?
The court is free to excuse jurors for good cause. One such cause is economic hardship. If a person lives so close to the edge of economic survival that missing a couple of weeks of works will be distracting, that juror is excused. The state requires employers to pay for the first five days of jury service, but that is only for full-time employees. After the fifth day, jurors are paid a stipend of $50 per day. The result is that lower-middle class and poor people are often excused because of economic necessity. (Professionals also seem to be cut some informal slack if they articulate scheduling issues that could distract them.)
The result skews juries. Rather than a fair cross section of the community, juries often come to resemble comfortable enclaves of folks who share middle class norms and lifestyles. Vast segments of the community are excluded from service because they are not affluent enough to be able to take an economic hit for a few weeks.
A better system would be one which eliminated economic considerations for service. Rather than paying a flat fee, the courts should consider a replacement wage theory of compensation. Thus, a juror could present to the court his or her three most recent pay stubs. The court would then fix juror compensation at an average daily rate calculated from this sum. This does yield greater payment to some than others, and that is troubling. But it would assure that no one is kept from jury service because they cannot afford to serve. For those with no income, the court could offer market-basket compensation, giving jurors a sum sufficient to support them and their family for the day.
Times are tough, I know. I've read reports of courts in some states suspending jury trials briefly to save money. But times are rarely as tough for a juror as they are for a defendant facing years in prison. That defendant is entitled to a jury of his or her peers. When only the relatively well-heeled can afford to sit on a jury something is wrong. This silent property qualification needs to be eliminated.
Connecticut jury selection is, I am told, unique. We question each juror outside of the presence of all other jurors. It is called individual sequestered voir dire. Picking three jurors in one day is considered alot. The norm is a juror or two. We are looking for six jurors and two alternates in this case.
Picking jurors is an exercise in something akin to anthropology. Folks stumble in from all walks of life: physicians sit next to unemployed truck drivers; single mothers and well-healed matrons sit anxiously wondering what will happen next. What norms do all these folks share? Does their world resemble the world of the client sitting silently at my side?
The court is free to excuse jurors for good cause. One such cause is economic hardship. If a person lives so close to the edge of economic survival that missing a couple of weeks of works will be distracting, that juror is excused. The state requires employers to pay for the first five days of jury service, but that is only for full-time employees. After the fifth day, jurors are paid a stipend of $50 per day. The result is that lower-middle class and poor people are often excused because of economic necessity. (Professionals also seem to be cut some informal slack if they articulate scheduling issues that could distract them.)
The result skews juries. Rather than a fair cross section of the community, juries often come to resemble comfortable enclaves of folks who share middle class norms and lifestyles. Vast segments of the community are excluded from service because they are not affluent enough to be able to take an economic hit for a few weeks.
A better system would be one which eliminated economic considerations for service. Rather than paying a flat fee, the courts should consider a replacement wage theory of compensation. Thus, a juror could present to the court his or her three most recent pay stubs. The court would then fix juror compensation at an average daily rate calculated from this sum. This does yield greater payment to some than others, and that is troubling. But it would assure that no one is kept from jury service because they cannot afford to serve. For those with no income, the court could offer market-basket compensation, giving jurors a sum sufficient to support them and their family for the day.
Times are tough, I know. I've read reports of courts in some states suspending jury trials briefly to save money. But times are rarely as tough for a juror as they are for a defendant facing years in prison. That defendant is entitled to a jury of his or her peers. When only the relatively well-heeled can afford to sit on a jury something is wrong. This silent property qualification needs to be eliminated.
Monday, January 26, 2009
Jus Cogens And Section 1983
My wife and I just returned from four days on the left coast, Seattle to be exact, where we were visiting a couple of our children who have migrated west. One of the benefits of trans-continental travel is uninterrupted reading time during long travel days. My return trip was consumed by time reading through the first couple of chapters of International Human Rights Lawyering, by Ralph Steinhardt, Paul Hoffman and Christopher Camponovo. I feel as though someone has removed blinders.
I was deeply cynical about international law as a student. Long ago, I audited an international law course taught by Louis Henkin. We used a casebook edited in part by Oliver Lissitzyn. I was a graduate student in political philosophy at the time, and was puzzled enough by the very existence of the state. I could at least comprehend the law as rules backed by the force of this potent legal fiction. I had no comprehension of international norms. I stopped attending the class after several entirely unsatisfactory exchanges with Henkin. My loss, it turns out. Law review articles by Henkin pepper the notes in International Human Rights Lawyering.
The use of international law as a sources of rights enforceable in United States courts is electrifying. Our Supreme Court is retreating at breakneck speed from a commitment to litigation arising under 42 U.S.C. Section 1983. The qualified immunity doctrine now shields an ever-broader range of misbehavior by government officials. Last week's decision in Pearson v. Callahan, effectively freeing the judiciary to act even more boldly in granting immunity, will further hobble at act that is already limping.
What's a civil rights lawyer to do in this environment?
One possibility is to add international law claims to routine civil rights claims. There is an emerging body of law that is at once progressive and majestic in its reach. International covenants, treaties, and, most fruitful of all, an emerging consensus about something like fundamental law, are taking shape throughout the world. And our courts are bound to enforce and interpret these laws.
Consider the case of Hawkins v. Comparet-Cassani, 33 F.Supp. 2d 1244 (C.D.Cal.1999). Although this litigation ulitmately failed, it was a challenge to the use of stun-guns as a restraining device akin to torture, litigants sought relief by claiming that the use of these devices violated jus cogens. "Jus cogens norms of international law comprise the body of laws that are considered so fundamental that they are binding on all nations whether the nations have consetened to them or not," the court notes. The court also noted that there are no reported cases recognizing such a cause of action for "acts committed by United States government officials against a citizen of the United States."
The absence of such a reported case is obviously a sobering reminder that international norms may well fall on deaf ears in an American court. It does not help matters that a rump of the current Supreme Court is openly scornful of international law as a source of law binding in our courts. Antonin, Antonin, what world are you living in? (See the Scalia dissent in Roper v. Simmons, 543 U.S. 551 (2005)(holding that execution of juveniles does not comport with the Eighth Amendment interpreted in the light of contemporary international jurisprudence; Scalia's dissent seems to equate xenophobia with patriotism).
It takes lingering American exceptionalism entirely too far to contend this City on a Hill of ours is so far elevated above the fray that international norms do not apply to us. We're not living on Mount Sinai, after all; our founders were not proclaiming the Ten Commandments, merely a provisional stab at norms that worked here given the particular problems we faced in establishing a new nation several centuries ago.
International law is not a netherworld unreachable from within the confines of our federal constitution. The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations. Bringing this message to trial courts in a meaningful manner is a challenge I do not yet know how to meet. But it strikes me as a worthy effort, especially since our commitment to the 1983 claims is withering on a vine of judicial indifference.
I was deeply cynical about international law as a student. Long ago, I audited an international law course taught by Louis Henkin. We used a casebook edited in part by Oliver Lissitzyn. I was a graduate student in political philosophy at the time, and was puzzled enough by the very existence of the state. I could at least comprehend the law as rules backed by the force of this potent legal fiction. I had no comprehension of international norms. I stopped attending the class after several entirely unsatisfactory exchanges with Henkin. My loss, it turns out. Law review articles by Henkin pepper the notes in International Human Rights Lawyering.
The use of international law as a sources of rights enforceable in United States courts is electrifying. Our Supreme Court is retreating at breakneck speed from a commitment to litigation arising under 42 U.S.C. Section 1983. The qualified immunity doctrine now shields an ever-broader range of misbehavior by government officials. Last week's decision in Pearson v. Callahan, effectively freeing the judiciary to act even more boldly in granting immunity, will further hobble at act that is already limping.
What's a civil rights lawyer to do in this environment?
One possibility is to add international law claims to routine civil rights claims. There is an emerging body of law that is at once progressive and majestic in its reach. International covenants, treaties, and, most fruitful of all, an emerging consensus about something like fundamental law, are taking shape throughout the world. And our courts are bound to enforce and interpret these laws.
Consider the case of Hawkins v. Comparet-Cassani, 33 F.Supp. 2d 1244 (C.D.Cal.1999). Although this litigation ulitmately failed, it was a challenge to the use of stun-guns as a restraining device akin to torture, litigants sought relief by claiming that the use of these devices violated jus cogens. "Jus cogens norms of international law comprise the body of laws that are considered so fundamental that they are binding on all nations whether the nations have consetened to them or not," the court notes. The court also noted that there are no reported cases recognizing such a cause of action for "acts committed by United States government officials against a citizen of the United States."
The absence of such a reported case is obviously a sobering reminder that international norms may well fall on deaf ears in an American court. It does not help matters that a rump of the current Supreme Court is openly scornful of international law as a source of law binding in our courts. Antonin, Antonin, what world are you living in? (See the Scalia dissent in Roper v. Simmons, 543 U.S. 551 (2005)(holding that execution of juveniles does not comport with the Eighth Amendment interpreted in the light of contemporary international jurisprudence; Scalia's dissent seems to equate xenophobia with patriotism).
It takes lingering American exceptionalism entirely too far to contend this City on a Hill of ours is so far elevated above the fray that international norms do not apply to us. We're not living on Mount Sinai, after all; our founders were not proclaiming the Ten Commandments, merely a provisional stab at norms that worked here given the particular problems we faced in establishing a new nation several centuries ago.
International law is not a netherworld unreachable from within the confines of our federal constitution. The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations. Bringing this message to trial courts in a meaningful manner is a challenge I do not yet know how to meet. But it strikes me as a worthy effort, especially since our commitment to the 1983 claims is withering on a vine of judicial indifference.
Wednesday, January 21, 2009
Attacking A Judge For Using His Discretion: The Case Of Thomas P. Miano
Storm clouds are gathering over the Connecticut General Assembly as lawmakers consider the reappointment of Superior Court Judge Thomas P. Miano. A bitter fight is expected, and the focus of that fight is the judge's sentencing decision in the case of State v. Burke. A good jurist should not be immolated on a smouldering heap of half-truths. Judge Miano should be appointed to another eight-year term.
Edward Burke III was charged with possession of child pornography, a serious charge befitting serious consequences. At the time he was accused, lawmakers had not declared that there was a mandatory minimum prison sentence for a conviction. In other words, a judge had lawful discretion to give a man a suspended sentence if justice so required.
A good lawyer in such a case assesses quickly the character of the state's evidence. If it is looks as though the state has it right, and that is not always the case, a client is told to get treatment immediately. The hope and aim is that the client will be evaluated a low risk to reoffend. If the evidence is lawfully obtained, delay is used to prepare the best possible package for eventual sentencing. This appears to be what Mr. Burke's lawyer, John Maxwell, did.
At the end of the day, both the state and the prosecution agreed that Mr. Burke would face a sentence of up to four years behind bars. Mr. Burke retained the right to argue for a suspended sentence and no prison at the time of sentencing. The state agreed to such a sentence.
On sentencing day, the defense produced evidence that Mr. Burke was genuinely remorseful, that he had been evaluated by experts and was not a risk of reoffending, and that the public was protected by his new status as a sex offender required to seek treatment. The state had an opportunity to argue against the sentence and to present any information it liked to the court.
Judge Miano let the man walk. He found that the purposes of deterrence, rehabilitation and punishment were best served in this way.
The judge was then denounced by the community of Avon. Legions of pretty people in gingham dresses and pressed suits cried foul. Norman Rockewell's peace was disturbed; something needed to be done about this predator in their midst lest lust pollute all that is good, true and beautiful in that the best of all possible worlds.
Federal prosecutors were enticed to prosecute anew. The law states with logic unsalted by any sense of equity or fair play that a different sovereign may charge you with an offense identical to the one to which you just plead before another sovereign. The right hand and the left do not clap in unison.
This was a shocking result, and it sent ripples throughout the defense bar in the state. I was concerned about what the federal prosecutors were up to, and here is what I learned: The federal government prosecuted because prosecutors did not believe that Judge Miano took adequate account of the seriousness of the images in Mr. Burke's possession. These were not mere images of the Coppertone kid sporting a tan. There were films of shocking sado-masochistic violence.
Mr. Burke was prosecuted by the federal government and sentenced to three years imprisonment under federal sentencing guidelines.
Since the time of Mr. Burke's arrest, state lawmakers have deprived judges of discretion to walk folks convicted of most child pornography crimes. Lawmakers have tightened the screws, as is their right.
As lawmakers consider renomination of Judge Miano I fear they will indulge in a species of the retrospective fallacy. They will apply today's lens to yesterday's event and find old news disturbing. It should not be.
Judge Miano imposed a lawful sentence. No one questions that. What he did was exercise discretion given him by lawmakers. The fact that the outcome was unpopular should be of no moment in the renomination fight. Judges are paid to make difficult and sometimes unpopular decisions as they uphold the law in the face of popular passion. When the state tried to keep another sex offender, David Pollitt, behind bars after he had served his sentence, a judge had to say no. That is justice and courage.
Rather than seek to destroy Judge Miano, before whom I have appeared and in whom I detect no bias in favor of defendants, lawmakers should stop and consider a simple truth: The administration of justice knows no rule that one size fits all. Lawmakers make general rules and then give judges the discretion to apply them in particular cases. That is what Judge Miano did.
Any failure in the state case against Mr. Burke, and I am not conceding there was any, is really a failure of advocacy on the state's part. If the images were so shocking and so disturbing as to require prison, it was the state's job to make the necessary record. Apparently, that was not done. The state agreed a walk was potentially appropriate.
The Miano renomination fight is important. We do not want a judiciary ruling in fear of a lawmaker's shadow. Refusing to renominate Judge Miano for an unpopular choice demeans the judiciary and renders all of us more susceptible to the passions of the moment. That is truly terrifying, and has been throughout recorded history.
Judge Miano deserves renomination.
Reprinted courtesy of The Connecticut Law Tribune.
Edward Burke III was charged with possession of child pornography, a serious charge befitting serious consequences. At the time he was accused, lawmakers had not declared that there was a mandatory minimum prison sentence for a conviction. In other words, a judge had lawful discretion to give a man a suspended sentence if justice so required.
A good lawyer in such a case assesses quickly the character of the state's evidence. If it is looks as though the state has it right, and that is not always the case, a client is told to get treatment immediately. The hope and aim is that the client will be evaluated a low risk to reoffend. If the evidence is lawfully obtained, delay is used to prepare the best possible package for eventual sentencing. This appears to be what Mr. Burke's lawyer, John Maxwell, did.
At the end of the day, both the state and the prosecution agreed that Mr. Burke would face a sentence of up to four years behind bars. Mr. Burke retained the right to argue for a suspended sentence and no prison at the time of sentencing. The state agreed to such a sentence.
On sentencing day, the defense produced evidence that Mr. Burke was genuinely remorseful, that he had been evaluated by experts and was not a risk of reoffending, and that the public was protected by his new status as a sex offender required to seek treatment. The state had an opportunity to argue against the sentence and to present any information it liked to the court.
Judge Miano let the man walk. He found that the purposes of deterrence, rehabilitation and punishment were best served in this way.
The judge was then denounced by the community of Avon. Legions of pretty people in gingham dresses and pressed suits cried foul. Norman Rockewell's peace was disturbed; something needed to be done about this predator in their midst lest lust pollute all that is good, true and beautiful in that the best of all possible worlds.
Federal prosecutors were enticed to prosecute anew. The law states with logic unsalted by any sense of equity or fair play that a different sovereign may charge you with an offense identical to the one to which you just plead before another sovereign. The right hand and the left do not clap in unison.
This was a shocking result, and it sent ripples throughout the defense bar in the state. I was concerned about what the federal prosecutors were up to, and here is what I learned: The federal government prosecuted because prosecutors did not believe that Judge Miano took adequate account of the seriousness of the images in Mr. Burke's possession. These were not mere images of the Coppertone kid sporting a tan. There were films of shocking sado-masochistic violence.
Mr. Burke was prosecuted by the federal government and sentenced to three years imprisonment under federal sentencing guidelines.
Since the time of Mr. Burke's arrest, state lawmakers have deprived judges of discretion to walk folks convicted of most child pornography crimes. Lawmakers have tightened the screws, as is their right.
As lawmakers consider renomination of Judge Miano I fear they will indulge in a species of the retrospective fallacy. They will apply today's lens to yesterday's event and find old news disturbing. It should not be.
Judge Miano imposed a lawful sentence. No one questions that. What he did was exercise discretion given him by lawmakers. The fact that the outcome was unpopular should be of no moment in the renomination fight. Judges are paid to make difficult and sometimes unpopular decisions as they uphold the law in the face of popular passion. When the state tried to keep another sex offender, David Pollitt, behind bars after he had served his sentence, a judge had to say no. That is justice and courage.
Rather than seek to destroy Judge Miano, before whom I have appeared and in whom I detect no bias in favor of defendants, lawmakers should stop and consider a simple truth: The administration of justice knows no rule that one size fits all. Lawmakers make general rules and then give judges the discretion to apply them in particular cases. That is what Judge Miano did.
Any failure in the state case against Mr. Burke, and I am not conceding there was any, is really a failure of advocacy on the state's part. If the images were so shocking and so disturbing as to require prison, it was the state's job to make the necessary record. Apparently, that was not done. The state agreed a walk was potentially appropriate.
The Miano renomination fight is important. We do not want a judiciary ruling in fear of a lawmaker's shadow. Refusing to renominate Judge Miano for an unpopular choice demeans the judiciary and renders all of us more susceptible to the passions of the moment. That is truly terrifying, and has been throughout recorded history.
Judge Miano deserves renomination.
Reprinted courtesy of The Connecticut Law Tribune.
Monday, January 19, 2009
Parable Project: The Budding Fig Tree
The following is a short parable reported in the Gospels of Mark, Matthew and Luke. I rely on Mark's Gospel, which is generally acknowledged as the earliest. It is reported at Mark 13:28.
"From the fig tree learn its lesson: as soon as its branch becomes tender and puts forth its leaves, you know that summer is near."
It arises in the following context, also taken from Mark.
"So also, when you see these things taking place, you know that he is near, at the very gates. Truly I tell you, this generation will not pass away until all these things have taken place. Heaven and earth will pass away, but my words will not pass away. ‘But about that day or hour no one knows, neither the angels in heaven, nor the Son, but only the Father. Beware, keep alert; for you do not know when the time will come. It is like a man going on a journey, when he leaves home and puts his slaves in charge, each with his work, and commands the doorkeeper to be on the watch. Therefore, keep awake—for you do not know when the master of the house will come, in the evening, or at midnight, or at cockcrow, or at dawn, or else he may find you asleep when he comes suddenly. And what I say to you I say to all: Keep awake.’"
This is the sort of verse that drove me from any sort of faith as a young man. Clearly, each and every member of the generation hearing these words has been dead and gone for nearly two millenia now. What is is that has taken place?
Those who stake all on a literal interpretation of the Bible stumble at words such as these. But parables are more than literal expressions of fact. They are intended to be more than fact, to reflect a truth larger than any conceivable correspondence theory of truth. And, to those of you who do not garden or know trees, I insist that a fig is a bush, and not a tree. We have two on our property, both gnawed low by deer, but neither resembling a tree. A small point.
I do not look to the heavens and expect to see the Son of Man returning in a cloud of glory, or otherwise. Yet the message of wakefulness resonates.
"From the fig tree learn its lesson: as soon as its branch becomes tender and puts forth its leaves, you know that summer is near."
It arises in the following context, also taken from Mark.
"So also, when you see these things taking place, you know that he is near, at the very gates. Truly I tell you, this generation will not pass away until all these things have taken place. Heaven and earth will pass away, but my words will not pass away. ‘But about that day or hour no one knows, neither the angels in heaven, nor the Son, but only the Father. Beware, keep alert; for you do not know when the time will come. It is like a man going on a journey, when he leaves home and puts his slaves in charge, each with his work, and commands the doorkeeper to be on the watch. Therefore, keep awake—for you do not know when the master of the house will come, in the evening, or at midnight, or at cockcrow, or at dawn, or else he may find you asleep when he comes suddenly. And what I say to you I say to all: Keep awake.’"
This is the sort of verse that drove me from any sort of faith as a young man. Clearly, each and every member of the generation hearing these words has been dead and gone for nearly two millenia now. What is is that has taken place?
Those who stake all on a literal interpretation of the Bible stumble at words such as these. But parables are more than literal expressions of fact. They are intended to be more than fact, to reflect a truth larger than any conceivable correspondence theory of truth. And, to those of you who do not garden or know trees, I insist that a fig is a bush, and not a tree. We have two on our property, both gnawed low by deer, but neither resembling a tree. A small point.
I do not look to the heavens and expect to see the Son of Man returning in a cloud of glory, or otherwise. Yet the message of wakefulness resonates.
Whither Legal Aid?
The New York Times this morning reports that Legal Aid societies nationwide are feeling the pinch of economic necessity. As interest rates fall in an effort to jump start a lagging economy, revenue for Legal Aid drops. That is because these groups are heavily dependent on income derived from interest of lawyer trust accounts, so-called IOLTA funds.
In Connecticut, as many as 150 lawyers and legal support staff my be laid off, according to Connecticut Legal Services. That means there will be fewer lawyers available to help folks with evictions, foreclosures, unemployment claims, domestic violence; in other words, the court system will be beseiged by more pro se litigants trying to make sense of the law. These one-armed Davids won't be able to load their slingshots as they stare down Goliath in a courtroom.
We guarantee indigent folks a right to counsel when their liberty interests are at stake. Yet when it comes to their property interests, we tell folks they are on their own. While not rising to the level of outright hypocrisy, this double standard nonetheless sheds troubling light on the Fourteenth Amendment's recognition of both liberty and property interests.
Private firms cannot absorb the demand for indigent representation. While all lawyers have an obligation to provide services on a pro bono basis when they are able to do so, economic woes are also battering the for-profit sector of the bar.
I am hard pressed to understand the vitriole expressed by groups like the Washington Legal Foundation against Legal Aid. Our society is complex. We live amid sometimes impenetrable and conflicting webs of laws, regulations, rules and procedures that are enough to make the heads of lawyers ache. It is no surprise that lay people, especially those living at the margins of society, need help untangling the mess in which they find themselves.
We do not do enough as a society to recognize the need for counsel. While the public defender system is a start, it does not go far enough. On the criminal side, we should guarantee counsel to all Americans, regardless of their income. The state needs not reckon costs when it prosecutes an individual case. Yet middle class families do. Unable to qualify for a public defender, a family of ordinary means must scramble to obtain competent counsel, experts and whatever else their defense requires. Folks are presumed innocent, but that presumption should not extent to a presumption of financial health as well.
And on the civil side, we should have a means test that permits families to obtain low-cost counsel when necessity strikes. A family about to lose its home, or a person wrongfully forced out of a job, ought not to be compelled to represent themselves. It makes little sense to send the innocent into the shark infested waters of a municipal court.
Legal Aid is floundering. Ordinary people are getting hurt. We proclaim equal rights for all but wink at the sad reality that those with means have rights they can vindicate while those without means are victimized.
In Connecticut, as many as 150 lawyers and legal support staff my be laid off, according to Connecticut Legal Services. That means there will be fewer lawyers available to help folks with evictions, foreclosures, unemployment claims, domestic violence; in other words, the court system will be beseiged by more pro se litigants trying to make sense of the law. These one-armed Davids won't be able to load their slingshots as they stare down Goliath in a courtroom.
We guarantee indigent folks a right to counsel when their liberty interests are at stake. Yet when it comes to their property interests, we tell folks they are on their own. While not rising to the level of outright hypocrisy, this double standard nonetheless sheds troubling light on the Fourteenth Amendment's recognition of both liberty and property interests.
Private firms cannot absorb the demand for indigent representation. While all lawyers have an obligation to provide services on a pro bono basis when they are able to do so, economic woes are also battering the for-profit sector of the bar.
I am hard pressed to understand the vitriole expressed by groups like the Washington Legal Foundation against Legal Aid. Our society is complex. We live amid sometimes impenetrable and conflicting webs of laws, regulations, rules and procedures that are enough to make the heads of lawyers ache. It is no surprise that lay people, especially those living at the margins of society, need help untangling the mess in which they find themselves.
We do not do enough as a society to recognize the need for counsel. While the public defender system is a start, it does not go far enough. On the criminal side, we should guarantee counsel to all Americans, regardless of their income. The state needs not reckon costs when it prosecutes an individual case. Yet middle class families do. Unable to qualify for a public defender, a family of ordinary means must scramble to obtain competent counsel, experts and whatever else their defense requires. Folks are presumed innocent, but that presumption should not extent to a presumption of financial health as well.
And on the civil side, we should have a means test that permits families to obtain low-cost counsel when necessity strikes. A family about to lose its home, or a person wrongfully forced out of a job, ought not to be compelled to represent themselves. It makes little sense to send the innocent into the shark infested waters of a municipal court.
Legal Aid is floundering. Ordinary people are getting hurt. We proclaim equal rights for all but wink at the sad reality that those with means have rights they can vindicate while those without means are victimized.
Sunday, January 18, 2009
Time for a New Dream?
A little more than 45 years ago, Martin Luther King Jr. stood on the steps of the Lincoln Memorial and dreamed aloud of a day when all Americans would live in a land where they would not be judged by the color of their skin but by the content of their character. We celebrate King's legacy and his dream on Monday of this week. On Tuesday, Barack Obama will be sworn in as the nation's first African-American president.
Has King's dream come true?
It has for the talented tenth, at least insofar as politics is concerned. The color line has been erased in American politics, or so it seems. Sure, racial tensions seethe beneath the surface of this apparent success. But to an extent unthinkable a few short years ago, race is as much a state of mind as a skin color. I imagine Barack Obama's face on a lapel button, a dark silhouette against a sea of white. Beneath his image the words: "What's your excuse?"
Barack's grace makes rap passe. What now for the angry black man? Does P. Diddy now walk into a room and order a Dewars neat?
I am not naive. Race still matters. It always will, but it suddenly seems to matter not nearly so much. At least I hope it matters less.
In the days leading up to and immediately following the election my wife would nervously turn on the television each morning. "Why do you do that?" I asked.
"I want to see if he's dead yet," she replied. She is a gentle soul, but we are old enough to remember King's murder, and the murder of the Kennedys, and cities aflame in anger and grief. Something in us expects the worst. How can we get off so easily as a nation after centuries of slavery, three-fifths of persons, Jim Crow and the thousand and one insults that have become a constant, much like a center of gravity in the psyche even of people of good will?
I did not vote for Obama. And I could not bring myself to vote for McCain. I wrote the name Clarence Darrow on my ballot. He seemed a man of transforming genius; someone I can admire.
But I am now watching Obama with eyes akimbo with wonder. What will he say on Inauguration Day? Will he acknowledge the dawn of a new era? Will he take the day to focus on the still obvious wounds of class that divide us, not just as a nation, but as a world?
I long to hear words of hope. Hope died so long ago for so many of us. What will Obama tell us? Will he say:
"Today a dream is fulfilled and new day dawns. We are a broken vessel. Rich and poor we look to an uncertain future, one filled with doubt about whether we can offer the sustaining hope of prosperity to all. Some have lost homes. Others have lost jobs. The very Earth on which we stand trembles and seems poised to shed us. Nations war against nations, and a world filled with wretched people sighs. Is it time?
"Is it time to put aside the dogmas that divide us? I dream of a day in which the world is a stranger to no man. In which Moslem says to Jew and Jew to Moslem: "Welcome brother." Have we not lingered long enough in sorrow?
"I dream of a day in which a child cast into Africa's bush can eat without fear that today's meal will be her last. Where the world's rich feel poor enough in spirit to shed luxury for humanity. Where no nation feels threatened by the request to live at peace, and in concord under law, with other nations.
"We've boasted now for centuries that we are a City on a Hill. But I tell you, I dream of a day when all nations live on the bountiful plane of prosperity. Where the very Earth that sustains us becomes one world with liberty and justice for all. Is it time for the world to become one?
"Is it time to realize the dream that has for so long lingered in the souls of those with courage to see? Is a new kingdom, the Kingdom of God, now amid us? Can we unite in a common faith born of a shared sense that this world is ours, all of ours?
"I am one man facing a nation on this the day of one dream fulfilled. But I tell you, new dreams must be born today. The future beckons and dares us to hope. I tell you, I believe, and I know that you, too, believe in what is to come. We each need to help one another in our disbelief.
"Tomorrow beckons. It is time to put aside old divisions and to be bold, just as those who came before us long ago were bold. We've never lost the need for heroes and dreamers and men and women with visions that burst the very binds that tried to contain them.
"We are free at last. Free, I tell you of chains that became second skins. Free of ancient hatred. Free of blinders that let us look in only safe and chartered directions. We are free so long as we dream.
"Let us celebrate today. It is a time for joy, and song, and the sweet sound of ancient cymbols. Dance, and make a joyous noise. And when the morrow comes, dream a new dream. A new world is at hand. It is time we create it."
Has King's dream come true?
It has for the talented tenth, at least insofar as politics is concerned. The color line has been erased in American politics, or so it seems. Sure, racial tensions seethe beneath the surface of this apparent success. But to an extent unthinkable a few short years ago, race is as much a state of mind as a skin color. I imagine Barack Obama's face on a lapel button, a dark silhouette against a sea of white. Beneath his image the words: "What's your excuse?"
Barack's grace makes rap passe. What now for the angry black man? Does P. Diddy now walk into a room and order a Dewars neat?
I am not naive. Race still matters. It always will, but it suddenly seems to matter not nearly so much. At least I hope it matters less.
In the days leading up to and immediately following the election my wife would nervously turn on the television each morning. "Why do you do that?" I asked.
"I want to see if he's dead yet," she replied. She is a gentle soul, but we are old enough to remember King's murder, and the murder of the Kennedys, and cities aflame in anger and grief. Something in us expects the worst. How can we get off so easily as a nation after centuries of slavery, three-fifths of persons, Jim Crow and the thousand and one insults that have become a constant, much like a center of gravity in the psyche even of people of good will?
I did not vote for Obama. And I could not bring myself to vote for McCain. I wrote the name Clarence Darrow on my ballot. He seemed a man of transforming genius; someone I can admire.
But I am now watching Obama with eyes akimbo with wonder. What will he say on Inauguration Day? Will he acknowledge the dawn of a new era? Will he take the day to focus on the still obvious wounds of class that divide us, not just as a nation, but as a world?
I long to hear words of hope. Hope died so long ago for so many of us. What will Obama tell us? Will he say:
"Today a dream is fulfilled and new day dawns. We are a broken vessel. Rich and poor we look to an uncertain future, one filled with doubt about whether we can offer the sustaining hope of prosperity to all. Some have lost homes. Others have lost jobs. The very Earth on which we stand trembles and seems poised to shed us. Nations war against nations, and a world filled with wretched people sighs. Is it time?
"Is it time to put aside the dogmas that divide us? I dream of a day in which the world is a stranger to no man. In which Moslem says to Jew and Jew to Moslem: "Welcome brother." Have we not lingered long enough in sorrow?
"I dream of a day in which a child cast into Africa's bush can eat without fear that today's meal will be her last. Where the world's rich feel poor enough in spirit to shed luxury for humanity. Where no nation feels threatened by the request to live at peace, and in concord under law, with other nations.
"We've boasted now for centuries that we are a City on a Hill. But I tell you, I dream of a day when all nations live on the bountiful plane of prosperity. Where the very Earth that sustains us becomes one world with liberty and justice for all. Is it time for the world to become one?
"Is it time to realize the dream that has for so long lingered in the souls of those with courage to see? Is a new kingdom, the Kingdom of God, now amid us? Can we unite in a common faith born of a shared sense that this world is ours, all of ours?
"I am one man facing a nation on this the day of one dream fulfilled. But I tell you, new dreams must be born today. The future beckons and dares us to hope. I tell you, I believe, and I know that you, too, believe in what is to come. We each need to help one another in our disbelief.
"Tomorrow beckons. It is time to put aside old divisions and to be bold, just as those who came before us long ago were bold. We've never lost the need for heroes and dreamers and men and women with visions that burst the very binds that tried to contain them.
"We are free at last. Free, I tell you of chains that became second skins. Free of ancient hatred. Free of blinders that let us look in only safe and chartered directions. We are free so long as we dream.
"Let us celebrate today. It is a time for joy, and song, and the sweet sound of ancient cymbols. Dance, and make a joyous noise. And when the morrow comes, dream a new dream. A new world is at hand. It is time we create it."
Drawing Swords In Connecticut; Appoint Judges For Life
Connecticut does not elect its judges, and for that I am truly grateful. Judges who bow and scrape for approval have a tendency to use their discretion in the service of the lowest common denominator. But every eight years, each judge in Connecticut does face reappointment by lawmakers. And that process is almost as bad as facing election. It would be a far better thing if judges were appointed for life.
Consider the case of Judge Patricia Swords. She is a former state prosecutor. I've appeared before her. Her demeanor is stony. No humor. No sense of a mind at play or a spirit attuned to the human drama of lives hanging in the balance. She sits. She rules. She presides, Sphinx like, staring no doubt into the middle distance of what she perceives to be justice's thicket.
In my view, the law of opposites generally applies in the appointment of judges. Former prosecutors can be a good defense judge; former defense judges might be good prosecution judges. A former prosecutor know from experience when the state is bluffing, just as a former defender knows smoke does not always mean fire.
Judge Swords breaks that mold, according to some. She is a pro-prosecution judge. Or so it is rumbled among the anonymous millworkers of the defense bar. So when she faced confirmation hearings recently, she walked into a buzz saw. One defense lawyer, John Schoenhorn, appeared at her confirmation hearings to complain that seven years ago, in 2002, the judge had not granted a necessary continuance when a client's original counsel fell critically ill. Put another way, the judge abused her discretion by insisting the new counsel proceed immediately.
That is troubling, and it is the sort of stuff of which appeals are made. Schoenhorn, former president of the Connecticut Criminal Defense Lawyers Association, is known to be brash and outspoken. His testimony about a by now ancient incident that even the judge admits was probably an error looked peevish and self-serving.
But Schoenhorn looked like Solon when contrasted to Hartford Senator Eric Coleman. Coleman is a part-time lawyer of middling skill. He told fellow senators that he wanted Sword's hide because she had once jailed a client of his for violating a protective order. The Appellate Court agreed with Coleman, declaring that the judge erred. It was the only one of 25 decisions involving her rulings that led to a reversal. But the Senator is still peeved six years later. Simply put, Coleman doesn't look very senatorial in the role of chief masher of by now old, old, old sour grapes.
Judge Swords was narrowly approved for reappointment to another eight year term. The Senate was evenly divided on the question. It took a tie-breaking vote from the Lieutenant Governor to tip the balance in her favor.
Lawmakers are now wondering whether they need a better way to monitor judges. One leading Democrat wonders whether the time has come for more systematic evaluation of judges. But of what will that evaluation consist? Litmus tests of whether the judges ruled in favor of this client or that? Scorecards on whether a judge has a good demeanor? Will trade association of lawyers now lobby for the judges of their choice, with defenders ratting out pro-prosecution judges, and prosecutors targeting those judges perceived to yield too much to the defense?
I prefer an independent judiciary. Just the other day, I was in chambers discussing a case with the prosecution and a judge. A close call arose, and the judge mentioned his fear of what lawmakers might say years down the road if he made a close call. That's not justice. That's tap-dancing in anticipation of what passions may roil lawmakers. Far better to appoint judges for life. Remove them for high crimes and misdemeanors. To do otherwise is to make judges cower before folks with suspect agendas.
Consider the case of Judge Patricia Swords. She is a former state prosecutor. I've appeared before her. Her demeanor is stony. No humor. No sense of a mind at play or a spirit attuned to the human drama of lives hanging in the balance. She sits. She rules. She presides, Sphinx like, staring no doubt into the middle distance of what she perceives to be justice's thicket.
In my view, the law of opposites generally applies in the appointment of judges. Former prosecutors can be a good defense judge; former defense judges might be good prosecution judges. A former prosecutor know from experience when the state is bluffing, just as a former defender knows smoke does not always mean fire.
Judge Swords breaks that mold, according to some. She is a pro-prosecution judge. Or so it is rumbled among the anonymous millworkers of the defense bar. So when she faced confirmation hearings recently, she walked into a buzz saw. One defense lawyer, John Schoenhorn, appeared at her confirmation hearings to complain that seven years ago, in 2002, the judge had not granted a necessary continuance when a client's original counsel fell critically ill. Put another way, the judge abused her discretion by insisting the new counsel proceed immediately.
That is troubling, and it is the sort of stuff of which appeals are made. Schoenhorn, former president of the Connecticut Criminal Defense Lawyers Association, is known to be brash and outspoken. His testimony about a by now ancient incident that even the judge admits was probably an error looked peevish and self-serving.
But Schoenhorn looked like Solon when contrasted to Hartford Senator Eric Coleman. Coleman is a part-time lawyer of middling skill. He told fellow senators that he wanted Sword's hide because she had once jailed a client of his for violating a protective order. The Appellate Court agreed with Coleman, declaring that the judge erred. It was the only one of 25 decisions involving her rulings that led to a reversal. But the Senator is still peeved six years later. Simply put, Coleman doesn't look very senatorial in the role of chief masher of by now old, old, old sour grapes.
Judge Swords was narrowly approved for reappointment to another eight year term. The Senate was evenly divided on the question. It took a tie-breaking vote from the Lieutenant Governor to tip the balance in her favor.
Lawmakers are now wondering whether they need a better way to monitor judges. One leading Democrat wonders whether the time has come for more systematic evaluation of judges. But of what will that evaluation consist? Litmus tests of whether the judges ruled in favor of this client or that? Scorecards on whether a judge has a good demeanor? Will trade association of lawyers now lobby for the judges of their choice, with defenders ratting out pro-prosecution judges, and prosecutors targeting those judges perceived to yield too much to the defense?
I prefer an independent judiciary. Just the other day, I was in chambers discussing a case with the prosecution and a judge. A close call arose, and the judge mentioned his fear of what lawmakers might say years down the road if he made a close call. That's not justice. That's tap-dancing in anticipation of what passions may roil lawmakers. Far better to appoint judges for life. Remove them for high crimes and misdemeanors. To do otherwise is to make judges cower before folks with suspect agendas.
Saturday, January 17, 2009
The Parable Project: The Bridesmaids
The bridesmaids' parable, also known as the ten virgins, is reported in Matthew's gospel.
I am simultaneously drawn and repelled. Simple virtue would suggest sharing. Who would expect such niggardly behavior by the groom. When is he to arrive? There is no telling. One needn't always be wakeful, need one?
And what of bringing oil? Simple prudence suggests that one would bring fuel to light a lamp. In our day this might be the equivalent of bringing a flashlight but no battery.
Even so, the bridegroom does not come off well here. "I do not know you" is a harsh response in the face of simple imprudence. If the parable warns against complacency in the face of experience, I can accept the warning without the heavy-handed reaction of the fickle bridegroom.
"At that time the kingdom of heaven will be like ten virgins who took their lamps and went out to meet the bridegroom. Five of them were foolish and five were wise. The foolish ones took their lamps but did not take any oil with them. The wise, however, took oil in jars along with their lamps. The bridegroom was a long time in coming, and they all became drowsy and fell asleep.
"At midnight the cry rang out: 'Here's the bridegroom! Come out to meet him!'
"Then all the virgins woke up and trimmed their lamps. The foolish ones said to the wise, 'Give us some of your oil; our lamps are going out.'
" 'No,' they replied, 'there may not be enough for both us and you. Instead, go to those who sell oil and buy some for yourselves.'
"But while they were on their way to buy the oil, the bridegroom arrived. The virgins who were ready went in with him to the wedding banquet. And the door was shut.
"Later the others also came. 'Sir! Sir!' they said. 'Open the door for us!'
"But he replied, 'I tell you the truth, I don't know you.'
"Therefore keep watch, because you do not know the day or the hour."
I am simultaneously drawn and repelled. Simple virtue would suggest sharing. Who would expect such niggardly behavior by the groom. When is he to arrive? There is no telling. One needn't always be wakeful, need one?
And what of bringing oil? Simple prudence suggests that one would bring fuel to light a lamp. In our day this might be the equivalent of bringing a flashlight but no battery.
Even so, the bridegroom does not come off well here. "I do not know you" is a harsh response in the face of simple imprudence. If the parable warns against complacency in the face of experience, I can accept the warning without the heavy-handed reaction of the fickle bridegroom.
"At that time the kingdom of heaven will be like ten virgins who took their lamps and went out to meet the bridegroom. Five of them were foolish and five were wise. The foolish ones took their lamps but did not take any oil with them. The wise, however, took oil in jars along with their lamps. The bridegroom was a long time in coming, and they all became drowsy and fell asleep.
"At midnight the cry rang out: 'Here's the bridegroom! Come out to meet him!'
"Then all the virgins woke up and trimmed their lamps. The foolish ones said to the wise, 'Give us some of your oil; our lamps are going out.'
" 'No,' they replied, 'there may not be enough for both us and you. Instead, go to those who sell oil and buy some for yourselves.'
"But while they were on their way to buy the oil, the bridegroom arrived. The virgins who were ready went in with him to the wedding banquet. And the door was shut.
"Later the others also came. 'Sir! Sir!' they said. 'Open the door for us!'
"But he replied, 'I tell you the truth, I don't know you.'
"Therefore keep watch, because you do not know the day or the hour."
Friday, January 16, 2009
The Parable Project: The Barren Fig Tree
Trial lawyers are storytellers. But even more, the lives we live become stories. They become stories as we narrate their content. We seek meaning in these narratives, and philosophers, poets and theologians devise theories and means to sort experience into forms that make narrative sense. This much is obvious.
What is not so obvious is whether we have any real choice in the matter. None of us willed ourselves into being. We find ourselves present in the world. Something like an imperative bids us to make sense of things. Trial lawyers do so on behalf of clients who find themselves at turning points, or crises, in their lives. Yet the lawyer is no different than the client. We all live our turning points day to day.
I'm starting a new project on this web page. I will call it the Parable Project. It is a reflection of re-examination of parables attributed to Jesus.
I am aware of the controversial character of the claims about Jesus. For decades I have scorned the very name as a sign of tepid Sunday school ethics. As an adolescent, I was passionate for a time about the New Testament. The desire to know God was keen. But as a young adult, I turned a hard heart to such claims, and yielded in the end to what Kierkegaard referred to as the "sickness unto death," or despair.
But despair is too easy. Life evokes a response; if not my own life, than surely the life of the client whose life becomes my responsibility. There is no escaping what Yeats taught. "Man can embody truth but he cannot know it."
Well along life's way I am reassessing the historical Jesus with no real intent other than to discover what I can about an extraordinary life. Reliable information about him is hard to come by. But the question of his life's meaning seems everywhere and nowhere, all at once. Certainly the parables attributed to him are a good start. And they are fixed points in our literary heritage.
John Dominic Crossan's, In Parables: The Challenge of the Historical Jesus, is a difficult point of departure for students of parables. A theologian well versed in both modern philosopy and literary criticism, Crossan writes in sometimes dense and impenetrable prose. (Can it be otherwise for a man who admires Heidegger?) Yet from time to time, he reflects the bright light of genius.
He reminds us that not all parables carry morals examples. There is not, in other words, a moral point to every story, even if there is, so to speak, a moral. Pressing for such trivializes, and closes the interpretation of a narrative into tight wraps that keep light from entering. The parable of the barren fig tree as reported by the Gospel of Luke is perhaps such a parable.
Here it is, as reported by Luke's Gospel:
"‘A man had a fig tree planted in his vineyard; and he came looking for fruit on it and found none. So he said to the gardener, “See here! For three years I have come looking for fruit on this fig tree, and still I find none. Cut it down! Why should it be wasting the soil?” He replied, “Sir, let it alone for one more year, until I dig round it and put manure on it. If it bears fruit next year, well and good; but if not, you can cut it down.” ’
On its face, this story seems trite, too commonplace even to merit preservation. Yet here it is, passed along and regarded by many as holy scripture for centuries. I read the words of the parables and my understanding is cold. What truth does it embody?
What is not so obvious is whether we have any real choice in the matter. None of us willed ourselves into being. We find ourselves present in the world. Something like an imperative bids us to make sense of things. Trial lawyers do so on behalf of clients who find themselves at turning points, or crises, in their lives. Yet the lawyer is no different than the client. We all live our turning points day to day.
I'm starting a new project on this web page. I will call it the Parable Project. It is a reflection of re-examination of parables attributed to Jesus.
I am aware of the controversial character of the claims about Jesus. For decades I have scorned the very name as a sign of tepid Sunday school ethics. As an adolescent, I was passionate for a time about the New Testament. The desire to know God was keen. But as a young adult, I turned a hard heart to such claims, and yielded in the end to what Kierkegaard referred to as the "sickness unto death," or despair.
But despair is too easy. Life evokes a response; if not my own life, than surely the life of the client whose life becomes my responsibility. There is no escaping what Yeats taught. "Man can embody truth but he cannot know it."
Well along life's way I am reassessing the historical Jesus with no real intent other than to discover what I can about an extraordinary life. Reliable information about him is hard to come by. But the question of his life's meaning seems everywhere and nowhere, all at once. Certainly the parables attributed to him are a good start. And they are fixed points in our literary heritage.
John Dominic Crossan's, In Parables: The Challenge of the Historical Jesus, is a difficult point of departure for students of parables. A theologian well versed in both modern philosopy and literary criticism, Crossan writes in sometimes dense and impenetrable prose. (Can it be otherwise for a man who admires Heidegger?) Yet from time to time, he reflects the bright light of genius.
He reminds us that not all parables carry morals examples. There is not, in other words, a moral point to every story, even if there is, so to speak, a moral. Pressing for such trivializes, and closes the interpretation of a narrative into tight wraps that keep light from entering. The parable of the barren fig tree as reported by the Gospel of Luke is perhaps such a parable.
Here it is, as reported by Luke's Gospel:
"‘A man had a fig tree planted in his vineyard; and he came looking for fruit on it and found none. So he said to the gardener, “See here! For three years I have come looking for fruit on this fig tree, and still I find none. Cut it down! Why should it be wasting the soil?” He replied, “Sir, let it alone for one more year, until I dig round it and put manure on it. If it bears fruit next year, well and good; but if not, you can cut it down.” ’
On its face, this story seems trite, too commonplace even to merit preservation. Yet here it is, passed along and regarded by many as holy scripture for centuries. I read the words of the parables and my understanding is cold. What truth does it embody?
Thursday, January 15, 2009
A Word On Parables
A perhaps liberating take on Jesus's parables.
"A parabolic reading insists that the importance of these stories lies in their meanings. An empty tomb without meaning ascribed to it is simply an odd, even if exceptional, event. Only when the meaning is ascribed does it take on significance. This is the function of parable and parabolic language. Parable can be based on an actual event (there could have been a Samaritan who did what the character in Jesus's parable is reported to have done), but it need not be. Indeed, it may be that the most important truths can be expressed only in parable.
"In any case, asking about the parabolic meaning of biblical stories, including the Easter stories, is always the most important question. The alternative of fixating on whether they report literally factual happenings leads one astray."
Marcus Borg, Jesus: Uncovering the Life, Teachings, and Relevance of a Religious Revolutionary.
"A parabolic reading insists that the importance of these stories lies in their meanings. An empty tomb without meaning ascribed to it is simply an odd, even if exceptional, event. Only when the meaning is ascribed does it take on significance. This is the function of parable and parabolic language. Parable can be based on an actual event (there could have been a Samaritan who did what the character in Jesus's parable is reported to have done), but it need not be. Indeed, it may be that the most important truths can be expressed only in parable.
"In any case, asking about the parabolic meaning of biblical stories, including the Easter stories, is always the most important question. The alternative of fixating on whether they report literally factual happenings leads one astray."
Marcus Borg, Jesus: Uncovering the Life, Teachings, and Relevance of a Religious Revolutionary.
A Tax On Legal Services? Fees Will Rise
Estimates of Connecticut’s budget deficit for the current fiscal year range from about $200 million to more than $350 million. No wonder lawmakers are looking everywhere they can for extra tax dollars.
The Connecticut Bar Association fears that lawmakers may be looking to tax legal services. That makes about as much sense as selling life preservers on a sinking ship: All that will be accomplished is more deaths by drowning.
I suppose the new tax will work something like this: A client pays a retainer of $10,000 for representation in a felony case. You take the money and assess the new tax. Let’s say it is a two percent tax. My fee for that same case will now rise by at least $200.
But is that enough? Not really. I will need to train staff to fill out forms. My accountant will need to audit compliance and, perhaps, prepare quarterly reports. New paper trails will need to be blazed and groomed.
So rather than raise rates by two percent, I’d better raise them some to account for additional time and expense of compliance. Add another two percent, or make it now $10,400. But that’s an awfward number, so $10,500 it is.
The point is a simple one. A tax on services will be transferred to clients, thus driving up the cost of legal services.
Frankly, I’ve already raised rates to accommodate the new changes in the Rules of Professional Conduct. There is no end to the grief many clients face, and with heightened communication requirements, more time needs to be spent on each file. That means fewer clients, as the cost of running a practice is not decreasing.
I realize this may sound like sour grapes. But it really isn’t. Consider the hidden costs of a criminal case.
First, you agree to represent someone up to and including trial. That much is simple to forecast. Some trials take longer than others. That’s life. But sometimes the court system throws a curve ball or two. I recently had a case called for trial three times. We had to prepare three times. In two instances the case was continued the day evidence was to begin. The client was unwilling to replenish the retainer. That’s also life.
But then there is the cost of keeping a copy of the file. Should the trial not work out as planned, there is a Sentence Review hearing, which is mandatory for trial counsel. Should the client really get hammered, expect a habeas. Six, seven, eight, ten years down the road you’ll be on the stand testifying at your own expense. And let’s not forget all the phone calls from mom, dad, sister and brother that are expected to be answered. Lawyer beware, I say.
I do not oppose an increase in the attorney occupational tax, however. That is a one-time deal, and there are no administrative costs. The money should go to legal assistance, which is a great cause. Press reports relay that funding cut backs to these lawyers have them working second jobs.
Of course, the real solution to the problem of legal services is one we don’t have the courage to enact. I say every person charged with a crime should have a right to a public defender. There is no reason why lower-middle class and middle-class families should be ruined by legal expenses. And if lawmakers had to fund defense as well as prosecution they might be a whole lot less trigger happy when it comes to enacting new laws. The well-heeled can always opt out and hire private counsel.
And on the civil side, I say revise the American rule. Require the loser to bear court costs. Requiring litigants and their counsel to reckon the cost of an action might screen cases of questionable merit. Folks without means could apply for a waiver.
Times are tough and set to get tougher, I hear. Maybe this is a good time to think about how and when we pay for legal fees.
Reprinted courtesy of The Connecticut Law Tribune.
The Connecticut Bar Association fears that lawmakers may be looking to tax legal services. That makes about as much sense as selling life preservers on a sinking ship: All that will be accomplished is more deaths by drowning.
I suppose the new tax will work something like this: A client pays a retainer of $10,000 for representation in a felony case. You take the money and assess the new tax. Let’s say it is a two percent tax. My fee for that same case will now rise by at least $200.
But is that enough? Not really. I will need to train staff to fill out forms. My accountant will need to audit compliance and, perhaps, prepare quarterly reports. New paper trails will need to be blazed and groomed.
So rather than raise rates by two percent, I’d better raise them some to account for additional time and expense of compliance. Add another two percent, or make it now $10,400. But that’s an awfward number, so $10,500 it is.
The point is a simple one. A tax on services will be transferred to clients, thus driving up the cost of legal services.
Frankly, I’ve already raised rates to accommodate the new changes in the Rules of Professional Conduct. There is no end to the grief many clients face, and with heightened communication requirements, more time needs to be spent on each file. That means fewer clients, as the cost of running a practice is not decreasing.
I realize this may sound like sour grapes. But it really isn’t. Consider the hidden costs of a criminal case.
First, you agree to represent someone up to and including trial. That much is simple to forecast. Some trials take longer than others. That’s life. But sometimes the court system throws a curve ball or two. I recently had a case called for trial three times. We had to prepare three times. In two instances the case was continued the day evidence was to begin. The client was unwilling to replenish the retainer. That’s also life.
But then there is the cost of keeping a copy of the file. Should the trial not work out as planned, there is a Sentence Review hearing, which is mandatory for trial counsel. Should the client really get hammered, expect a habeas. Six, seven, eight, ten years down the road you’ll be on the stand testifying at your own expense. And let’s not forget all the phone calls from mom, dad, sister and brother that are expected to be answered. Lawyer beware, I say.
I do not oppose an increase in the attorney occupational tax, however. That is a one-time deal, and there are no administrative costs. The money should go to legal assistance, which is a great cause. Press reports relay that funding cut backs to these lawyers have them working second jobs.
Of course, the real solution to the problem of legal services is one we don’t have the courage to enact. I say every person charged with a crime should have a right to a public defender. There is no reason why lower-middle class and middle-class families should be ruined by legal expenses. And if lawmakers had to fund defense as well as prosecution they might be a whole lot less trigger happy when it comes to enacting new laws. The well-heeled can always opt out and hire private counsel.
And on the civil side, I say revise the American rule. Require the loser to bear court costs. Requiring litigants and their counsel to reckon the cost of an action might screen cases of questionable merit. Folks without means could apply for a waiver.
Times are tough and set to get tougher, I hear. Maybe this is a good time to think about how and when we pay for legal fees.
Reprinted courtesy of The Connecticut Law Tribune.
Wednesday, January 14, 2009
Unreasonable Dicta -- Or Why Herring Stinks
Much in the law turns on the mental state of the the parties involved in a dispute. Three mental states matter both in terms of the criminal law and civil rights law: intent, recklessness and negligence. Confusing these can yield disastrous consequences.
Today's United States Supreme Court decision in Herring v. United States is illustrative. A police department reported that there was an arrest warrant for a man named Bennie Dean Herring. As a result, he was arrested and searched. Police found drugs and a gun on his person. Because Herring was already a convicted felon, he was convicted of drug and firearms charges.
But Mr. Herring's arrest was unlawful, the Court noted. It turns out there was no arrest warrant outstanding for Mr. Herring. There had not been such a warrant for five months; the warrant had been recalled almost immediately after it was issued. No one at the police department noticed or removed the bad warrant from its database. Bottom line? Herring should never have been arrested. And, had he not been arrested, he would not have lawfully been searched.
Mr. Herring moved to suppress the evidence arising from unlawful arrest. The District Court denied his motion, so he took an appeal to the Eleventh Circuit Court of Appeals. That court stumbled some with its words. It described the police failure to remove a bad warrant from its database as "at the very least negligence." It then went on to say the error was "a negligent failure to act, not a deliberate or tactical choice to act."
From these casual words, the Supreme Court sculpted a new limitation on the requirement that evidence seized as a result of a Fourth Amendment violation be suppressed. When cops are merely negligent, suppression isn't required. It is another in a series of 5-4 decisions of great constitutional import.
Intentional acts are those purposely done; the actor has a conscious objective in mind, such as to rape, pillage, plunder or seize evidence regardless of the law's limits. Reckless acts are those unjustifiably done knowing full well that there is an substantial risk of harm. Finally, a negligent act is one done without due regard for care we expect of folks under normal circumstance. Like it or not, these are lodestars in the law; lawyers and judges learn to navigate them through teethbreaking struggles over how best to assess and characterize life's chaos.
So what would you call a police department's failure to notice that it was holding a stale arrest warrant for five months? Understand that the significance of this act means that should the police ever confront the person for whom the warrant is maintained, whether it be at a routine traffice stop or otherwise, they will regard the warrant as a court order requiring an arrest. There is at least a powerful argument that a data entry system that fails to notice for five months that it carries an invalid order to arrest someone is reckless -- an innocent man can be harmed. This is more than a bookkeeping error.
The suppression of evidence unlawfully obtained is controversial. The words suppression do not appear in the Constitution; hence necromancers in love with the intentions of the framers cry foul. But the doctrine does serve as a powerful deterrent and incentive to Government to get it right. When we say that mere carelessness resulting in unlawful arrests is all right, it sounds a lot like telling surgeons that handwashing is merely optional.
Most troubling about the Herring decision is its reliance on the casual language of the Eleventh Circuit. That appeals court never held that the police conduct was mere negligence. It merely asserted that the conduct was not deliberate, i.e., intentional, or tactical. Referring to the conduct as "at the very least negligent" is what lawyers call dicta, language perhaps necessary to make a larger point, but not what a case stands for. One reason legal education takes a few years is that it takes time to distinguish mere dicta from a case's holding.
Herring looks an awful lot like a case decided on the basis of dicta. It is one thing to say that negligence is not enough to support suppression of negligence. It is quite another thing to rely on a throw away remark by an appellate court to conclude that a stale warrant was kept alive as a result of mere carelessness.
The better course would have been to remand to the trial court with instructions to make a finding about mental state of those officers, and the real tortfeasor is as yet unnamed, involved. This was too important an issue to be decided on the fly. Did the court really mean to suggest that when the police hold a bad warrant for five months and a person is harmed, all is well in this the best of all possible worlds?
Today's United States Supreme Court decision in Herring v. United States is illustrative. A police department reported that there was an arrest warrant for a man named Bennie Dean Herring. As a result, he was arrested and searched. Police found drugs and a gun on his person. Because Herring was already a convicted felon, he was convicted of drug and firearms charges.
But Mr. Herring's arrest was unlawful, the Court noted. It turns out there was no arrest warrant outstanding for Mr. Herring. There had not been such a warrant for five months; the warrant had been recalled almost immediately after it was issued. No one at the police department noticed or removed the bad warrant from its database. Bottom line? Herring should never have been arrested. And, had he not been arrested, he would not have lawfully been searched.
Mr. Herring moved to suppress the evidence arising from unlawful arrest. The District Court denied his motion, so he took an appeal to the Eleventh Circuit Court of Appeals. That court stumbled some with its words. It described the police failure to remove a bad warrant from its database as "at the very least negligence." It then went on to say the error was "a negligent failure to act, not a deliberate or tactical choice to act."
From these casual words, the Supreme Court sculpted a new limitation on the requirement that evidence seized as a result of a Fourth Amendment violation be suppressed. When cops are merely negligent, suppression isn't required. It is another in a series of 5-4 decisions of great constitutional import.
Intentional acts are those purposely done; the actor has a conscious objective in mind, such as to rape, pillage, plunder or seize evidence regardless of the law's limits. Reckless acts are those unjustifiably done knowing full well that there is an substantial risk of harm. Finally, a negligent act is one done without due regard for care we expect of folks under normal circumstance. Like it or not, these are lodestars in the law; lawyers and judges learn to navigate them through teethbreaking struggles over how best to assess and characterize life's chaos.
So what would you call a police department's failure to notice that it was holding a stale arrest warrant for five months? Understand that the significance of this act means that should the police ever confront the person for whom the warrant is maintained, whether it be at a routine traffice stop or otherwise, they will regard the warrant as a court order requiring an arrest. There is at least a powerful argument that a data entry system that fails to notice for five months that it carries an invalid order to arrest someone is reckless -- an innocent man can be harmed. This is more than a bookkeeping error.
The suppression of evidence unlawfully obtained is controversial. The words suppression do not appear in the Constitution; hence necromancers in love with the intentions of the framers cry foul. But the doctrine does serve as a powerful deterrent and incentive to Government to get it right. When we say that mere carelessness resulting in unlawful arrests is all right, it sounds a lot like telling surgeons that handwashing is merely optional.
Most troubling about the Herring decision is its reliance on the casual language of the Eleventh Circuit. That appeals court never held that the police conduct was mere negligence. It merely asserted that the conduct was not deliberate, i.e., intentional, or tactical. Referring to the conduct as "at the very least negligent" is what lawyers call dicta, language perhaps necessary to make a larger point, but not what a case stands for. One reason legal education takes a few years is that it takes time to distinguish mere dicta from a case's holding.
Herring looks an awful lot like a case decided on the basis of dicta. It is one thing to say that negligence is not enough to support suppression of negligence. It is quite another thing to rely on a throw away remark by an appellate court to conclude that a stale warrant was kept alive as a result of mere carelessness.
The better course would have been to remand to the trial court with instructions to make a finding about mental state of those officers, and the real tortfeasor is as yet unnamed, involved. This was too important an issue to be decided on the fly. Did the court really mean to suggest that when the police hold a bad warrant for five months and a person is harmed, all is well in this the best of all possible worlds?
Tuesday, January 13, 2009
The Vanishing Trial: Are Reasonable Minds To Blame?
We have 24 cases ready for trial in my firm. About half of these are civil cases, and most of those are suits against state actors accused of violating a person's civil rights. That might not sound like a lot to you, but consider that in order to get on that list, a case must either be at a point where plea negotiations have broken down or, on the civil side, where discovery is closed and the case has survived every effort to have it thrown out of court. Standing on line behind the trial ready cases are another 70 or so hoping to get there.
So it matters to me a great deal when a case simply lingers on a list of cases requiring judicial attention, and not getting any. My clients get edgy. "What's going on? they ask. "Nothing," I reply. I once told a client that if they wanted to know why their case lingered in limbo, they should call the judge's chambers. They did.
It matters a great deal when I hear judges talk about the so-called vanishing trial. Want to get it on? Give us a call. We have four lawyers chomping at the bit.
The vanishing trial is a staple of that genre known as the judicial thumb-sucker. Journalists know the phrase. A piece on what it is like to do a job that isn't getting done. Some editors call the material filler.
Among the causes of the vanishing trial are cited the following: the enormous costs of trial, for both plaintiff and defendant; risk-averse clients; and, an increase in the number of pre-trial methods used to dispose of cases short of trial, including such things as alternative dispute resolution, mediation and arbitration. All are valid points. But I suspect there is another reason cases aren't getting to trial, and it has to do with the socialization of lawyers.
The great unstated assumption of a three-year legal education is that the world is composed of a community of reasonable minds. We are taught to bargain in the law's shadow as though there were but one source of light illuminating the world, the sweet light of reason. Most often, however, clients bargain in the darkness created by their own shadows; those shadows are internally generated and are often the product of expectations and visions that are not shared, but arise from the ragged edges on which most folk live.
Enormous pressure is put on lawyers on both the criminal and civil side to settle cases. The unstated belief is that reasonable lawyers can always come to terms. It is the clients whose discordant voices and needs muck up a perfectly good and, in theory, perfectably transparent process.
I wonder about this pressure and whether it creates a bias against trial as a means of resolving disputes. Is the need for trial viewed as a failure of reason, and, as such, are obstacles place in the way of trial in order to avoid rewarding the irrational? It certainly seems that way.
We boast that the jury trial is a jewel in the nation's crown, but then we seek to avoid it all costs. Is that because at heart we still harbor Platonic illusions, to wit: there exists a world of transcendent norms discernable by reason? Reality counsels otherwise.
Requesting a jury trial may not be a sign of dysfunction. It may be the best means of resolving conflict that we can fathom. Let ordinary people decide conflicts. Isn't that the theory? Or is the new unstated theory that we elites of chaos, lawyers schooled in despair and judges sitting as top officers of the courts, know best? In another piece I will explore the role that laws against jury nullification may play in this process.
So it matters to me a great deal when a case simply lingers on a list of cases requiring judicial attention, and not getting any. My clients get edgy. "What's going on? they ask. "Nothing," I reply. I once told a client that if they wanted to know why their case lingered in limbo, they should call the judge's chambers. They did.
It matters a great deal when I hear judges talk about the so-called vanishing trial. Want to get it on? Give us a call. We have four lawyers chomping at the bit.
The vanishing trial is a staple of that genre known as the judicial thumb-sucker. Journalists know the phrase. A piece on what it is like to do a job that isn't getting done. Some editors call the material filler.
Among the causes of the vanishing trial are cited the following: the enormous costs of trial, for both plaintiff and defendant; risk-averse clients; and, an increase in the number of pre-trial methods used to dispose of cases short of trial, including such things as alternative dispute resolution, mediation and arbitration. All are valid points. But I suspect there is another reason cases aren't getting to trial, and it has to do with the socialization of lawyers.
The great unstated assumption of a three-year legal education is that the world is composed of a community of reasonable minds. We are taught to bargain in the law's shadow as though there were but one source of light illuminating the world, the sweet light of reason. Most often, however, clients bargain in the darkness created by their own shadows; those shadows are internally generated and are often the product of expectations and visions that are not shared, but arise from the ragged edges on which most folk live.
Enormous pressure is put on lawyers on both the criminal and civil side to settle cases. The unstated belief is that reasonable lawyers can always come to terms. It is the clients whose discordant voices and needs muck up a perfectly good and, in theory, perfectably transparent process.
I wonder about this pressure and whether it creates a bias against trial as a means of resolving disputes. Is the need for trial viewed as a failure of reason, and, as such, are obstacles place in the way of trial in order to avoid rewarding the irrational? It certainly seems that way.
We boast that the jury trial is a jewel in the nation's crown, but then we seek to avoid it all costs. Is that because at heart we still harbor Platonic illusions, to wit: there exists a world of transcendent norms discernable by reason? Reality counsels otherwise.
Requesting a jury trial may not be a sign of dysfunction. It may be the best means of resolving conflict that we can fathom. Let ordinary people decide conflicts. Isn't that the theory? Or is the new unstated theory that we elites of chaos, lawyers schooled in despair and judges sitting as top officers of the courts, know best? In another piece I will explore the role that laws against jury nullification may play in this process.
Truth, Lies and Focus Groups
I start trial in about ten days. The facts are gruesome. A mother driving home with her three young children is involved in a head-on collision with another car. Two of the mother's children are killed on impact; she and the surviving child are seriously injured. The driver and passenger of the the other vehicle suffer moderate injuries.
An ambulance driver smells alcohol at the scene. "Have you had anything to drink?' "Plenty," my client responds. A blood alcohol test at the hospital yields a result over the legal limit. And witnesses to the crash say she drove erratically. The point of impact between the two cars is jury over the dividing line, and not in my client's favor. These are the bad facts.
My client had one beer at a family picnic five hours before the crash: More than a dozen witnesses at the picnic will so testify. She has no recall of saying anything to the ambulance driver. The crash took place when it was dark and in a driving rain. The road merged into two lanes just before the crash location. And, hospital records reflect that the blood tests were not for "legal use." Indeed, the operating manuals for the testing device require confirming tests by other means. No tests were done.
The state wants her to do prison time, and plead to a felony. That strikes me as obscene. Her daughter needs her. The woman is no killer. At her worst, she made a mistake. She is attractive, articulate, and in all respects an ideal witness.
We've tried to negotiate for more than a year, but now lines are drawn.
We're not using a jury consultant in the case. I've never used one. I wonder about lawyers who do. Jury selection really comes down to one thing and one thing only: bounce. We all know what that is. You walk into a room full of strangers and mingle. In some cases, there is no connection with the stranger at your elbow. That is called a peremptory challenge. Some folks rub you the wrong way for reasons you can identify and put into words. Those are challenges for cause. And then there are folks who will listen, and who seem to give a little of themselves in response to your disclosures: Those are jurors.
We will use a focus group in this case, however. In a focus group, randomly suggested strangers are presented with various themes and elements of a case. Then you watch how they react. What metaphors come to the minds of people who have no lived with a case for months? What themes press hot buttons you missed? There is some value to this. (The impressions collected at such sessions are work product.)
As I prepare for a focus group this morning, I came across the following site: http://tvtropes.org/pmwiki/pmwiki.php/Main/TruthAndLies. I recommend it as a means of quickly cataloging the rhetorical devices used on television. My wife and I rarely watch television, and I wonder whether that makes me a less effective lawyer. It is a ready lexicon of terms and tropes.
The only thing we do watch is college football. In the ads during the season's final games, I noticed an advertisement for a show about a fellow who can tell you are lying merely by watching your body language. (Lie to Me, on Fox, starting January 21) I shuddered when I saw this. Will it be the new CSI-effect? Every juror now an expert on truth?
Perhaps it is time to make more time in the day and get the education my jurors are receiving each night.
An ambulance driver smells alcohol at the scene. "Have you had anything to drink?' "Plenty," my client responds. A blood alcohol test at the hospital yields a result over the legal limit. And witnesses to the crash say she drove erratically. The point of impact between the two cars is jury over the dividing line, and not in my client's favor. These are the bad facts.
My client had one beer at a family picnic five hours before the crash: More than a dozen witnesses at the picnic will so testify. She has no recall of saying anything to the ambulance driver. The crash took place when it was dark and in a driving rain. The road merged into two lanes just before the crash location. And, hospital records reflect that the blood tests were not for "legal use." Indeed, the operating manuals for the testing device require confirming tests by other means. No tests were done.
The state wants her to do prison time, and plead to a felony. That strikes me as obscene. Her daughter needs her. The woman is no killer. At her worst, she made a mistake. She is attractive, articulate, and in all respects an ideal witness.
We've tried to negotiate for more than a year, but now lines are drawn.
We're not using a jury consultant in the case. I've never used one. I wonder about lawyers who do. Jury selection really comes down to one thing and one thing only: bounce. We all know what that is. You walk into a room full of strangers and mingle. In some cases, there is no connection with the stranger at your elbow. That is called a peremptory challenge. Some folks rub you the wrong way for reasons you can identify and put into words. Those are challenges for cause. And then there are folks who will listen, and who seem to give a little of themselves in response to your disclosures: Those are jurors.
We will use a focus group in this case, however. In a focus group, randomly suggested strangers are presented with various themes and elements of a case. Then you watch how they react. What metaphors come to the minds of people who have no lived with a case for months? What themes press hot buttons you missed? There is some value to this. (The impressions collected at such sessions are work product.)
As I prepare for a focus group this morning, I came across the following site: http://tvtropes.org/pmwiki/pmwiki.php/Main/TruthAndLies. I recommend it as a means of quickly cataloging the rhetorical devices used on television. My wife and I rarely watch television, and I wonder whether that makes me a less effective lawyer. It is a ready lexicon of terms and tropes.
The only thing we do watch is college football. In the ads during the season's final games, I noticed an advertisement for a show about a fellow who can tell you are lying merely by watching your body language. (Lie to Me, on Fox, starting January 21) I shuddered when I saw this. Will it be the new CSI-effect? Every juror now an expert on truth?
Perhaps it is time to make more time in the day and get the education my jurors are receiving each night.
Monday, January 12, 2009
To Plead Or Not To Plead?
It was a close call this morning. My client was accused of sexually abusing a minor by digitally penetrating her vagina. The child was five at the time. She claims it happened; my client denied it. There was no physical evidence to corroborate the child's claim. So we prepared for trial.
On the eve of evidence, a compromise was struck. My client would plead to a misdemeanor, and we would admit to no sexual misconduct. He will briefly be on probation. If a probation officer tries to require him to take sex offender classes, we can withdraw the plea. I feel pretty good about the outcome, although I am still pretty confident I would have won the trial.
In the end, it came down to this: I thought I would win the trial. If I did, no harm to the client. An acquittal and we both walk out the door happy men. But against the substantial risk of a loss, we agreed to a plea under the Alford doctrine, which permits a client to enter a plea of guilty without admitting the underlying conduct. The client merely acknowledges the risk of a guilty verdict and a desire to take the deal offered.
Is this justice? Plenty of people say pleas violate the spirit of the law. Hold the state to its burden of proof, we are encouraged. Besides, all the glamor is in trial. When is the last time you watched a legal thriller that ended with a decision to end a plea? Plea bargaining is the law's coitus interruptus.
But in this case, the plea makes sense. There are four harms to avoid for a client faced with a sex offense: The risk of a disabling felony conviction; the risk of incarceration; the risk of being required to register as a sex offender; and, the risk of being required to undergo sex offender treatment. In this case, we avoided all four, a clean sweep.
I cannot count this case a win, however. Neither do I regard it as a loss. The client is safe and satisfied in a let-down sort of way. I remind myself at times such as these that it is all about the client. By analogy: In this piece of social oncology the cancer was beaten back with a modest dose of chemotherapy. Case closed.
On the eve of evidence, a compromise was struck. My client would plead to a misdemeanor, and we would admit to no sexual misconduct. He will briefly be on probation. If a probation officer tries to require him to take sex offender classes, we can withdraw the plea. I feel pretty good about the outcome, although I am still pretty confident I would have won the trial.
In the end, it came down to this: I thought I would win the trial. If I did, no harm to the client. An acquittal and we both walk out the door happy men. But against the substantial risk of a loss, we agreed to a plea under the Alford doctrine, which permits a client to enter a plea of guilty without admitting the underlying conduct. The client merely acknowledges the risk of a guilty verdict and a desire to take the deal offered.
Is this justice? Plenty of people say pleas violate the spirit of the law. Hold the state to its burden of proof, we are encouraged. Besides, all the glamor is in trial. When is the last time you watched a legal thriller that ended with a decision to end a plea? Plea bargaining is the law's coitus interruptus.
But in this case, the plea makes sense. There are four harms to avoid for a client faced with a sex offense: The risk of a disabling felony conviction; the risk of incarceration; the risk of being required to register as a sex offender; and, the risk of being required to undergo sex offender treatment. In this case, we avoided all four, a clean sweep.
I cannot count this case a win, however. Neither do I regard it as a loss. The client is safe and satisfied in a let-down sort of way. I remind myself at times such as these that it is all about the client. By analogy: In this piece of social oncology the cancer was beaten back with a modest dose of chemotherapy. Case closed.
Confession Good For The Soul? Perhaps. But It Is Hell In A Courtroom
The following is an excerpt from Clarence Darrow in Hell, a play written by Kenan Heise and Dan Heise. In this scene, Darrow is accompanied by none other than Dante. Darrow has refused to confess his sins at the gates of Hell. He disputes now with Charon the need for such a confession. Indeed, he is rallying souls afloat in Acheron, awaiting transport to Hell, to revolt.
"In the American courtroom, the man who is eager to be condemned is told to sit down and is advised of his rights. Through both the police and his lawyers he learns that he must let the system grind in his defense. His eagerness for self-recrimination and self-blame is not taken into consideration by the court. His confession is considered only part of the evidence. I urge you souls who feel so guilty, endure your sense of guilt and recrimination. Demand that you have your full day in court. Stifle yourselves. You have given up hope by entering the gates of hell, but do not sacrifice yourselves out of guilt or remorse."
Wise words. But is Darrow counseling against plea bargaining here?
Of course not. Darrow understood the case and consequences belong to the client. He plead the McNamara brothers guilty in the bombing the of Los Angeles Times building when it became apparaent that the case against them was overwhelming. And in the Leopold and Loeb murder case, a quick guilty plea set the stage for a sentencing phase that changed perceptions about the role of mental disease and defect in our law. There are times when a client's interest and sound tactics result in a plea.
But Darrow here stands at the gates of Hell. He sees folks with cases that cannot be won. Like Satan in Paradise Lost, Darrow knows his case cannot be won. But he knows more. He knows that regardless of the plea, the fate is damnation. Better to defy in such case. Abandon hope all ye who enter? Perhaps. But do not yield in such a case without a fight. Otherwise, the only thing left, integrity, is lost.
Whether there is a lesson for lawyers in this play is up to the lawyers who read it. There are lawyers who refuse as a matter of principle to enter plea negotiations, or so they say. Such lawyers remind me of surgeons who refuse to wash their hands, objecting to the smell of soap. Woe to the patients of such doctors, and to the clients of such lawyers.
"In the American courtroom, the man who is eager to be condemned is told to sit down and is advised of his rights. Through both the police and his lawyers he learns that he must let the system grind in his defense. His eagerness for self-recrimination and self-blame is not taken into consideration by the court. His confession is considered only part of the evidence. I urge you souls who feel so guilty, endure your sense of guilt and recrimination. Demand that you have your full day in court. Stifle yourselves. You have given up hope by entering the gates of hell, but do not sacrifice yourselves out of guilt or remorse."
Wise words. But is Darrow counseling against plea bargaining here?
Of course not. Darrow understood the case and consequences belong to the client. He plead the McNamara brothers guilty in the bombing the of Los Angeles Times building when it became apparaent that the case against them was overwhelming. And in the Leopold and Loeb murder case, a quick guilty plea set the stage for a sentencing phase that changed perceptions about the role of mental disease and defect in our law. There are times when a client's interest and sound tactics result in a plea.
But Darrow here stands at the gates of Hell. He sees folks with cases that cannot be won. Like Satan in Paradise Lost, Darrow knows his case cannot be won. But he knows more. He knows that regardless of the plea, the fate is damnation. Better to defy in such case. Abandon hope all ye who enter? Perhaps. But do not yield in such a case without a fight. Otherwise, the only thing left, integrity, is lost.
Whether there is a lesson for lawyers in this play is up to the lawyers who read it. There are lawyers who refuse as a matter of principle to enter plea negotiations, or so they say. Such lawyers remind me of surgeons who refuse to wash their hands, objecting to the smell of soap. Woe to the patients of such doctors, and to the clients of such lawyers.
Sunday, January 11, 2009
The Power of Parables
"When a metaphor contains a radically new vision of world it gives absolutely no information until after the hearer has entered into it and experienced it from inside itself. In such cases the hearer's first reaction may be to refuse to enter into the metaphor and one will seek to translate it immediately into the comfortable normalcy of one's ordinary linguistic world.... From the outside it may sound squietly or even stridently insance. One must risk entrance before one can experience its validity.... [I]t is not a question even of imagining at the limits of one's imagination but rather or imagning wholly new ways of imagining."
In Parables: The Challenge of the Historical Jesus, John Dominic Crossan.
In Parables: The Challenge of the Historical Jesus, John Dominic Crossan.
I Am A Dope: Classic Ad Hominem Attack
I own a small firm. I have four associates, and one lawyer who is of counsel to my firm, Karen Torre. Karen's a great lawyer, but we rarely see eye-to-eye on politics. The other day, she decided to tell the world I am a moron. I pass the column along as an example of bad rhetoric: Call it a failed ad hominem attack. Read on:
Norm Pattis found a new word: “necromancy.” He uses it to disparage the Federalist Society, originalists and those (good) judges who agree that a “living” constitution is really a dead one. Who cares what “dead men” thought?, Norm bleats, in a recent column more suitable for a prison newsletter. He fancies the word, and as much fancies himself, for having conceived it as a put- down of federalists - that he uses it, ad nauseum, every chance he gets - in his columns, during our radio appearances, in our private discussions. But repeating “necromancy” like Rain Man rocking back and forth while watching Judge Wapner in your K-Mart clothes is a poor substitute for intelligent and rational debate. Like an attention-deprived boy who just learned a new, cool swearword and wants to make sure his teachers, parents, aunts, uncles and cousins hear him say it, Norm gets but an indulgent sigh from me.
Another colleague who thinks like Norm (or fails to think, like Norm) dared me to give “one example” where Justice Antonin Scalia’s originalism led him to interpret the Constitution in a manner that produced an outcome he personally detested. It took me a second to name one (of many). In Texas v. Johnson, the Supreme Court, by a 5-4 vote, held that Johnson, an unmitigated jerk, had a constitutional right to desecrate the American Flag. Justice Scalia was the tipping vote, notably against the emotional dissent of Justice Stevens. Like many (including, I suspect, Justice Scalia), I’d have preferred that the worthless Johnson be swept down the nearest sewer. But Scalia’s fidelity to the original meaning of the First Amendment carried the day.
What say you Norm about such “necromancy”? Given today’s PC culture, in which a new generation of kids believe they have a right to suppression of speech that hurts their feelings, would you insist your “living” constitution follow the new culture? Should Scalia have agreed that flag-burning is so hateful, so provocative, or so emotionally injurious to veterans or the parents of a dead soldier that it should be outlawed and to heck with the “dead” framers? Understanding the historical, revolutionary context of the First Amendment, Justice Scalia refused to consider it a “living” amendment and bend it to suit our (or his) sentiments. What “dead men” knew and thought matters, for their own experience under a tyrannical king and his court gave us the constitution Norm would allow living idiots to undermine.
The “Dead,” as Norm likes to call them, understood that future generations of Americans would face a different world, new challenges, changing mores and social conditions. They gave us the means to adapt to that if we chose to do so – a built-in process of constitutional amendment. We have used it rarely and wisely. We used it to give women the vote, and to outlaw slavery. I am amazed at just how many people think women got the vote because some judge (the kind preferred by Norm) issued a “progressive ruling.” (What the heck are we teaching in the public schools??)
In my last radio appearance with Norm, he couldn’t wait to use the word “necromancy” in lauding the Kerrigan ruling. Little did he know that the Kerrigan court was interpreting a not-so-old equal protection clause in our state constitution that was drafted, amended and approved by people who are very much still alive (and who disavowed any intent to guarantee gay marriage). So much for Norm’s stupid new word.
Norm likes to defend criminals. He files motions to exclude evidence as unconstitutionally gained under the Fourth Amendment, as interpreted by courts with reference to the historical context in which it was included in the Bill of Rights. To free a child molester, Norm invokes the views and values of dead men. Norm, the Necromant - when it suits him and his creepy clients.
And here’s another, perhaps more important, difference between us. Unlike Norm’s ghastly and repulsive jokes and glee at Attorney General Mukasey’s collapse while addressing the Federalist Society last month, had it been Justice Stevens instead, the thousands of decent people at that dinner would have done what we all did for Judge Mukasey – join hands and pray that he would stay alive.•
Norm Pattis found a new word: “necromancy.” He uses it to disparage the Federalist Society, originalists and those (good) judges who agree that a “living” constitution is really a dead one. Who cares what “dead men” thought?, Norm bleats, in a recent column more suitable for a prison newsletter. He fancies the word, and as much fancies himself, for having conceived it as a put- down of federalists - that he uses it, ad nauseum, every chance he gets - in his columns, during our radio appearances, in our private discussions. But repeating “necromancy” like Rain Man rocking back and forth while watching Judge Wapner in your K-Mart clothes is a poor substitute for intelligent and rational debate. Like an attention-deprived boy who just learned a new, cool swearword and wants to make sure his teachers, parents, aunts, uncles and cousins hear him say it, Norm gets but an indulgent sigh from me.
Another colleague who thinks like Norm (or fails to think, like Norm) dared me to give “one example” where Justice Antonin Scalia’s originalism led him to interpret the Constitution in a manner that produced an outcome he personally detested. It took me a second to name one (of many). In Texas v. Johnson, the Supreme Court, by a 5-4 vote, held that Johnson, an unmitigated jerk, had a constitutional right to desecrate the American Flag. Justice Scalia was the tipping vote, notably against the emotional dissent of Justice Stevens. Like many (including, I suspect, Justice Scalia), I’d have preferred that the worthless Johnson be swept down the nearest sewer. But Scalia’s fidelity to the original meaning of the First Amendment carried the day.
What say you Norm about such “necromancy”? Given today’s PC culture, in which a new generation of kids believe they have a right to suppression of speech that hurts their feelings, would you insist your “living” constitution follow the new culture? Should Scalia have agreed that flag-burning is so hateful, so provocative, or so emotionally injurious to veterans or the parents of a dead soldier that it should be outlawed and to heck with the “dead” framers? Understanding the historical, revolutionary context of the First Amendment, Justice Scalia refused to consider it a “living” amendment and bend it to suit our (or his) sentiments. What “dead men” knew and thought matters, for their own experience under a tyrannical king and his court gave us the constitution Norm would allow living idiots to undermine.
The “Dead,” as Norm likes to call them, understood that future generations of Americans would face a different world, new challenges, changing mores and social conditions. They gave us the means to adapt to that if we chose to do so – a built-in process of constitutional amendment. We have used it rarely and wisely. We used it to give women the vote, and to outlaw slavery. I am amazed at just how many people think women got the vote because some judge (the kind preferred by Norm) issued a “progressive ruling.” (What the heck are we teaching in the public schools??)
In my last radio appearance with Norm, he couldn’t wait to use the word “necromancy” in lauding the Kerrigan ruling. Little did he know that the Kerrigan court was interpreting a not-so-old equal protection clause in our state constitution that was drafted, amended and approved by people who are very much still alive (and who disavowed any intent to guarantee gay marriage). So much for Norm’s stupid new word.
Norm likes to defend criminals. He files motions to exclude evidence as unconstitutionally gained under the Fourth Amendment, as interpreted by courts with reference to the historical context in which it was included in the Bill of Rights. To free a child molester, Norm invokes the views and values of dead men. Norm, the Necromant - when it suits him and his creepy clients.
And here’s another, perhaps more important, difference between us. Unlike Norm’s ghastly and repulsive jokes and glee at Attorney General Mukasey’s collapse while addressing the Federalist Society last month, had it been Justice Stevens instead, the thousands of decent people at that dinner would have done what we all did for Judge Mukasey – join hands and pray that he would stay alive.•
Query: Learning More About the ICC
I just learned that the University of Connecticut School of Law is starting an International Human Rights Clinic in the spring semester. The clinic will be taught by Professor Mark Janis. I have applied for permission to audit the course. It strikes me as a unique opportunity to learn about emerging international norms for the enforcement of human rights.
My real passion, however, is to learn more about the International Criminal Court at the Hague. I am persuaded that the American Century, has ended. Global challenges involving the environment, trade, hunger and violence require more than spasmodic assertions of national might by countries with the means to make the effort. Global issues require global institutions; the development of international law and norms are necessary.
One of Dante's lesser-known works, De Monarchia, resonates now, some seven hundred years after it was written. Although written in defense of a universal monarchy, the work still stands as a plea for something like world government. The late-medieval schism between church and state did not yield universal peace, a necessary condition for human happiness. One can argue that clinging to national sovereignty in a world rapidly growing evermore interdependent is disruptive, as disruptive today as was the papacy's conflict with emerging nation-states centuries ago.
The United States has not signed on to the International Criminal Court, but that does not mean that American lawyers cannot participate in the development of necessary international institutions. Has anyone out there more information on the ICC, or participated in cases before that court? I am aware of the publications produced by the Norwegian Centre for Human Rights, at the University of Oslo. At this point, I'd like to talk to someone with more hands on experience.
I am hoping the University of Connecticut lets me audit the Human Rights seminar, but one never knows ...
My real passion, however, is to learn more about the International Criminal Court at the Hague. I am persuaded that the American Century, has ended. Global challenges involving the environment, trade, hunger and violence require more than spasmodic assertions of national might by countries with the means to make the effort. Global issues require global institutions; the development of international law and norms are necessary.
One of Dante's lesser-known works, De Monarchia, resonates now, some seven hundred years after it was written. Although written in defense of a universal monarchy, the work still stands as a plea for something like world government. The late-medieval schism between church and state did not yield universal peace, a necessary condition for human happiness. One can argue that clinging to national sovereignty in a world rapidly growing evermore interdependent is disruptive, as disruptive today as was the papacy's conflict with emerging nation-states centuries ago.
The United States has not signed on to the International Criminal Court, but that does not mean that American lawyers cannot participate in the development of necessary international institutions. Has anyone out there more information on the ICC, or participated in cases before that court? I am aware of the publications produced by the Norwegian Centre for Human Rights, at the University of Oslo. At this point, I'd like to talk to someone with more hands on experience.
I am hoping the University of Connecticut lets me audit the Human Rights seminar, but one never knows ...
Child Witnesses
This will be a funky Sunday. Nothing will change that. Tomorrow morning I will cross examine a six-year-old girl. She contends my client touched her where she should not have been touched. I know what the issues are in this case, but I have never enjoyed the cross examination of a child.
Under Connecticut law, there is no age below which a child is presumed incapable of testifying. A child need only demonstrate that she understands the concept of truthfulness and promises to tell it. A lawyer challenging such a witness's capacity must persuade a court the witness can't do be truthful. That is a difficult, and, in this case, impossible task -- I've watched videotaped interviews with the child. She is no stranger to the world of shared truths.
This exposes another of the many fault lines in the law separating civil from criminal court. No six year old can form a binding contract. As a matter of law, such a child lacks the capacity to make binding agreements. But they are capable, we say, of telling the truth. I am troubled that the civil side regards children as more suspect than the criminal side.
But to do otherwise would be to make it impossible for children to testify. Often, a child is the only witness. This is especially so in child sex cases where the allegations are that horrible things occur in dark places, where there are no witnesses. Making a contract requires greater judgment than discerning a fact.
Years ago, I defended a man accused of sodomizing his three daughters. When the youngest, age eight, testified, something inside me came close to breaking. "What did your father's pee-pee look like?" I asked, in a sing-song tone of voice. The child faltered when it came time to describing the act. The jury acquitted on that count. I think of that child often and of how, in the midst of cross-examination of her, I nearly broke down in tears. At that moment I would have adopted her if only to save her from the likes of me.
Tomorrow's case promises similar horror. The child says she was touched. We have a videotape of her recanting the accusation prepared by her father. The state has charged the father with tampering with a witness, in this case his own child. The layers on this onion yield noxious fumes.
I believe me client is innocent. He will testify that he did not touch the girl. There is no physical evidence corroborating the claim. Indeed, the location of the alleged assault almost certainly could not be the place of a crime of this sort. But....
But in order to overcome the accusations, I must stand in the well of a court and confront this witness. I am lacking in courage today, and will spend the day, and the better part of the night, mustering the means to go toe-to-toe with a six-year-old.
Under Connecticut law, there is no age below which a child is presumed incapable of testifying. A child need only demonstrate that she understands the concept of truthfulness and promises to tell it. A lawyer challenging such a witness's capacity must persuade a court the witness can't do be truthful. That is a difficult, and, in this case, impossible task -- I've watched videotaped interviews with the child. She is no stranger to the world of shared truths.
This exposes another of the many fault lines in the law separating civil from criminal court. No six year old can form a binding contract. As a matter of law, such a child lacks the capacity to make binding agreements. But they are capable, we say, of telling the truth. I am troubled that the civil side regards children as more suspect than the criminal side.
But to do otherwise would be to make it impossible for children to testify. Often, a child is the only witness. This is especially so in child sex cases where the allegations are that horrible things occur in dark places, where there are no witnesses. Making a contract requires greater judgment than discerning a fact.
Years ago, I defended a man accused of sodomizing his three daughters. When the youngest, age eight, testified, something inside me came close to breaking. "What did your father's pee-pee look like?" I asked, in a sing-song tone of voice. The child faltered when it came time to describing the act. The jury acquitted on that count. I think of that child often and of how, in the midst of cross-examination of her, I nearly broke down in tears. At that moment I would have adopted her if only to save her from the likes of me.
Tomorrow's case promises similar horror. The child says she was touched. We have a videotape of her recanting the accusation prepared by her father. The state has charged the father with tampering with a witness, in this case his own child. The layers on this onion yield noxious fumes.
I believe me client is innocent. He will testify that he did not touch the girl. There is no physical evidence corroborating the claim. Indeed, the location of the alleged assault almost certainly could not be the place of a crime of this sort. But....
But in order to overcome the accusations, I must stand in the well of a court and confront this witness. I am lacking in courage today, and will spend the day, and the better part of the night, mustering the means to go toe-to-toe with a six-year-old.
Saturday, January 10, 2009
The Kingdom of God?
I had a hard time sleeping the other night. It started around midnight, long after my wife and all the animals had gone to sleep. Indeed, I had drifted off at 8:30 or so. We are early to bed and early to rise, although I steal several hours in the dead of most nights to read, the purest of solitary pleasures.
So I awoke, and lay abed for a spell trying to drift away. It was quiet. I puzzled over legal problems in some of my cases. When they were sorted and left to percolate, I tossed and turned again. I wasn't troubled; no, I was excited. I couldn't stop thinking about several of the books I've been reading in recent weeks, and how eager I was to begin another.
At 12:45, I turned the light on. My wife did not stir. Neither did the cats. All else was quiet, my mind once again drawn to an impossible thought, a question that has been haunting me now for decades, but which I can rarely mutter the courage to utter aloud: Is the Kingdom of God at hand?
I portray myself as a pagan, a godless sort wandering through the years with no particular destination in mind, and no place in the wider world of spirit to call home. But is that entirely candid? I cannot help but wonder, year after year in arguments forever waged in the silence of my mind, whether there is more to the world that we can sense. I want there to be more. But I do not trust my desire.
So I've been reading books about the historical Jesus. I have an annotated bibliography of historical Jesus research on the bookshelf next to my desk. I am working through several works by current scholars, and I am sketching out a broader reading plan. A copy of Thomas Chubb's “The True Gospel of Jesus Christ Asserted,” written in 1737, arrived the other day. The scholars mark his work as a turning point in modern times.
How did a young Jewish manual laborer come to loom so large that his birth divides the millennia into eras? This is a mystery to me. And it is a fact about which I have scoffed, ridiculing those who find consolation in old tales implausibly told.
I am hesitant to write candidly about this interest of mine. In recent years, several prosecutors against whom I have litigated have become friends. They pray for me, they say. One sends books; another recommends G.K. Chesterton. We sometimes talk about things unrelated to our avocations as lawyers but about our true vocation as men alive to the world's possibilities. They see God's hand at work in the world, but I am blind.
Last night, I opened a recent work on Jesus's parables, and it is as if blinders fell from my eyes. I saw no vision of the divine, and I heard no voice. I am not Saul on the road to Damascus. Unlike Joshua, my hip is unbroken after a night of wrestling. But yet the author's rendering of the parables as means of illustrating Jesus's conviction that the Kingdom of God is at hand did not fall on ears made entirely of stone. Are there truths there, just beyond the words?
A good friend professes shock when I tell him what I am reading. Jesus? He had his fill at the hands of the nuns. I tell him I, too, thought I'd had my fill, although those who fed me were Protestant. But then I tell him a truth I had not expected to utter. There is more to the life of this enigmatic preacher than I had realized. Is this a sign of something akin to belief, and if so, belief in what, exactly? I am puzzled and as alive as I was when as a child I first read with wonder and hope about a man I have long since forsaken. What, I wonder, will help my unbelief?
Reprinted courtesy of The Connecticut Law Tribune.
So I awoke, and lay abed for a spell trying to drift away. It was quiet. I puzzled over legal problems in some of my cases. When they were sorted and left to percolate, I tossed and turned again. I wasn't troubled; no, I was excited. I couldn't stop thinking about several of the books I've been reading in recent weeks, and how eager I was to begin another.
At 12:45, I turned the light on. My wife did not stir. Neither did the cats. All else was quiet, my mind once again drawn to an impossible thought, a question that has been haunting me now for decades, but which I can rarely mutter the courage to utter aloud: Is the Kingdom of God at hand?
I portray myself as a pagan, a godless sort wandering through the years with no particular destination in mind, and no place in the wider world of spirit to call home. But is that entirely candid? I cannot help but wonder, year after year in arguments forever waged in the silence of my mind, whether there is more to the world that we can sense. I want there to be more. But I do not trust my desire.
So I've been reading books about the historical Jesus. I have an annotated bibliography of historical Jesus research on the bookshelf next to my desk. I am working through several works by current scholars, and I am sketching out a broader reading plan. A copy of Thomas Chubb's “The True Gospel of Jesus Christ Asserted,” written in 1737, arrived the other day. The scholars mark his work as a turning point in modern times.
How did a young Jewish manual laborer come to loom so large that his birth divides the millennia into eras? This is a mystery to me. And it is a fact about which I have scoffed, ridiculing those who find consolation in old tales implausibly told.
I am hesitant to write candidly about this interest of mine. In recent years, several prosecutors against whom I have litigated have become friends. They pray for me, they say. One sends books; another recommends G.K. Chesterton. We sometimes talk about things unrelated to our avocations as lawyers but about our true vocation as men alive to the world's possibilities. They see God's hand at work in the world, but I am blind.
Last night, I opened a recent work on Jesus's parables, and it is as if blinders fell from my eyes. I saw no vision of the divine, and I heard no voice. I am not Saul on the road to Damascus. Unlike Joshua, my hip is unbroken after a night of wrestling. But yet the author's rendering of the parables as means of illustrating Jesus's conviction that the Kingdom of God is at hand did not fall on ears made entirely of stone. Are there truths there, just beyond the words?
A good friend professes shock when I tell him what I am reading. Jesus? He had his fill at the hands of the nuns. I tell him I, too, thought I'd had my fill, although those who fed me were Protestant. But then I tell him a truth I had not expected to utter. There is more to the life of this enigmatic preacher than I had realized. Is this a sign of something akin to belief, and if so, belief in what, exactly? I am puzzled and as alive as I was when as a child I first read with wonder and hope about a man I have long since forsaken. What, I wonder, will help my unbelief?
Reprinted courtesy of The Connecticut Law Tribune.
Thursday, January 8, 2009
Hedgehog or Fox: Which Are You?
"The fox knows many things, but the hedgehog knows one big thing."
Archilochus
I did not find this quotation on my own. My attention was directed to it by Isaiah Berlin, one of my favorite essayists and political theorists. Berlin taught for many years at Oxford, wrote dozens of essays and books on the history of ideas. One of my favorites is a work of his entitled The Hedgehog and the Fox. Berlin died in 1997.
Many years ago, I read through everything I could find by Berlin while in search of a dissertation topic. Those were lost years; I was trapped in the stacks at Columbia wondering whether I should be a professor. That time ended when I concluded there was nothing, really, to profess.
I took notes on Berlin. During the Christmas break I was moving books from one room to another. I discovered my typewritten notes on Berlin. One hundred and twenty-plus pages. Grist for a mill than never produced grain. I've been leafing through the notes in idle moments, and it is pure pleasure.
Here's a quote from Berlin. Read through it. Linger over it. Then try it on for size. Once it fits, answer the following question: Are you a hedgehog or a fox? In the many years since I've read Berlin I've returned to this metaphor time and again. Call it a diagnostic tool to be used in gauging your intellectual temperament.
"[T]here exists a great chasm between those, on the one side, who relate everything to a single central vision, one system more or less coherent or articulate, in terms of which they think and feel -- a single, universal, organizing principal in which alone all that they are and say has significance -- and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way, for some pyschological or physiological cause, related by no moral or aesthetic principle; these last lead lives, perform acts, and entertain ideas that are centrifugal rather than centripeal, their thought is scattered or diffused, moving on many levels, sseizing upon the vast variety of experiences and objects for what they are in themselves, without, consciously or unconsciously, seeking to fit them into, or exclude them from, any one changing, all-embracing, sometimes self-contradictory and incomplete, at times fanatical, unitary inner vision."
Berlin classifies the following as hedgehogs: Plato, Lucretius, Pascal, Dante, Hegel, Dostoevsky, Nietzsche and Proust.
Among the foxes? Herodotus, Aristotle, Montaigne, Erasmus, Goethe, Joyce.
So, what are you?
Archilochus
I did not find this quotation on my own. My attention was directed to it by Isaiah Berlin, one of my favorite essayists and political theorists. Berlin taught for many years at Oxford, wrote dozens of essays and books on the history of ideas. One of my favorites is a work of his entitled The Hedgehog and the Fox. Berlin died in 1997.
Many years ago, I read through everything I could find by Berlin while in search of a dissertation topic. Those were lost years; I was trapped in the stacks at Columbia wondering whether I should be a professor. That time ended when I concluded there was nothing, really, to profess.
I took notes on Berlin. During the Christmas break I was moving books from one room to another. I discovered my typewritten notes on Berlin. One hundred and twenty-plus pages. Grist for a mill than never produced grain. I've been leafing through the notes in idle moments, and it is pure pleasure.
Here's a quote from Berlin. Read through it. Linger over it. Then try it on for size. Once it fits, answer the following question: Are you a hedgehog or a fox? In the many years since I've read Berlin I've returned to this metaphor time and again. Call it a diagnostic tool to be used in gauging your intellectual temperament.
"[T]here exists a great chasm between those, on the one side, who relate everything to a single central vision, one system more or less coherent or articulate, in terms of which they think and feel -- a single, universal, organizing principal in which alone all that they are and say has significance -- and, on the other side, those who pursue many ends, often unrelated and even contradictory, connected, if at all, only in some de facto way, for some pyschological or physiological cause, related by no moral or aesthetic principle; these last lead lives, perform acts, and entertain ideas that are centrifugal rather than centripeal, their thought is scattered or diffused, moving on many levels, sseizing upon the vast variety of experiences and objects for what they are in themselves, without, consciously or unconsciously, seeking to fit them into, or exclude them from, any one changing, all-embracing, sometimes self-contradictory and incomplete, at times fanatical, unitary inner vision."
Berlin classifies the following as hedgehogs: Plato, Lucretius, Pascal, Dante, Hegel, Dostoevsky, Nietzsche and Proust.
Among the foxes? Herodotus, Aristotle, Montaigne, Erasmus, Goethe, Joyce.
So, what are you?
Wednesday, January 7, 2009
Parables And Matters of Fact
My wife and I are readers. We have a lot of books around the house, in my offices, in the book store we own: There are books everywhere. Now that all our children are grown and gone making lives of their own, our evenings are once more given to the pleasure of long hours reading.
In the past month, I've been reading books about the historical Jesus. Why? I suppose part of the reason is reckoning with old struggles from young adulthood. I might not have been God-intoxicated, but I wanted to believe. It struck me as possible to know God, at least judging by what I heard from members of the church-going class. The Lord was always telling them one thing or another. I came to envy Jacob's broken hip -- imagine wrestling with the divine and getting something other than sorrow in response.
But a good education got in the way of my faith. We now have walls of books written by folks whose briefcases I am not suited to carry. I am wiser now; I think. But I still wonder about the divine. I wonder how an obscure Jewish preacher came to have such influence.
John Dominic Crossan and Marcus Borg are two writers I have just met. They have written lots about Jesus. One book in particular was a good and worthy read: The Last Week: A Day-by-Day Account of Jesus' Final Week in Jerusalem (Harper Collins: New York, 2006). This is not historial scholarship, strictly speaking; it is an interpretive reading of Mark's gospel, the earliest of the four gospels, written, scholars believe, about 20 years after the Jesus was crucified.
I am a trial lawyer, so skepticism comes easily. Can an account written 20 years after the events be reliable? Perhaps not as a guide to what actually took place in Jerusalem that week. But the events relayed by a man twenty years removed tells us what early Christians thought.
The biggest surprise in Crossan and Borg's book? Mark is silent on the notion that Jesus' death was some form of substitutionary atonement, a staple of Protestant Christians. The authors assert this doctrine did not take shape until 1097, when St. Anselm, the Archbishop of Canterbury, created it.
The Bible has long been a suspect work in my home. I am often kept from reading it by recalling Clarence Darrow's cross-examination of William Jennings Bryant. The great commoner was skewered on a cross of nonsense in that case.
But did Darrow and Bryant make a mistake? Do facts matter when interpreting the truth of Jesus's parables? As Crossan and Borg argue: "the truth of a parable -- or a parabolic narrative -- is not dependent on its factuality."
Crossan's book on Jesus parables arrived in the mail tonight. I am looking forward to the morning's small hours: I cheat most nights and read for several hours while the world around me sleeps. I don't expect any longer to hear the voice of God, but I am open to truths larger than what can proven or disproven.
In the past month, I've been reading books about the historical Jesus. Why? I suppose part of the reason is reckoning with old struggles from young adulthood. I might not have been God-intoxicated, but I wanted to believe. It struck me as possible to know God, at least judging by what I heard from members of the church-going class. The Lord was always telling them one thing or another. I came to envy Jacob's broken hip -- imagine wrestling with the divine and getting something other than sorrow in response.
But a good education got in the way of my faith. We now have walls of books written by folks whose briefcases I am not suited to carry. I am wiser now; I think. But I still wonder about the divine. I wonder how an obscure Jewish preacher came to have such influence.
John Dominic Crossan and Marcus Borg are two writers I have just met. They have written lots about Jesus. One book in particular was a good and worthy read: The Last Week: A Day-by-Day Account of Jesus' Final Week in Jerusalem (Harper Collins: New York, 2006). This is not historial scholarship, strictly speaking; it is an interpretive reading of Mark's gospel, the earliest of the four gospels, written, scholars believe, about 20 years after the Jesus was crucified.
I am a trial lawyer, so skepticism comes easily. Can an account written 20 years after the events be reliable? Perhaps not as a guide to what actually took place in Jerusalem that week. But the events relayed by a man twenty years removed tells us what early Christians thought.
The biggest surprise in Crossan and Borg's book? Mark is silent on the notion that Jesus' death was some form of substitutionary atonement, a staple of Protestant Christians. The authors assert this doctrine did not take shape until 1097, when St. Anselm, the Archbishop of Canterbury, created it.
The Bible has long been a suspect work in my home. I am often kept from reading it by recalling Clarence Darrow's cross-examination of William Jennings Bryant. The great commoner was skewered on a cross of nonsense in that case.
But did Darrow and Bryant make a mistake? Do facts matter when interpreting the truth of Jesus's parables? As Crossan and Borg argue: "the truth of a parable -- or a parabolic narrative -- is not dependent on its factuality."
Crossan's book on Jesus parables arrived in the mail tonight. I am looking forward to the morning's small hours: I cheat most nights and read for several hours while the world around me sleeps. I don't expect any longer to hear the voice of God, but I am open to truths larger than what can proven or disproven.
Sunday, January 4, 2009
What's Wrong With New Year's Resolutions?
I am an irresolute man. On the one hand, I am inclined to think "x"; but then, he other hand comes along and "y" seems to be the case. I always resolve to be resolute come the New Year, but resolution never comes. I just end up looking stupid.
I am glad I am not alone in this regard. Simple Justice reports on a Gage County, Nebraska lawyer who has decided he will no longer engage in plea bargaining on behalf of his clients. Sounds sexy, doesn't it? Riding high in the saddle and demanding that the state stop over-charging in the name of justice. So much swagger; so little sense.
Has this new ubermensch for justice put his malpractice carrier on notice?
Each and every crime in the United States is composed of two things: a prohibited act and a culpable mental state. From this mix of unhappy circumstance lawmakers weave criminal codes. Prosecutors have enormous discretion in what to charge. A sad reality is that clients are often overcharged, the better to frighten them into a plea bargain: "Honey, honey," the defendant exclaims, "the state has dropped the murder charge. I am now charged with negligent manslaughter."
That may sound like a bargain, but suppose the hapless defendant is not culpable in the death of the victim? Has he been hoodwinked into entering a plea for the wrong reasons?
The problem of overcharging can be dealt with in at least two ways at trial. First, a defendant can hold the state to the burden of proving the crime charged. A smart and courageous jury will sense the injustice of overcharging, and may well acquit.
Either side can also request that a jury consider what are known as lesser included charges, typically versions of the offense accompanied by a less culpable mental state and carrying a far lesser penalty that the top charge. The danger with such charges is that it encourages jury compromise. Jurors may be troubled by the conduct of the defendant, but not enough to give the state all it asks for. The compromise results in a conviction for something less.
The better solution would be to give judges the right to substitute lesser charges on the the defendant's motion. But this solution is far from fool proof. Courageous judges are rare.
Trial is risky. Innocent men are convicted, and folks who have done just what they are accused of doing sometimes walk. Trial is not perfect. But the risk of chosing trial or not belongs exclusively to the client. We lawyers don't get to play God with our client's lives.
A lawyer refusing to plea bargain effectively deprives his client of the right to make decisions about how best to manage the risks he faces. In some jurisdicitions, a refusal to negotiate may well constitute a violation of a defendant's constitutional right to effective assistance of counsel. I don't know the law in Nebraska, but I do know this much: I wouldn't consider hiring a lawyer who was not prepared to explore every option in defense of my liberty. I'd listen to what he could do on a plea, and if I didn't like the options, I'd stand trial.
I guess that means I wouldn't hire a lawyer who promised to do only a part of his job.
http://blog.simplejustice.us/2009/01/04/eliminating-plea-bargains-for-the-right-reasons.aspx#Com
I am glad I am not alone in this regard. Simple Justice reports on a Gage County, Nebraska lawyer who has decided he will no longer engage in plea bargaining on behalf of his clients. Sounds sexy, doesn't it? Riding high in the saddle and demanding that the state stop over-charging in the name of justice. So much swagger; so little sense.
Has this new ubermensch for justice put his malpractice carrier on notice?
Each and every crime in the United States is composed of two things: a prohibited act and a culpable mental state. From this mix of unhappy circumstance lawmakers weave criminal codes. Prosecutors have enormous discretion in what to charge. A sad reality is that clients are often overcharged, the better to frighten them into a plea bargain: "Honey, honey," the defendant exclaims, "the state has dropped the murder charge. I am now charged with negligent manslaughter."
That may sound like a bargain, but suppose the hapless defendant is not culpable in the death of the victim? Has he been hoodwinked into entering a plea for the wrong reasons?
The problem of overcharging can be dealt with in at least two ways at trial. First, a defendant can hold the state to the burden of proving the crime charged. A smart and courageous jury will sense the injustice of overcharging, and may well acquit.
Either side can also request that a jury consider what are known as lesser included charges, typically versions of the offense accompanied by a less culpable mental state and carrying a far lesser penalty that the top charge. The danger with such charges is that it encourages jury compromise. Jurors may be troubled by the conduct of the defendant, but not enough to give the state all it asks for. The compromise results in a conviction for something less.
The better solution would be to give judges the right to substitute lesser charges on the the defendant's motion. But this solution is far from fool proof. Courageous judges are rare.
Trial is risky. Innocent men are convicted, and folks who have done just what they are accused of doing sometimes walk. Trial is not perfect. But the risk of chosing trial or not belongs exclusively to the client. We lawyers don't get to play God with our client's lives.
A lawyer refusing to plea bargain effectively deprives his client of the right to make decisions about how best to manage the risks he faces. In some jurisdicitions, a refusal to negotiate may well constitute a violation of a defendant's constitutional right to effective assistance of counsel. I don't know the law in Nebraska, but I do know this much: I wouldn't consider hiring a lawyer who was not prepared to explore every option in defense of my liberty. I'd listen to what he could do on a plea, and if I didn't like the options, I'd stand trial.
I guess that means I wouldn't hire a lawyer who promised to do only a part of his job.
http://blog.simplejustice.us/2009/01/04/eliminating-plea-bargains-for-the-right-reasons.aspx#Com
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