A good woman nearly went to prison the other day because she rubbed the person who interviewed her for a presentence report the wrong way. Who gave these unsworn nabobs the keys to the prison?
My client was in a horrible car accident in the summer of 2007. Two of her children died in the crash. My client and her surviving child were horribly injured. The occupants of the car with which she collided were injured. When my client's blood was drawn at the emergency room, it reflected an elevated blood alcohol content. When her blood alcohol was translated into terms that make sense in the courts, it was high, too high. It read a .12. The legal limit is .08.
So the state threw the book at her. Two counts of manslaughter. Three counts of risk of injury to a minor as to her three children. Two counts of assault as the occupants of the other car. By the time the case was ready for trial, there were eight counts in all.
The state wanted this woman in prison. That seemed inconceivable to me. We pleaded with one judge after another for a suspended sentence. The mad shadow of Mothers Against Drunk Driving hung over every proceeding.
At trial we attacked the blood alcohol result as a false positive, a reflection of poor testing at the hospital and the various chemicals produced in the client's body as a result of her trauma: she suffered a lacerated liver, broken bones and damaged muscle tissue.
The state toxicologist told the jury she must have had the equivalent of nine or so beers in the hours before her accident. The jury told the toxicologist and the state there were plenty of reasons to doubt the alcohol related charges. The woman was acquitted of all counts but one, risk of injury to a minor.
The risk of injury counts were supported by two claims. Either the woman was driving while impaired, or she failed to have her children in seat belts or booster seats. When the jury rejected all of the alcohol related charges, that left only one set of facts to support the conviction: The woman's six year old daughter, who weighed 53 pounds, was in a seat belt, but not, as the law requires, a booster seat.
Come sentencing day, my client faced up to ten years imprisonment for this simple and tragic omission. The state would not agree to a disposition not involving prison time, even after its driving while intoxicated theory had been laid to waste.
The trial court ordered a presentence report, and we dutifully appeared with our client. We instructed her not to discuss the offense for which she had been convicted or her criminal trial. We explained the presentence process as merely a meeting with the equivalent of a social worker. Be truthful about your past and present, we told the client.
The meeting went well, or so we thought. A day or perhaps two days before sentencing a copy of the presentence report arrived in our office. It was a disaster.
The probation officer first appears to have done little more than regurgitate the arrest warrant when describing the offense conduct. Never mind that the client had been acquitted of all but one charge. The writer informed the court that the woman was not remorseful for her reckless driving or role in the death of her child. The client adopted the hope we gave her that her conviction would be overturned on appeal. This was too much for the probation officer: Send her to prison, was the conclusion.
The state lapped up this shocking swill like a drunken British soldier celebrating the Stamp Act. What's more, the trial court approached sentencing with this report as the framework for what justice required.
We were able to demolish this silly edifice at the sentencing hearing. My client is not in prison. But I am left with a renewed conviction that we need sentencing quidelines in serious criminal cases.
If courts are to sentence folks to prison it should make factual findings on the record based on competent evidence. The presentence report in this case was not competent. It was garbage. Our clients deserve better.
Reprinted courtesy of the Connecticut Law Tribune.
Thursday, April 30, 2009
Sunday, April 26, 2009
So What Is Law?, The Man Asked
"So what is the law?", a friend asked the other day. He was not seeking guidance on a course of conduct. I wasn't asked, magician-like, to summon shadows whose contours defined risks and benefits. It was as though someone sent to visit from another world sat beside me and asked the simplest of questions: What is law?
Try answering the question sometime. It is more difficult than you think, especially if you are a lawyer. We spend the livelong days of our lives banging our heads against statutes, rules, ordinances, doctrine. Step back. What is law?
I tried to avoid my friend with a glib sidestep. He wouldn't have it. He wanted a definition, my definition.
"The law," I said, "is a set of rules setting forth the minimum conditions of order necessary for the broadest class of people to pursue their individual ends."
My interlocutor was puzzled.
"You've told me what law does," he said. "But you have not told me what the law is. Where, for example, do I find the law?"
I sensed a trap. Find me a source of law in some written code or creed, and as soon as it is identified, a contrary or countermanding source can be found. The world is cacophony.
"The law is what it does," I responded. "It exists everywhere and no nowhere at all."
"That's a silly paradox that doesn't serve," he said.
"Is it? Consider," I told him, "the greatest msytery of all -- how individuals become a group, bound by common purpose and shared conceptions of right."
"Very Ciceronian," he said.
"You're right, but what of it?"
He said nothing.
"In any group there is and always will be conflict. Law resolves conflict, assigning rights and duties in a manner that is transparent to all participants."
"Transparency? Sounds very wraithlike," he said.
"It's nothing of the sort. Transparency means simply reasons given publicly in ways that are accessible to all. Hence, the importance of written decisions by the courts."
"Sort of oracular, isn't it?"
"Not at all. The law is the least oracular profession of all. At its best it scales the heavens for principles of the broadest possible application; a good decision then descends from the heavens to Earth by means of a ladder anyone can climb. At the end of the journey, individuals with conflicting interests are invited to yield their private sense of right to one shared by the group in which they live. The law often fails, but only chaos awaits a group that fails to make the effort to judge well and truly among its members when conflict arises."
My interlocutor was quite. I could not tell whether he thought I done more than merely state the obvious.
Try answering the question sometime. It is more difficult than you think, especially if you are a lawyer. We spend the livelong days of our lives banging our heads against statutes, rules, ordinances, doctrine. Step back. What is law?
I tried to avoid my friend with a glib sidestep. He wouldn't have it. He wanted a definition, my definition.
"The law," I said, "is a set of rules setting forth the minimum conditions of order necessary for the broadest class of people to pursue their individual ends."
My interlocutor was puzzled.
"You've told me what law does," he said. "But you have not told me what the law is. Where, for example, do I find the law?"
I sensed a trap. Find me a source of law in some written code or creed, and as soon as it is identified, a contrary or countermanding source can be found. The world is cacophony.
"The law is what it does," I responded. "It exists everywhere and no nowhere at all."
"That's a silly paradox that doesn't serve," he said.
"Is it? Consider," I told him, "the greatest msytery of all -- how individuals become a group, bound by common purpose and shared conceptions of right."
"Very Ciceronian," he said.
"You're right, but what of it?"
He said nothing.
"In any group there is and always will be conflict. Law resolves conflict, assigning rights and duties in a manner that is transparent to all participants."
"Transparency? Sounds very wraithlike," he said.
"It's nothing of the sort. Transparency means simply reasons given publicly in ways that are accessible to all. Hence, the importance of written decisions by the courts."
"Sort of oracular, isn't it?"
"Not at all. The law is the least oracular profession of all. At its best it scales the heavens for principles of the broadest possible application; a good decision then descends from the heavens to Earth by means of a ladder anyone can climb. At the end of the journey, individuals with conflicting interests are invited to yield their private sense of right to one shared by the group in which they live. The law often fails, but only chaos awaits a group that fails to make the effort to judge well and truly among its members when conflict arises."
My interlocutor was quite. I could not tell whether he thought I done more than merely state the obvious.
Blog to Watch: DailyWrit
I am not much of a fan of legal blogs. But I met a young man the other day who blogs on the Supreme Court. He's a star on the rise.
My youngest son and I were bleary-eyed when we stumbled from a cab in front of the United States Supreme Court at about 3:30 a.m. one morning this past week. We wanted to make sure we got one of the few seats reserved for the public for argument in the case of Ricci, et al. v. DeStafano, et al.
We were the 13th and 14th persons in line. Ahead of us were two college students, one from Columbia and the other from the University of Texas, Austin. Both knew far more about the Supreme Court than I ever did, or will. One of the young men had even submitted an amicus brief in the case.
Waiting on line is one of my least favorite things. But I had promised Joshua we'd see an argument, and so we waited. Although my firm's name is on the brief for Ricci et al. that was not sufficient cause for the Court to spring a couple of seats for my son and I. Indeed, the Court did not even see fit to assign reserved seats to the plaintiffs in the action. There is something unseemly about a public court that will pass out reserved seats to the well-heeled, but deny seating to a party. Power and privilege matter, even at the Supreme Court.
So we waited, and listend as the two young men ahead of us talked. It was dazzling, really. I had the sense that I was in the presence of future justices, or, at a minimum, the next George Stephanopoulus. Here is a link to DailyWrit, the blog page of one of these precocious scholars. http://dailywrit.com/about/.
My youngest son and I were bleary-eyed when we stumbled from a cab in front of the United States Supreme Court at about 3:30 a.m. one morning this past week. We wanted to make sure we got one of the few seats reserved for the public for argument in the case of Ricci, et al. v. DeStafano, et al.
We were the 13th and 14th persons in line. Ahead of us were two college students, one from Columbia and the other from the University of Texas, Austin. Both knew far more about the Supreme Court than I ever did, or will. One of the young men had even submitted an amicus brief in the case.
Waiting on line is one of my least favorite things. But I had promised Joshua we'd see an argument, and so we waited. Although my firm's name is on the brief for Ricci et al. that was not sufficient cause for the Court to spring a couple of seats for my son and I. Indeed, the Court did not even see fit to assign reserved seats to the plaintiffs in the action. There is something unseemly about a public court that will pass out reserved seats to the well-heeled, but deny seating to a party. Power and privilege matter, even at the Supreme Court.
So we waited, and listend as the two young men ahead of us talked. It was dazzling, really. I had the sense that I was in the presence of future justices, or, at a minimum, the next George Stephanopoulus. Here is a link to DailyWrit, the blog page of one of these precocious scholars. http://dailywrit.com/about/.
Thursday, April 23, 2009
Why Not Summary Judgment In Some Criminal Cases?
Sometimes the rules of criminal procedure make no sense. Why, for example, aren't defendants free to move for summary judgment?
There are occasions in which the criminal justice system is misused. A complaining witness can bring what is essentially a civil complaint to prosecutors and huff and puff about how they've been defrauded. The prosecution swears out a warrant. The defendant is arrested and then what?
Why plea negotiations, what else? The vast majority of criminal cases are resolved by way of a plea. A defendant and his or her counsel evaluate the strength of the state's case and the merits of potential defenses. After assessing the respective risks, the parties try to reach a compromise.
But how, exactly, are you to evaluate the strength of the state's case when you can conduct no discovery? On the civil side a lawyer telling his client to pay enormous sums of money without so much as a deposition of the plaintiff might well face a malpractice claim. Why do we expect lawyers to advise clients to give up their freedom with less information?
The lack of discovery rights in criminal cases puts the lie to our commitment to the presumption of innocence. Defend an insurance company dollar, and take all the discovery your client can afford. Defend a person's life and liberty and the rules resemble a drunk's game of Russian Roulette.
I am mindful that in a criminal case a defendant has a right to remain silent. I am also aware that the state has the burden of proof. Hence, silent inertia is often a person's best defense when the state cannot make it case. Chaos is sometimes the best defense, even of a person who is factually innocent.
In cases where a defendant wants simply to hold the state to its burden of proof, I say the system works well enough as is. But I would like to see a regulatory regime in which criminal defendants had the option to waive the right to remain silent in exchange for civil discovery rights.
In such a case, a defendant could submit to discovery, as would the state's witnesses. Why would a defendant agree to this, thus depriving him of the element of surprise at trial? Because under this proposal a defendant would acquire the right to file a summary judgment motion after the conclusion of discovery. In other words, the court system would not be held hostage to an improvident prosecution.
I am involved in a white collar case just now. I have reviewed documents in my client's possession. I have talked to witnesses. I understand my defense and I am confident about the outcome should we have to try the case. The state seems less confident.
During a recent pretrial, the state asked for documents we have. I declined to produce them. But aren't I obliged to produce the documents if I intend to offer them at trial? The Practice Book says so. In this case I have no intention of offering any documents. My intention is to win the case on a motion for judgment of acquittal at the close of the state's case. As near as I can tell the state's case is a twisted farce by a complaining witness who far better deserves to be a defendant than does my client.
I would be willing to recommend that the client have the right to conduct civil discovery as to my client, including a deposition, but only so long as I am able when discovery is done to move for summary judgment. A confident state interested in the pursuit of justice would submit to such a process. In the absence of such an agreement, I see little value in playing nice and opening my client's files and thoughts to the view of the state.
This is an awkward standoff that has little to do with justice, and everything to do with the strategy and tactics of litigation. Why not give defendants the incentive to challenge weak cases early, rather than having to endure the humiliation of a trial?
Courtesy of the Connecticut Law Tribune.
There are occasions in which the criminal justice system is misused. A complaining witness can bring what is essentially a civil complaint to prosecutors and huff and puff about how they've been defrauded. The prosecution swears out a warrant. The defendant is arrested and then what?
Why plea negotiations, what else? The vast majority of criminal cases are resolved by way of a plea. A defendant and his or her counsel evaluate the strength of the state's case and the merits of potential defenses. After assessing the respective risks, the parties try to reach a compromise.
But how, exactly, are you to evaluate the strength of the state's case when you can conduct no discovery? On the civil side a lawyer telling his client to pay enormous sums of money without so much as a deposition of the plaintiff might well face a malpractice claim. Why do we expect lawyers to advise clients to give up their freedom with less information?
The lack of discovery rights in criminal cases puts the lie to our commitment to the presumption of innocence. Defend an insurance company dollar, and take all the discovery your client can afford. Defend a person's life and liberty and the rules resemble a drunk's game of Russian Roulette.
I am mindful that in a criminal case a defendant has a right to remain silent. I am also aware that the state has the burden of proof. Hence, silent inertia is often a person's best defense when the state cannot make it case. Chaos is sometimes the best defense, even of a person who is factually innocent.
In cases where a defendant wants simply to hold the state to its burden of proof, I say the system works well enough as is. But I would like to see a regulatory regime in which criminal defendants had the option to waive the right to remain silent in exchange for civil discovery rights.
In such a case, a defendant could submit to discovery, as would the state's witnesses. Why would a defendant agree to this, thus depriving him of the element of surprise at trial? Because under this proposal a defendant would acquire the right to file a summary judgment motion after the conclusion of discovery. In other words, the court system would not be held hostage to an improvident prosecution.
I am involved in a white collar case just now. I have reviewed documents in my client's possession. I have talked to witnesses. I understand my defense and I am confident about the outcome should we have to try the case. The state seems less confident.
During a recent pretrial, the state asked for documents we have. I declined to produce them. But aren't I obliged to produce the documents if I intend to offer them at trial? The Practice Book says so. In this case I have no intention of offering any documents. My intention is to win the case on a motion for judgment of acquittal at the close of the state's case. As near as I can tell the state's case is a twisted farce by a complaining witness who far better deserves to be a defendant than does my client.
I would be willing to recommend that the client have the right to conduct civil discovery as to my client, including a deposition, but only so long as I am able when discovery is done to move for summary judgment. A confident state interested in the pursuit of justice would submit to such a process. In the absence of such an agreement, I see little value in playing nice and opening my client's files and thoughts to the view of the state.
This is an awkward standoff that has little to do with justice, and everything to do with the strategy and tactics of litigation. Why not give defendants the incentive to challenge weak cases early, rather than having to endure the humiliation of a trial?
Courtesy of the Connecticut Law Tribune.
Thursday, April 16, 2009
Ricci v. DeStefano: Can We Ignore The Obvious?
The myth of American exceptionalism is disproven with a vengeance when it comes to race. God didn’t pick North America as a preserve for the righteous. We are no city on a hill beckoning the world to do as we do. At the founding we enslaved people of color; today we spend other people’s money and then blame the banks for giving it to us. We are such stuff as human nature is made of, and that isn’t often pretty or even ennobling.
The color line rattles and roars. Consider the equal protection case to be argued before the United States Supreme Court on April 22, Ricci, et al. v. DeStefano, et al. It asks a fundamental question: When does, and should, race matter when it comes to promotional opportunity?
I need to put my cards on the table. I have won large verdicts for people on both sides of the color line. I once won a $3 million verdict for white and Hispanic firefighters in Hartford; a jury found race mattered when it came to explaining why they did not get a promotion. A few years later, I won $1.5 million for a black woman firefighter in New Haven. A jury concluded that race mattered there, too.
I suppose litigating both sides of the color line makes me a mercenary of sorts. I enjoy the privilege of skin when it comes to chosing sides. I was born with a white man’s lollipop in my mouth. It tastes good.
But I have good friends who tumbled from the womb dark in skin. They don’t get to pick sides. I don’t quite suffer survivor’s guilt as to these folks. But I am aware of what Nathan McCall once said of white people: Don’t trust ‘em when it comes to questions of race. We can pick and choose when to care, just as we can decide to adopt hang-gliding as a hobby. McCall is right.
But in the New Haven case, a group of white and Hispanic firefighters sweat blood to study for a promotional exam. The City of New Haven hired experts to make sure the exam was race neutral. No effort or expense was spared to assure that the test would not penalize folks on account of accidents of birth. The test was duly administered and scored. No one complained that the test was unfair.
Then the results were published. As it happened, the results were like a vanilla ice cream cone: all that white atop a brown base. The City refused to certify the list because of its disparate impact on people of color.
Something doesn’t make sense. A test is certified as race neutral. It is administered. No one complains. Then the results come in. Now complaints rain down aplenty. Does race only matter when it can be used as a club?
No one contends that the test was designed to beat down people of color. Indeed, the contrary is admitted. The test was engineered to make it neutral on questions of color. The only time race mattered, apparently, was when the results were in and those who scored poorly happened to be people of color.
A federal equal protection claim was filed on behalf of some white and Hispanic firefighters by Karen Torre. The District Court granted the City’s motion for summary judgment. An appeal was taken. The Second Circuit upheld the District Court. A petition for certiorari was filed and granted. Dozens of amicus curiae briefs have been filed. Next week the case will be argued.
I plan to be there to watch the arguments. My youngest son heads to medical school in July. He wanted to see an argument in the Supreme Court with me as a sort of last hurrah. We’ll see a Fourth Amendment case on Tuesday and the New Haven case on Wednesday.
But I am also going because my firm’s name is on the brief for the white and Hispanic firefighters. Attorney Torre is of counsel to my firm, and has been for some time. I am proud of her work even as I am uneasy about this volcanic case. The color line rumbles with tectonic rage. America sometimes has the look and feel of Bosnia.
I suppose the only way to make sure that race does not matter in employment decisions is to eliminate consideration of race altogether. Yet this is a convenient position for a white man to take. I’m torn just now by my knowledge of how much race still matters in determining the course of a person’s life chances in these United States.
The current law of the land puts cities in a lose-lose situation in public employment. The loser in any promotional case can almost always claim race. I say erase the line altogether in public employee cases. Otherwise we will simply continue to fuel endless litigation in which the reality of American life rubs hard against our ideals.
Reprinted courtest of the Connecticut Law Tribune.
The color line rattles and roars. Consider the equal protection case to be argued before the United States Supreme Court on April 22, Ricci, et al. v. DeStefano, et al. It asks a fundamental question: When does, and should, race matter when it comes to promotional opportunity?
I need to put my cards on the table. I have won large verdicts for people on both sides of the color line. I once won a $3 million verdict for white and Hispanic firefighters in Hartford; a jury found race mattered when it came to explaining why they did not get a promotion. A few years later, I won $1.5 million for a black woman firefighter in New Haven. A jury concluded that race mattered there, too.
I suppose litigating both sides of the color line makes me a mercenary of sorts. I enjoy the privilege of skin when it comes to chosing sides. I was born with a white man’s lollipop in my mouth. It tastes good.
But I have good friends who tumbled from the womb dark in skin. They don’t get to pick sides. I don’t quite suffer survivor’s guilt as to these folks. But I am aware of what Nathan McCall once said of white people: Don’t trust ‘em when it comes to questions of race. We can pick and choose when to care, just as we can decide to adopt hang-gliding as a hobby. McCall is right.
But in the New Haven case, a group of white and Hispanic firefighters sweat blood to study for a promotional exam. The City of New Haven hired experts to make sure the exam was race neutral. No effort or expense was spared to assure that the test would not penalize folks on account of accidents of birth. The test was duly administered and scored. No one complained that the test was unfair.
Then the results were published. As it happened, the results were like a vanilla ice cream cone: all that white atop a brown base. The City refused to certify the list because of its disparate impact on people of color.
Something doesn’t make sense. A test is certified as race neutral. It is administered. No one complains. Then the results come in. Now complaints rain down aplenty. Does race only matter when it can be used as a club?
No one contends that the test was designed to beat down people of color. Indeed, the contrary is admitted. The test was engineered to make it neutral on questions of color. The only time race mattered, apparently, was when the results were in and those who scored poorly happened to be people of color.
A federal equal protection claim was filed on behalf of some white and Hispanic firefighters by Karen Torre. The District Court granted the City’s motion for summary judgment. An appeal was taken. The Second Circuit upheld the District Court. A petition for certiorari was filed and granted. Dozens of amicus curiae briefs have been filed. Next week the case will be argued.
I plan to be there to watch the arguments. My youngest son heads to medical school in July. He wanted to see an argument in the Supreme Court with me as a sort of last hurrah. We’ll see a Fourth Amendment case on Tuesday and the New Haven case on Wednesday.
But I am also going because my firm’s name is on the brief for the white and Hispanic firefighters. Attorney Torre is of counsel to my firm, and has been for some time. I am proud of her work even as I am uneasy about this volcanic case. The color line rumbles with tectonic rage. America sometimes has the look and feel of Bosnia.
I suppose the only way to make sure that race does not matter in employment decisions is to eliminate consideration of race altogether. Yet this is a convenient position for a white man to take. I’m torn just now by my knowledge of how much race still matters in determining the course of a person’s life chances in these United States.
The current law of the land puts cities in a lose-lose situation in public employment. The loser in any promotional case can almost always claim race. I say erase the line altogether in public employee cases. Otherwise we will simply continue to fuel endless litigation in which the reality of American life rubs hard against our ideals.
Reprinted courtest of the Connecticut Law Tribune.
Wednesday, April 15, 2009
Subpoena Envy
Administrative subpoenas offer great opportunities for abuse by the Government. A pencil pusher in a regulatory agency has the freedom to fire off requests for documents, sometimes thousands of documents, without bearing any cost at all. And without any judicial oversight.
It works like this: A wild hair sprounts in the office of some civil servant. They want more information about something. So they fire off a subpoena. The target must consult counsel, who will then inform the hapless target that the choices are compliance or an expensive court battle to try to quash or limit the subpoena.
So the target produces documents; his lawyer reviews them, culling through the dettritus to separate those documents subject to some privilege from those which are not, all while an hourly clock happily ticks on the eternal billing machine. Meanwhile, the bureaucrat cum lawyer requesting all this sits back, feet on the desk, smoking another cigar courtesy of the people. The government's costs, you see, are eternally fixed, and we pay them whether we like it or not.
The documents are supplied, the government looks at them and then concludes it was fishing in a dry hole: There's no there there and so the bureaucrat moves on to some other fool's errand.
Query: Why doesn't the law to recover the government to bear the costs of compliance with its requests when those requests are found to be foolish or without merit? It will not do to say that such a fee-shifting requirement is inconsistent with the so-called American rule. That common law principle is designed to assure that ordinary people have the right to press their claims in a court of law; we try to lower the barriers to the pursuit of whatever justice the courts can dispense.
But I though the whole point of a constitution was to limit assertions of government power. Letting the feds hide behind the American rule while they deal out little more than tripe with administrative subpoenas is simply wrong. It encourages government to prey on the very people it serves.
It works like this: A wild hair sprounts in the office of some civil servant. They want more information about something. So they fire off a subpoena. The target must consult counsel, who will then inform the hapless target that the choices are compliance or an expensive court battle to try to quash or limit the subpoena.
So the target produces documents; his lawyer reviews them, culling through the dettritus to separate those documents subject to some privilege from those which are not, all while an hourly clock happily ticks on the eternal billing machine. Meanwhile, the bureaucrat cum lawyer requesting all this sits back, feet on the desk, smoking another cigar courtesy of the people. The government's costs, you see, are eternally fixed, and we pay them whether we like it or not.
The documents are supplied, the government looks at them and then concludes it was fishing in a dry hole: There's no there there and so the bureaucrat moves on to some other fool's errand.
Query: Why doesn't the law to recover the government to bear the costs of compliance with its requests when those requests are found to be foolish or without merit? It will not do to say that such a fee-shifting requirement is inconsistent with the so-called American rule. That common law principle is designed to assure that ordinary people have the right to press their claims in a court of law; we try to lower the barriers to the pursuit of whatever justice the courts can dispense.
But I though the whole point of a constitution was to limit assertions of government power. Letting the feds hide behind the American rule while they deal out little more than tripe with administrative subpoenas is simply wrong. It encourages government to prey on the very people it serves.
Monday, April 13, 2009
We Won!
The jury returned a verdict in favor of my client today. Life is good. Here are two stories about the case. I am on auto pilot today.
http://www.newhavenindependent.org/archives/2009/04/willoughby_not.php
http://www.nhregister.com/
http://www.newhavenindependent.org/archives/2009/04/willoughby_not.php
http://www.nhregister.com/
Sunday, April 12, 2009
Secret Societies: An Unbiased History of Our Desire for Secret Knowledge
I've never understood why folks belong to secret societies. What's the point of esoteric words, secret handshakes and clubs?
David V. Barrett's Secret Societies: An Unbiased History of Our Desire for Secret Knowledge (2007), didn't help me understand esoterica any better. But it was a good read nonetheless. Ranging from Pythagoras and gnosticism through the Renaissance alchemists and neo-Platonists to Freemasons and the KKK, Barrett debunks the fantasy that there is a secret cabal with hidden knowledge passed from hand to hand since the beginning of time. Of course, for those of us with a mundane case of mind, such a debunking was not necessary.
The more interesting question, and one which Barrett does not really address, is why we assume there is a coherent internal narrative structure to being itself. We seem constructed in such a way that we cannot help but look for deeper laws and rhythms in the fabric of the chaos apparent all around us. Why is that? What fear drives us to conceive fanciful origins and imagine impossible endings? Sufficient unto the moment is the evil therein, I say.
I found Barrett's treatment of the Knights Templar and Arthurian romance particulary fascinating. The notion of a noble warrior appeals, even if there is no Holy Grail. His description of the origins of Tarot cards was also illuminating. Despite these flashes of insight, the book disappoints. Barrett really wanted to write a history of the Freemason movement; again and again he fidgets and fusses about obscure doctrinal and personality conflicts among Freemasons. To my knowledge, I've never met a Freemason. A simple bread and butter account of what they are all about would have fascinated me.
I enjoyed this book a great deal. It has a useful bibliography for further research. (My idea of heaven is a library filled with annotated bibliographies and the time to follow each thread to the very end. What's the old lament? So many books, so little time?)
Check it out if you want to learn more about the secret handshake set.
David V. Barrett's Secret Societies: An Unbiased History of Our Desire for Secret Knowledge (2007), didn't help me understand esoterica any better. But it was a good read nonetheless. Ranging from Pythagoras and gnosticism through the Renaissance alchemists and neo-Platonists to Freemasons and the KKK, Barrett debunks the fantasy that there is a secret cabal with hidden knowledge passed from hand to hand since the beginning of time. Of course, for those of us with a mundane case of mind, such a debunking was not necessary.
The more interesting question, and one which Barrett does not really address, is why we assume there is a coherent internal narrative structure to being itself. We seem constructed in such a way that we cannot help but look for deeper laws and rhythms in the fabric of the chaos apparent all around us. Why is that? What fear drives us to conceive fanciful origins and imagine impossible endings? Sufficient unto the moment is the evil therein, I say.
I found Barrett's treatment of the Knights Templar and Arthurian romance particulary fascinating. The notion of a noble warrior appeals, even if there is no Holy Grail. His description of the origins of Tarot cards was also illuminating. Despite these flashes of insight, the book disappoints. Barrett really wanted to write a history of the Freemason movement; again and again he fidgets and fusses about obscure doctrinal and personality conflicts among Freemasons. To my knowledge, I've never met a Freemason. A simple bread and butter account of what they are all about would have fascinated me.
I enjoyed this book a great deal. It has a useful bibliography for further research. (My idea of heaven is a library filled with annotated bibliographies and the time to follow each thread to the very end. What's the old lament? So many books, so little time?)
Check it out if you want to learn more about the secret handshake set.
Happy Birthday for a Fee?
Gerry Spence turned eighty this year. There will be a birthday bash for him at Thunderhead Ranch this summer. Invitations have been sent out. I got one. And I thought about going, even going so far as to ask a friend for the names of hotels in the area. I've not been to the ranch, home of the Trial Lawyers' College, in a decade. The lay of the land is now foreign to me.
But then I read the invitation a little more carefully. There is a fee of $250 to attend the celebration? That's chutzpah.
I harbor an ambivalent admiration for Spence. He is a great lawyer and a charismatic man. I respect his ability in a courtroom even as I harbor misgivings about the need that compels him to surround himself with admirers. Truth be told, the thought of returning to the ranch to break bread with some of the apostles is chilling to me. Better a long distance Judas than a reluctant Prodigal Son. There are too many skeletons buried in the foothills.
A decade ago I kicked loose from the crowd surrounding Spence. I wasn't content to carry another's mantle. I said some harsh words in public about the man, words I have since retracted in a forum as public as the one in which I published them. Spence and I have made a fragile sort of peace by way of a wary email correspondence. But the wariness wearies me. Perhaps it is best to let things be.
So here's a long distance Happy Birthday to a good man. But please, Gerry, get someone to rethink the fee for attending the bash. Were I in a ridiculing frame of mind, I'd have a field day with that.
But then I read the invitation a little more carefully. There is a fee of $250 to attend the celebration? That's chutzpah.
I harbor an ambivalent admiration for Spence. He is a great lawyer and a charismatic man. I respect his ability in a courtroom even as I harbor misgivings about the need that compels him to surround himself with admirers. Truth be told, the thought of returning to the ranch to break bread with some of the apostles is chilling to me. Better a long distance Judas than a reluctant Prodigal Son. There are too many skeletons buried in the foothills.
A decade ago I kicked loose from the crowd surrounding Spence. I wasn't content to carry another's mantle. I said some harsh words in public about the man, words I have since retracted in a forum as public as the one in which I published them. Spence and I have made a fragile sort of peace by way of a wary email correspondence. But the wariness wearies me. Perhaps it is best to let things be.
So here's a long distance Happy Birthday to a good man. But please, Gerry, get someone to rethink the fee for attending the bash. Were I in a ridiculing frame of mind, I'd have a field day with that.
Happy Easter?
Easter Sunday, you say? I hadn't noticed anything different about the day. The Sun shines this morning, to be sure. In New England that is a rare thing this time of year. But otherwise this day, this Sunday, is no different than any other. A late breakfast over the newspaper with my wife, and then into the office for a day of catch up before another week of warfare in the courts.
But He is risen, you say? Again, I've noticed no such thing, although I concede that reports of his resurrection have echoed for millenia. I cannot account for this. And neither do I have a rational account of why I find the historical Jesus to be of interest.
First, some fundamentals. I do not pray. I attend no church. I do not believe in a life to come -- my hands are full juggling what this one deals. I am a trial lawyer, and even if my own life were not chaotic enough, my clients come to me in pieces demanding resurrections I am expected to produce. My own death seems unavoidable in an unthinkable sort of way: I am inclinded to view it as mere annihilation, a thought that titillates and terrifies in much the same way as do sexual reveries.
So why this fascination with Jesus? God knows, I say with a chuckle. Believers of a sort take that statement literally. For me it is a nod toward the ineffable. Unknowing is an amibguous sort of place, both comforting and not depending on the imperative of the moment.
So what of Jesus? He announced that the Kingdom of Heaven was at hand. When I contrast the Gospel accounts of Jesus' public teaching with Plato's Socratic dialogues I am at once struck by how Jesus beckons whereas Socrates pushes. Both decenter the listener, Socrates in the form of a challenge, but Jesus in the form of a kiss. I so much more prefer the lover to the debater.
But I do not believe Jesus rose from the dead. And that, I suppose, distinguishes me from the millions walking the Earth who profess such a belief, and from the hundreds of millions now dead who have believed this for centuries. It is not that such a thing strikes me as impossible. The world is a marvel. When I consider the debates stirred by creationists, I am at once distressed: The origin of things is opaque. But life's arising by chance strikes me as no more improbable than God taking the form of a man, dying and rising from the dead. Both are mind-numbing sorts of possibilities far removed from my quotidian concerns.
William James once spoke of the cash value of an idea. I confess to a heartless pragmatism. Seemingly by chance I find myself in a world and compelled to give an account of it. The account I give must serve.
Reports of Jesus suggest that he found a way amid the tears in time to experience and express something like peace. It was a provocative peace that challenged the orthodoxy and empire of his time and it very well led to his crucifixion. He was the mustard seed that died and then blossomed into something unthinkable. Two millenia after his death some still struggle to hear his voice.
I expect no audible sign, no visible signal. Whether he rose from the dead or not seems beside the point. In my time, fleeting though it is, I am tempted to hope for a kingdom of stillness and peace, a vision of things sublime amid all that rushes, pulls and tears at each day.
"The basic thing," Jacques Lacan once said about psychoanalysis, "is that people finally realize they've been talking nonsense at full volume for years." Is that the point of the kingdom? That amid the nonsense of our days there is something more real, more centering, and near at hand for those with ears to hear, and eyes to see?
Happy Easter to one and all. I still don't get it; perhaps there really is nothing to get, other than the hope of a silent lover's secret kiss.
But He is risen, you say? Again, I've noticed no such thing, although I concede that reports of his resurrection have echoed for millenia. I cannot account for this. And neither do I have a rational account of why I find the historical Jesus to be of interest.
First, some fundamentals. I do not pray. I attend no church. I do not believe in a life to come -- my hands are full juggling what this one deals. I am a trial lawyer, and even if my own life were not chaotic enough, my clients come to me in pieces demanding resurrections I am expected to produce. My own death seems unavoidable in an unthinkable sort of way: I am inclinded to view it as mere annihilation, a thought that titillates and terrifies in much the same way as do sexual reveries.
So why this fascination with Jesus? God knows, I say with a chuckle. Believers of a sort take that statement literally. For me it is a nod toward the ineffable. Unknowing is an amibguous sort of place, both comforting and not depending on the imperative of the moment.
So what of Jesus? He announced that the Kingdom of Heaven was at hand. When I contrast the Gospel accounts of Jesus' public teaching with Plato's Socratic dialogues I am at once struck by how Jesus beckons whereas Socrates pushes. Both decenter the listener, Socrates in the form of a challenge, but Jesus in the form of a kiss. I so much more prefer the lover to the debater.
But I do not believe Jesus rose from the dead. And that, I suppose, distinguishes me from the millions walking the Earth who profess such a belief, and from the hundreds of millions now dead who have believed this for centuries. It is not that such a thing strikes me as impossible. The world is a marvel. When I consider the debates stirred by creationists, I am at once distressed: The origin of things is opaque. But life's arising by chance strikes me as no more improbable than God taking the form of a man, dying and rising from the dead. Both are mind-numbing sorts of possibilities far removed from my quotidian concerns.
William James once spoke of the cash value of an idea. I confess to a heartless pragmatism. Seemingly by chance I find myself in a world and compelled to give an account of it. The account I give must serve.
Reports of Jesus suggest that he found a way amid the tears in time to experience and express something like peace. It was a provocative peace that challenged the orthodoxy and empire of his time and it very well led to his crucifixion. He was the mustard seed that died and then blossomed into something unthinkable. Two millenia after his death some still struggle to hear his voice.
I expect no audible sign, no visible signal. Whether he rose from the dead or not seems beside the point. In my time, fleeting though it is, I am tempted to hope for a kingdom of stillness and peace, a vision of things sublime amid all that rushes, pulls and tears at each day.
"The basic thing," Jacques Lacan once said about psychoanalysis, "is that people finally realize they've been talking nonsense at full volume for years." Is that the point of the kingdom? That amid the nonsense of our days there is something more real, more centering, and near at hand for those with ears to hear, and eyes to see?
Happy Easter to one and all. I still don't get it; perhaps there really is nothing to get, other than the hope of a silent lover's secret kiss.
Saturday, April 11, 2009
A Change In Perspective
I got an email the other day from a regular reader. She noted that another legal blogger had written about his apparent disappointment that I had not linked to his blog. Sure enough, someone wrote that I didn't think his blog was "good enough" to link to mine. A small pebble was dropped. The ripples have now ceased.
I've blogged at one site or another since early 2005. For a time, it seemed important to me to track traffic. The more readers the better, it seemed to me. The site I blogged on was popular. It still is. Mike over at Crime and Federalism is a truly creative mind. I enjoy reading his blog still, but not so much for more or less quotidian takes on the practice of law. I get a belly full of that just talking to lawyers in the hall of one court or another. What I enjoy about Crime and Federalism is the cross-fertilization that comes of reading about things other than the law. Mike's got a passion for cognitive sciences and social psychology.
After I left Crime and Federalism, I started a blog under my own name. I wanted readers. So I wrote often. I felt something like pressure to have something to say about whatever issue had just emerged. But in the end the compulsion to have something to say quickly led to writing that was flat and commentary that was little more than flip. I rarely look at the blawgoshpere any longer.
The incestuous quality of blogging doesn't appeal to me. Endless cross notations to other writers sharing our all-too-obvious insights on the events of the past 12 or, gasp, 24 hours, has little appeal. Increasingly, I am drawn to sites unrelated to the law, however. And I still am compelled to write and am gratified that anyone reads at all.
So I am changing course as a so-called legal blogger. I'll still write about legal issues. I am a lawyer after all. But what interests me about the law isn't the vanilla topics familiar to all. What interests me are the more exotic flavors. Hence, today I linked to a blog on fairy tales, part of an emerging interest I have in finding archetypical stories that correspond to the emotional dramas unfolding in a courtroom. Check out Diamonds & Toads. And I will continue to labor along in my efforts to understand Jesus' parables.
I am not quitting the practice of law. Far from it. I simply intend to use this page as a way of finding images and inspiration in something other than the most obvious impression a mirror can hold.
Thanks for reading.
I've blogged at one site or another since early 2005. For a time, it seemed important to me to track traffic. The more readers the better, it seemed to me. The site I blogged on was popular. It still is. Mike over at Crime and Federalism is a truly creative mind. I enjoy reading his blog still, but not so much for more or less quotidian takes on the practice of law. I get a belly full of that just talking to lawyers in the hall of one court or another. What I enjoy about Crime and Federalism is the cross-fertilization that comes of reading about things other than the law. Mike's got a passion for cognitive sciences and social psychology.
After I left Crime and Federalism, I started a blog under my own name. I wanted readers. So I wrote often. I felt something like pressure to have something to say about whatever issue had just emerged. But in the end the compulsion to have something to say quickly led to writing that was flat and commentary that was little more than flip. I rarely look at the blawgoshpere any longer.
The incestuous quality of blogging doesn't appeal to me. Endless cross notations to other writers sharing our all-too-obvious insights on the events of the past 12 or, gasp, 24 hours, has little appeal. Increasingly, I am drawn to sites unrelated to the law, however. And I still am compelled to write and am gratified that anyone reads at all.
So I am changing course as a so-called legal blogger. I'll still write about legal issues. I am a lawyer after all. But what interests me about the law isn't the vanilla topics familiar to all. What interests me are the more exotic flavors. Hence, today I linked to a blog on fairy tales, part of an emerging interest I have in finding archetypical stories that correspond to the emotional dramas unfolding in a courtroom. Check out Diamonds & Toads. And I will continue to labor along in my efforts to understand Jesus' parables.
I am not quitting the practice of law. Far from it. I simply intend to use this page as a way of finding images and inspiration in something other than the most obvious impression a mirror can hold.
Thanks for reading.
The Great Fish
I confess that I am a lost soul. So lost, indeed, that I wonder whether it makes sense even to hope of being found, or finding anything really at all. So often when I hear those with faith discuss salvation I wonder, salvation from what? We take on faith our births and gradually come to a sense of self; we flicker, flame, dampen and die. I've no confidence in a life to come. I see no need to wager as did Pascal; there is nothing about human experience that leads me to consider that death is anything other than annihilation. "Come sweet death," Bach wrote.
But still I am puzzled and drawn the accounts of the historical Jesus. The parables attributed to him resonate with me and fascinate me in a way that feels much like a beckoning. The kingdom of heaven is an image I grapple with almost daily. Is it at hand? What can that mean?
The parable of the Great Fish leaves me stone coldand sheds no light. It is reported in the Gospel of Matthew, 13: 47-50, and reads as follows:
“Again, the kingdom of heaven is like a net that was thrown into the sea and caught fish of every kind; when it was full, they drew it ashore, sat down, and put the good into baskets but threw out the bad. So it will be at the end of the age. The angels will come out and separate the evil from the righteous and throw them into the furnace of fire, where there will be weeping and gnashing of teeth."
Weeping and gnashing of teeth? We all know sorrow and grief. I know loss and the weight of what cannot be changed. But angels? Fire? I recall as a child worrying about the afterlife. Neither option appealed: Heaven and endless Hosannas struck terror. Imagine the boredom after several million years of the same old, same old. And Hell? Somehow that seemed less terrifying than heaven. Wouldn't pain eventually cauterize? Isn't the sense of eternity really just an illusion?
Time did not come to an end after the crucifixion of Jesus. The generation that saw his death has passed, and the generation after that, and after that ... on and on into two millenia of time's passing. There is no kingdom to come, and, if there is, worrying it seems pointless. I was unprepared for the life I lead when decades ago I tumbled from a womb.
This parable falls on deaf ears and eyes that cannot see.
But still I am puzzled and drawn the accounts of the historical Jesus. The parables attributed to him resonate with me and fascinate me in a way that feels much like a beckoning. The kingdom of heaven is an image I grapple with almost daily. Is it at hand? What can that mean?
The parable of the Great Fish leaves me stone coldand sheds no light. It is reported in the Gospel of Matthew, 13: 47-50, and reads as follows:
“Again, the kingdom of heaven is like a net that was thrown into the sea and caught fish of every kind; when it was full, they drew it ashore, sat down, and put the good into baskets but threw out the bad. So it will be at the end of the age. The angels will come out and separate the evil from the righteous and throw them into the furnace of fire, where there will be weeping and gnashing of teeth."
Weeping and gnashing of teeth? We all know sorrow and grief. I know loss and the weight of what cannot be changed. But angels? Fire? I recall as a child worrying about the afterlife. Neither option appealed: Heaven and endless Hosannas struck terror. Imagine the boredom after several million years of the same old, same old. And Hell? Somehow that seemed less terrifying than heaven. Wouldn't pain eventually cauterize? Isn't the sense of eternity really just an illusion?
Time did not come to an end after the crucifixion of Jesus. The generation that saw his death has passed, and the generation after that, and after that ... on and on into two millenia of time's passing. There is no kingdom to come, and, if there is, worrying it seems pointless. I was unprepared for the life I lead when decades ago I tumbled from a womb.
This parable falls on deaf ears and eyes that cannot see.
Compulsory Witnesses?
There ought to be a law against adding something to the penal code without at the same time removing something else. Each year, the list of ways in which we can err and become a ward of the state grows longer and longer. Is it any wonder that the United States tops the list of industrialized nations in terms of incarceration rates?
Connecticut is toying with a new law. This one requires folks to report serious crimes when they see them. Failure to do so would become a Class A misdemeanor subjecting a person to up to one year in prison.
This compulsory good citizenship is not applicable to all witnesses of all crimes. An Act Concerning the Failure of a Witness to Report a Serious Crime applies only to murder, assault, sexual assault and physical abuse of a child. Affirmative defenses include a reasonable belief that reporting the crime exposes a defendant to substantial risk of physical injury and a reasonable belief that someone else has already reported the crime.
This new law is really a club to be wielded by prosecutors against reluctant witnesses. Don't want to testify? Fine, go to prison instead. When moral suasion fails then lock 'em up.
Creating a legal duty to step forth as a witness opens a new chapter in overcriminalization. Shots fired in a crowded room? Charge every person in the room with failing to report a crime. But that's unreasonable, you say. Charge 'em all and let the jury sort them out. If you thought the law of conspiracy was formless, just wait until this one hits the books. We're all criminals now.
It is offensive in the extreme to legislate a duty to communicate with the state. The state is a necessary legal fiction. This compulsory requirement to report crimes feels alot like a church confessional. And what priests will dispense forgiveness? Why cops and prosecutors, of course.
Do lawmakers think before they cook up this swill? I predict the bill will pass and then the battle will turn to the courts to kill this fungal obscenity.
Connecticut is toying with a new law. This one requires folks to report serious crimes when they see them. Failure to do so would become a Class A misdemeanor subjecting a person to up to one year in prison.
This compulsory good citizenship is not applicable to all witnesses of all crimes. An Act Concerning the Failure of a Witness to Report a Serious Crime applies only to murder, assault, sexual assault and physical abuse of a child. Affirmative defenses include a reasonable belief that reporting the crime exposes a defendant to substantial risk of physical injury and a reasonable belief that someone else has already reported the crime.
This new law is really a club to be wielded by prosecutors against reluctant witnesses. Don't want to testify? Fine, go to prison instead. When moral suasion fails then lock 'em up.
Creating a legal duty to step forth as a witness opens a new chapter in overcriminalization. Shots fired in a crowded room? Charge every person in the room with failing to report a crime. But that's unreasonable, you say. Charge 'em all and let the jury sort them out. If you thought the law of conspiracy was formless, just wait until this one hits the books. We're all criminals now.
It is offensive in the extreme to legislate a duty to communicate with the state. The state is a necessary legal fiction. This compulsory requirement to report crimes feels alot like a church confessional. And what priests will dispense forgiveness? Why cops and prosecutors, of course.
Do lawmakers think before they cook up this swill? I predict the bill will pass and then the battle will turn to the courts to kill this fungal obscenity.
Woody Allen Becomes A Trial Lawyer
I am hung over today, spent, limp and dangling by a thread. Wherever I was yesterday, or the day before or the day before is a blur. Today I am unsteady and trying hard to catch my bearings. All this and I haven't a drop of alcohol. I'm recovering from a trial. It was a tough one.
The jury is still out, so I do not know whether to laugh or cry. I am unbearable when I win, all ass and elbows high-fiving the stars and strutting. I am also unbearable when I lose, head low, chin plowing a trough as I crawl beneath the nearest rock. Truth be told, I am simply unbearable most of the time. It would take a psychiatrist to figure it all out.
And so I have elected to begin a Freudian psychoanalysis. It's been nearly a month now, four hours a week spent staring at the ceiling of a tiny office free associating. The methodological premise? The analyst is a blind man beside me on the train; I recite what passes by.
So I revel in chaos. One moment unearthing the memory of the first girl to have stolen my heart; the next fretting about a stray remark overheard just the other day. Playing the lead role in my own version of Woody Allen cum trial lawyer is wide open road: I have no idea where I am heading or even why. The ride feels less like a train that a rubber rocket launched into dark room: on impact I try to chart the vector as I carom off in another direction.
A different take on old, old material will no doubt make me a better storyteller. Yet somehow telling my own story seems to be the hardest work of all.
The jury is still out, so I do not know whether to laugh or cry. I am unbearable when I win, all ass and elbows high-fiving the stars and strutting. I am also unbearable when I lose, head low, chin plowing a trough as I crawl beneath the nearest rock. Truth be told, I am simply unbearable most of the time. It would take a psychiatrist to figure it all out.
And so I have elected to begin a Freudian psychoanalysis. It's been nearly a month now, four hours a week spent staring at the ceiling of a tiny office free associating. The methodological premise? The analyst is a blind man beside me on the train; I recite what passes by.
So I revel in chaos. One moment unearthing the memory of the first girl to have stolen my heart; the next fretting about a stray remark overheard just the other day. Playing the lead role in my own version of Woody Allen cum trial lawyer is wide open road: I have no idea where I am heading or even why. The ride feels less like a train that a rubber rocket launched into dark room: on impact I try to chart the vector as I carom off in another direction.
A different take on old, old material will no doubt make me a better storyteller. Yet somehow telling my own story seems to be the hardest work of all.
Thursday, April 9, 2009
Reversal On Client Security Fund; What's Next?
I am, of course, relieved to see that the Legislature and Governor M. Jodi Rell have decided not to seize the Client Security Fund. Theft of funds held in trust is wrong, even when the government does it. Score a victory for the rule of law, but hold tight to your wallet. We lawyers will pay for stamping our feet in protest.
Connecticut is like most other states: broke and reeling. Revenue is needed, and fast. So the state is looking everywhere. It wants concessions from public employees, reduction in services and more money. It would take a magician to do all this while keeping voters happen. How will this magic be performed?
Politics is like a jury trial: It is all about the energy. How do you form a group of disparate individuals into a group acting with one will? Let me reveal some trade secrets learned in a courtroom, and then I will apply them to politics.
A successful trial requires a successful narrative, a story line that makes people want to act. A good lawyer wants something specific, money, a not guilty verdict, fault found on one side of the aisle. But if jurors are to be motivated to do more than act as tiles on an existential abacus they must care about what they are doing.
Hence, every trial is a search for a hero. And if there are no heros, then there must be a villain. Some character must be found in the drama unfolding in the courtroom that impels a jury to act. If they will not love my client, they must, at the very least, harbor deep misgivings about my adversary.
Of course, life is most often nothing like a vast epic. The mass of men may not lead lives of quiet desperation, but, truth be told, most of the time most of us press against a sense of quotidian indifference. Woody Allen once put it well: "Nine tenths of life is just showing up," he said.
Jurors must be motivated to act to take stands. They are motivated to do so when they can identify the good, or discern evil, or, in the alternative, find a comfortable role tucked within the narrative space created by some archtype. Give me a wicked stepmother and my work is half done. Trial is about facts, but only partially so: The real work at trial is bending the facts to fit a narrative drive that runs in the direction you want to go.
It really is that simple.
And so is politics, only more so. A politician need not worry about such things as relevance or materiality. No judge dispassionately sits atop the political heap raining cold, cold water on any spark of passion that dares flame in the mausoleum. Politicians get to gargle with lava.
But they still need to motivate folks to act. So they, too, create narratives.
Here is the narrative I fear in the wake of the Governor’s reversal on the Client Security Fund.
"Friends," she will say," times are tough and we all need to roll up our sleeves and work hard to dig out of this mess. I’ve looked everywhere I can for extra money in the state budge. I even asked lawyers to pitch in and help. But they stood on a technicality, insisting the murderer go free because someone had not read him his rights. As a result, killing debt is still on the loose.
"I cannot find more money in the budget. The well is dry. So I am asking the fortunate among us to do more. I am even going to ask lawyers to put aside their interests in favor of the public good. I propose a one-time tax on any lawyer earning more than the median income for a family of four. I am confident they will agree to pay it. Theirs is, after all, a service profession. In this time of need, I am asking them to serve someone other than themselves. I am confident they will not oppose such a proposal as it is fair and just."
Let’s see if I am right.
Reprinted courtesy of the Connecticut Law Tribune.
Connecticut is like most other states: broke and reeling. Revenue is needed, and fast. So the state is looking everywhere. It wants concessions from public employees, reduction in services and more money. It would take a magician to do all this while keeping voters happen. How will this magic be performed?
Politics is like a jury trial: It is all about the energy. How do you form a group of disparate individuals into a group acting with one will? Let me reveal some trade secrets learned in a courtroom, and then I will apply them to politics.
A successful trial requires a successful narrative, a story line that makes people want to act. A good lawyer wants something specific, money, a not guilty verdict, fault found on one side of the aisle. But if jurors are to be motivated to do more than act as tiles on an existential abacus they must care about what they are doing.
Hence, every trial is a search for a hero. And if there are no heros, then there must be a villain. Some character must be found in the drama unfolding in the courtroom that impels a jury to act. If they will not love my client, they must, at the very least, harbor deep misgivings about my adversary.
Of course, life is most often nothing like a vast epic. The mass of men may not lead lives of quiet desperation, but, truth be told, most of the time most of us press against a sense of quotidian indifference. Woody Allen once put it well: "Nine tenths of life is just showing up," he said.
Jurors must be motivated to act to take stands. They are motivated to do so when they can identify the good, or discern evil, or, in the alternative, find a comfortable role tucked within the narrative space created by some archtype. Give me a wicked stepmother and my work is half done. Trial is about facts, but only partially so: The real work at trial is bending the facts to fit a narrative drive that runs in the direction you want to go.
It really is that simple.
And so is politics, only more so. A politician need not worry about such things as relevance or materiality. No judge dispassionately sits atop the political heap raining cold, cold water on any spark of passion that dares flame in the mausoleum. Politicians get to gargle with lava.
But they still need to motivate folks to act. So they, too, create narratives.
Here is the narrative I fear in the wake of the Governor’s reversal on the Client Security Fund.
"Friends," she will say," times are tough and we all need to roll up our sleeves and work hard to dig out of this mess. I’ve looked everywhere I can for extra money in the state budge. I even asked lawyers to pitch in and help. But they stood on a technicality, insisting the murderer go free because someone had not read him his rights. As a result, killing debt is still on the loose.
"I cannot find more money in the budget. The well is dry. So I am asking the fortunate among us to do more. I am even going to ask lawyers to put aside their interests in favor of the public good. I propose a one-time tax on any lawyer earning more than the median income for a family of four. I am confident they will agree to pay it. Theirs is, after all, a service profession. In this time of need, I am asking them to serve someone other than themselves. I am confident they will not oppose such a proposal as it is fair and just."
Let’s see if I am right.
Reprinted courtesy of the Connecticut Law Tribune.
Thursday, April 2, 2009
The Real Debate About Taxing Lawyers
One would have thought that the British had reasserted their right to tax tea the other day. I was sitting in a judge's chambers hammering away about some arcane issues in a pending criminal case. The prosecutor hammered back. We decided to step back for a moment, and change our angle of vision. So someone started talking about the Attorney Occupation Tax. A public defender was present in the room. Things went from tactical war over limited issues to a battle to death. Even the judge seemed angered over the prospect of an increased tax on lawyers.
I am nonplussed.
We pay a per capita occupational tax of $450 per year in the State of Connecticut. I pay it for the four lawyers working with me as a benefit of employment. Lawmakers want to increase the tax to $640 as a means of yielding revenue in tough times. Somehow news of that strikes me with about as much force as learning the Madonna has breast enhancements.
But the prosecutor and public defender were furious. They are public employees. This tax cut to the bone. They will bleed. It is unfair. Why, sputter, fuss, fume, there ought to be a law.
Taxation of lawyers is controversial in Connecticut just now. Lawmakers recently raided a trust fund created by the Judicial Department for reimbursement of defrauded clients and crisis intervention for impaired lawyers. Late one night and without debate, the Legislature drafted a bill seizing the funds. Without blinking an eye, the governor signed the bill. Poof. Two million dollars gone, and more to come in the future. After weeks of chest-thumping the Connecticut Bar Association conscripted a band of the state's most vanilla lawyers to serve as plaintiffs in a class action suit to challenge the seizure of funds. I applaud the litigation, but I worry about the consequences of success.
Consider: Lawmakers need money. They seize a trust fund. Lawyers sue. The lawyers win the suit and the $2 million is placed back in trust. Then lawmakers decide to raise the occupational tax. Lawyers fuss rage and fume. Perhaps the tax is fought back.
What's the message here? Don't tread on us?
Lawyers aren't exactly popular. We exist because things get broken. Being a lawyer is simply defined as being an ambassador for other people's troubles. But that does not mean we are exempt from the hard times that befall us all. Don't lawyers, too, share some measure of responsibility to the community at large?
We'll bitch about the seizure of trust funds. We'll war over a trifling increase on a tax attendant to the privilege of practicing law. And how will lawmaker's respond? I suspect with a growing impatience that will only yield a less temperate response: Something else will get taxed.
The tax on the occupation is hardly offensive. When I hear a public defender assert that the tax is somehow unfair because they don't charge their client money, I am not moved. Lawyers are lucky. We make good livings as a result of the degrees and skills we possess. If, as a general matter, the state needs a couple of hundred bucks more next year to make ends meet, I don't feel abused by kicking in some dough.
But, as always, a small voice flickers somewhere inside me accusing me of hypocrisy. Increase my taxes and I will simply increase my fees. Public defenders can't do that. But "silence," I say to that small voice of scorn. "Neither do public defenders have to hussle for a fee to make ends meet." Imagine never again having to ask a client to pay his or her bill.
Times are tough. The state needs money. The state will get it one way of the other. An increased occupational tax strikes me as the least objectionable means of doing so. One way or another, the taxman cometh. Pick your poison, but please don't argue that we should, as a class, be spared the bitter pill all must swallow in hard times.
I am nonplussed.
We pay a per capita occupational tax of $450 per year in the State of Connecticut. I pay it for the four lawyers working with me as a benefit of employment. Lawmakers want to increase the tax to $640 as a means of yielding revenue in tough times. Somehow news of that strikes me with about as much force as learning the Madonna has breast enhancements.
But the prosecutor and public defender were furious. They are public employees. This tax cut to the bone. They will bleed. It is unfair. Why, sputter, fuss, fume, there ought to be a law.
Taxation of lawyers is controversial in Connecticut just now. Lawmakers recently raided a trust fund created by the Judicial Department for reimbursement of defrauded clients and crisis intervention for impaired lawyers. Late one night and without debate, the Legislature drafted a bill seizing the funds. Without blinking an eye, the governor signed the bill. Poof. Two million dollars gone, and more to come in the future. After weeks of chest-thumping the Connecticut Bar Association conscripted a band of the state's most vanilla lawyers to serve as plaintiffs in a class action suit to challenge the seizure of funds. I applaud the litigation, but I worry about the consequences of success.
Consider: Lawmakers need money. They seize a trust fund. Lawyers sue. The lawyers win the suit and the $2 million is placed back in trust. Then lawmakers decide to raise the occupational tax. Lawyers fuss rage and fume. Perhaps the tax is fought back.
What's the message here? Don't tread on us?
Lawyers aren't exactly popular. We exist because things get broken. Being a lawyer is simply defined as being an ambassador for other people's troubles. But that does not mean we are exempt from the hard times that befall us all. Don't lawyers, too, share some measure of responsibility to the community at large?
We'll bitch about the seizure of trust funds. We'll war over a trifling increase on a tax attendant to the privilege of practicing law. And how will lawmaker's respond? I suspect with a growing impatience that will only yield a less temperate response: Something else will get taxed.
The tax on the occupation is hardly offensive. When I hear a public defender assert that the tax is somehow unfair because they don't charge their client money, I am not moved. Lawyers are lucky. We make good livings as a result of the degrees and skills we possess. If, as a general matter, the state needs a couple of hundred bucks more next year to make ends meet, I don't feel abused by kicking in some dough.
But, as always, a small voice flickers somewhere inside me accusing me of hypocrisy. Increase my taxes and I will simply increase my fees. Public defenders can't do that. But "silence," I say to that small voice of scorn. "Neither do public defenders have to hussle for a fee to make ends meet." Imagine never again having to ask a client to pay his or her bill.
Times are tough. The state needs money. The state will get it one way of the other. An increased occupational tax strikes me as the least objectionable means of doing so. One way or another, the taxman cometh. Pick your poison, but please don't argue that we should, as a class, be spared the bitter pill all must swallow in hard times.
Connecticut Lawmakers Should Abolish Death Penalty
The death penalty is cruel, wastes money and makes fools of perfectly good men and women. Abolishing it makes both economic and moral sense. But will abolition play in the Legislature, where passion rules and reason is often an unwelcome guest?
The Legislature’s Judiciary Committee approved a measure abolishing the penalty by a vote of 24-13. The bill now goes to the House and Senate. If it is approved there, Gov. M. Jodi Rell will have to decide whether hold her rage-mongering snout and sign off on the bill for it to become law.
The only time the death penalty has been used in Connecticut since 1960 was in the case of Michael Ross. And he was only killed because he engaged in a game of existential chess, outsmarting the state and sneering from the grave in triumph. Ross, you will recall, withdrew his claims for post-conviction relief, throwing lawyers into a dither. Was he insane to make such a choice? The true believers thought so. They fought him, looking to substitute his will for theirs. Just before he was killed he mailed a letter to a psychiatrist who opined that Ross was incapable of making such momentous decisions. "Checkmate," Ross wrote to the physician. The letter arrived after Ross’ death. It was a move worthy of one of Satan’s lieutenants in Paradise Lost.
The rest of the folks on death row have either been there for a long, long time or can look forward to a decade or two of litigation before their cases, and perhaps their lives, come to an end. We spend hundreds of thousands of dollars to keep them healthy and well, so that some sunny day we can kill them in self-righteous glee.
But the real expense comes in litigating these cases. It costs millions to fight one from start to finish. Inevitably, the defendant is represented by a Public Defender. Motions, hearings, claims, arguments, appeals, petitions, examinations, experts, all pursued with the passion of an apostle and fought with the vigor of a Renaissance Pope. The war wearies everyone and yields merely great sport: Lawyers and judges in the role of Baron von Frankenstein, raising contesting claims to life itself.
The legislation pending in Hartford would simply declare that the penalty for a capital felony is life without the possibility of parole. Period. There would be a trial on guilt; the penalty phase of this litigation would end, and so would the need to sift through every record, whether public of not, that recounts the sorry life and times of the defendant. The cost of litigating death claims would disappear.
Abolishing the death penalty would also be good for the mental health of lawyers. An entire industry has arisen to support death penalty litigation. Defense counsel dedicate themselves to it as though it were a priesthood. In the war to save a life, the end justifies the means. The state becomes a murderer; lies are told, sometimes by the lawyers themselves; legal doctrine is twisted like so much putty, pressed to fill the howling sense of desperation felt by those who conclude they are called to save life at any cost. I’ve seen good friends become mere caricatures when lured by the Siren of a capital case. Set these poor souls free, I say. Death is different. The law should not play a game for which we are not equipped.
The criminal law has four purposes: general deterrence, specific deterrence, rehabilitation and punishment. As a society we have apparently decided that some defendants cannot be rehabilitated. I do not agree with that assessment. But even if I am wrong, it is obscene to kill a person convicted of a crime. It mocks justice. It does not deter folks at large: Capital offenses keep occurring, even as death mills in Southern states stack corpses like so much lumber.
Lifetime incarceration incapacitates the convicted; it deters as well or better than death. It costs less. And, it will make for better law. Only a politician addicted to rage will fail to see that.
Abolish the death penalty. Save money. Eliminate sometimes silly litigation. It is a tort reformer’s dream come true.
Reprinted courtesy of the Connecticut Law Tribune.
The Legislature’s Judiciary Committee approved a measure abolishing the penalty by a vote of 24-13. The bill now goes to the House and Senate. If it is approved there, Gov. M. Jodi Rell will have to decide whether hold her rage-mongering snout and sign off on the bill for it to become law.
The only time the death penalty has been used in Connecticut since 1960 was in the case of Michael Ross. And he was only killed because he engaged in a game of existential chess, outsmarting the state and sneering from the grave in triumph. Ross, you will recall, withdrew his claims for post-conviction relief, throwing lawyers into a dither. Was he insane to make such a choice? The true believers thought so. They fought him, looking to substitute his will for theirs. Just before he was killed he mailed a letter to a psychiatrist who opined that Ross was incapable of making such momentous decisions. "Checkmate," Ross wrote to the physician. The letter arrived after Ross’ death. It was a move worthy of one of Satan’s lieutenants in Paradise Lost.
The rest of the folks on death row have either been there for a long, long time or can look forward to a decade or two of litigation before their cases, and perhaps their lives, come to an end. We spend hundreds of thousands of dollars to keep them healthy and well, so that some sunny day we can kill them in self-righteous glee.
But the real expense comes in litigating these cases. It costs millions to fight one from start to finish. Inevitably, the defendant is represented by a Public Defender. Motions, hearings, claims, arguments, appeals, petitions, examinations, experts, all pursued with the passion of an apostle and fought with the vigor of a Renaissance Pope. The war wearies everyone and yields merely great sport: Lawyers and judges in the role of Baron von Frankenstein, raising contesting claims to life itself.
The legislation pending in Hartford would simply declare that the penalty for a capital felony is life without the possibility of parole. Period. There would be a trial on guilt; the penalty phase of this litigation would end, and so would the need to sift through every record, whether public of not, that recounts the sorry life and times of the defendant. The cost of litigating death claims would disappear.
Abolishing the death penalty would also be good for the mental health of lawyers. An entire industry has arisen to support death penalty litigation. Defense counsel dedicate themselves to it as though it were a priesthood. In the war to save a life, the end justifies the means. The state becomes a murderer; lies are told, sometimes by the lawyers themselves; legal doctrine is twisted like so much putty, pressed to fill the howling sense of desperation felt by those who conclude they are called to save life at any cost. I’ve seen good friends become mere caricatures when lured by the Siren of a capital case. Set these poor souls free, I say. Death is different. The law should not play a game for which we are not equipped.
The criminal law has four purposes: general deterrence, specific deterrence, rehabilitation and punishment. As a society we have apparently decided that some defendants cannot be rehabilitated. I do not agree with that assessment. But even if I am wrong, it is obscene to kill a person convicted of a crime. It mocks justice. It does not deter folks at large: Capital offenses keep occurring, even as death mills in Southern states stack corpses like so much lumber.
Lifetime incarceration incapacitates the convicted; it deters as well or better than death. It costs less. And, it will make for better law. Only a politician addicted to rage will fail to see that.
Abolish the death penalty. Save money. Eliminate sometimes silly litigation. It is a tort reformer’s dream come true.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, April 1, 2009
Compulsory Process Is Optional?
The Sixth Amendment's right to compulsory process of witnesses may well fall a victim to the vagaries of federalism next week. And I am not sure what to do about it.
Evidence begins today against my client, a former homicide detective accused of diverting funds intended for confidential informants to his own use. We have pleaded not guilty, studied the state's evidence and interviewed witnesses. Our most important witness is in federal custody, being held out of state. His name is Billy White.
Mr. White is the stuff of legend in New Haven. For many years, he was head of the city's narcotics unit, running what amounted to an almost unreviewable fiefdom. It all came crashing down around his ears in March 2007. That's when the FBI raided the New Haven Police Department headquarters, seizing thousands of documents, and, ultimately, arresting Mr. White, who is now serving federal time after pleading guilty corruption charges.
Mr. White's name is all over the documents in my client's case. Centeral to the state's claim is the assertion that my client used the registration number of an actual confidential informant, CI 01-02, to claim funds, but that the informant never received the money. We'd like to question Mr. White about this, having good reason he'll have plenty to say about the matter.
In the normal course, a lawyer simply prepares a writ of habeas corpus ad testificandum to compel a warden to produce a prisoner and requests that a judge sign it. If the lawyer succeeds in persuading the judge the witness is necessary, the order issues. Thus, if I need someone incarcerated in Connecticut, I simply ask for him. It is that simple.
But in Mr. White's case, the warden is a federal official and the facility is out of state. As a result, the reach of my subpoena power is limited. We've been told point blank by prison officials that they will not honor an order from our judge. He is, after all, a mere state court judge with limited jurisdiction.
However, the prison may just send the fellow along. It is up to them, they say. In order to send him, however, the prosecution must request that Mr. White be sent to Connecticut. The prosecution has accommodated us and made the request. A so-called 10 Point letter has been sent to the prison requesting production of Mr. White. A copy of the judge's order granting my writ of habeas corpus has also beem forwarded to the prison.
Trial begins in about four hours, and, as it does, I have no idea whether Uncle Sam will produce my witness. I hope to put him on the stand next week. The trial court here has ordered that the State of Connecticut shall pay the costs of transporting the witness, and that state officials will retrieve the man and accompany him to the state. There is really nothing for federal officials to do and no expense for a harried prison staff or Marshal's service to incur.
In many years, neither the judge, the prosecution nor I have faced this potential stark limitation on the right to compulsory process. Should the federal prison reject the request we have made to have the prisoner brought here for trial, we'll ask a federal judge for relief. I cannot believe that the Sixth Amendment's reach stops at the door of a federal prison.
Evidence begins today against my client, a former homicide detective accused of diverting funds intended for confidential informants to his own use. We have pleaded not guilty, studied the state's evidence and interviewed witnesses. Our most important witness is in federal custody, being held out of state. His name is Billy White.
Mr. White is the stuff of legend in New Haven. For many years, he was head of the city's narcotics unit, running what amounted to an almost unreviewable fiefdom. It all came crashing down around his ears in March 2007. That's when the FBI raided the New Haven Police Department headquarters, seizing thousands of documents, and, ultimately, arresting Mr. White, who is now serving federal time after pleading guilty corruption charges.
Mr. White's name is all over the documents in my client's case. Centeral to the state's claim is the assertion that my client used the registration number of an actual confidential informant, CI 01-02, to claim funds, but that the informant never received the money. We'd like to question Mr. White about this, having good reason he'll have plenty to say about the matter.
In the normal course, a lawyer simply prepares a writ of habeas corpus ad testificandum to compel a warden to produce a prisoner and requests that a judge sign it. If the lawyer succeeds in persuading the judge the witness is necessary, the order issues. Thus, if I need someone incarcerated in Connecticut, I simply ask for him. It is that simple.
But in Mr. White's case, the warden is a federal official and the facility is out of state. As a result, the reach of my subpoena power is limited. We've been told point blank by prison officials that they will not honor an order from our judge. He is, after all, a mere state court judge with limited jurisdiction.
However, the prison may just send the fellow along. It is up to them, they say. In order to send him, however, the prosecution must request that Mr. White be sent to Connecticut. The prosecution has accommodated us and made the request. A so-called 10 Point letter has been sent to the prison requesting production of Mr. White. A copy of the judge's order granting my writ of habeas corpus has also beem forwarded to the prison.
Trial begins in about four hours, and, as it does, I have no idea whether Uncle Sam will produce my witness. I hope to put him on the stand next week. The trial court here has ordered that the State of Connecticut shall pay the costs of transporting the witness, and that state officials will retrieve the man and accompany him to the state. There is really nothing for federal officials to do and no expense for a harried prison staff or Marshal's service to incur.
In many years, neither the judge, the prosecution nor I have faced this potential stark limitation on the right to compulsory process. Should the federal prison reject the request we have made to have the prisoner brought here for trial, we'll ask a federal judge for relief. I cannot believe that the Sixth Amendment's reach stops at the door of a federal prison.
Subscribe to:
Posts (Atom)
