Horrific crimes involving children can yield even more horrific laws. The abduction of Megan Kanka brought us Megan's law; Adam Walsh's death yielded the Adam Walsh law. There is something about the terror these sorts of crimes inspire that make us want to do something to make sure nothing like them can ever happen again. So we parse the requirements of justice with a meat clever, insuring that others get hurt in the process, as is the case with our scattershot approach to the public registration of all sorts of people as sex offenders.
It did not surprise me, therefore, to see legislation proposed in the wake of the Jaycee Dugard case. The woman was abducted 18 years ago as her horrified father watched. She was then kept prisoner all those years, forced to live in squalor. She bore two of her captor's children. The man accused of his holding her captive, Phillip Garrido, is a convicted sex offender; his wife, too, has been charged.
The case not merely horrifies, it also saddens. Neighbors of the Garrido's in Antioch, California, knew that something was up. The police missed clues. Mr. Garrido's parole officer was apparently asleep at the switch. In sum, this horror was preventable. If only...
If only what? If only people had acted on their hunches. Legislation proposed in three states last week would create a legal duty to act. Called Jaycees Care and Compassion Act, the legislation requires the following.
* A private person with reasonable suspicison to believe his neighbor is engaged in foul play has a legal duty to report this to the police. A person who fails to act can be charged with misprision of a felony.
* A private person with reasonable suspicion to believe his neighbor is engaged in foul play is permitted to demand permission to make a spot search of the neighbor's premises without liability for civil suit or criminal prosecution. A person searching must give the police 30 minutes notice, presumably so police can come, prevent a breach, and, if exigent circumstances arise, do a search of their own.
* Private parties have an affirmative obligation to act. A breach of this obligation supports a claim for civil damages. This claim can be brought either by the victim of any crime, or by the state's victim's advocate.
"We are our neighbor's keepers," said Millicent Truelove, the Idaho Democrat sponsoring the legislation. "This legislation is narrowly focused to require citizens to act, but to keep the state out of our homes. Who can object to a law that seeks merely to promote a broader sense of community?"
Now here is the kicker: This piece is satire, but you didn't suspect that unless you live in Idaho and know there is no such Democrat as Millicent Truelove serving as a lawmaker. Be wary, Jaycee's law is coming. It is merely a question of what form it will take,
Monday, August 31, 2009
Sunday, August 30, 2009
TLC: Thus Spake The Alter Ego ...
Call me an unrepentant Judas, I suppose, for taking a few hours one day this past week to read the IRS 990s on line submitted by the Trial Lawyers College and the Spence Foundation. But I merely raised questions, (See, "The Wizard of Wyoming.") and, surprisingly, no one from the college has seen fit to respond here. But Zarathustra hath spoken. In a message to TLC alumni, Gerry Spence and new board president Jude Basile offer the following, reprinted below.
Perhaps all this is true. But there's a lot of money changing hands, and no real public paper trail. And there are reports that the very issues about which I wrote were raised at board meetings, costing some board members their seats at the council table. It's time to publicize the documents, including the lease. Or do we merely take on faith the words of a man building his own legacy and offering, for free mind you, a certain ranch, if only we contribute a little money. You see ...
Half truths are like half bricks, you can throw them twice as far, but invisible bricks only bear the weight of those prepared to take great leaps of faith. I wish the IRS were so kind with me when I report my income. But then if I claimed I received no rent, and then asserted that the rent I received was for expenses, people would look at me funny.
Spence is good. Subtle ad hominem works well for the already persuaded. But this sound and fury signifies little. When it comes to a former cattle ranch, we're entitled to ask: "Where's the beef?"
I'd love to here from John Nolte, Charles Abourezk, Garvin Isaacs, Joane Garcia-Colson. What's been going in paradise?
When Jesus summoned his disciples to a last supper, he didn't require them to eat off of monogrammed plates. Gerry Spence's trial lawyers college and a new wave of legal education? Maybe; maybe not. Two boards to serve purposes only one need do? Suspicious.
The Alter Ego Hath Spoken
Dear Tribe,
QUESTIONS AND ANSWERS
Questions have arisen lately about the Ranch, fundraising, The Spence Foundation, and TLC.
I was in the first TLC class of 1994. I was invited to be on staff in 1997, and the TLC Board in 1999. In the first few years of TLC, Gerry Spence paid for most, if not all the costs of operating TLC. The tuition charged was meager and did not cover costs. He had some initial contributions from some of the early board members but most of the expense was covered by him.
In early 1998, Tom Meitier also a 1994 graduate came up with the idea of having Gerry speak and raising money to help support TLC. This idea evolved into the Regional Seminars that TLC has today. Other Board members, promoted fundraising and Gerry went along with it. He was often reluctant to attend the fundraisers held at Regionals and TLC and expressed his reluctance. He did attend. We have raised money and it has helped continue the Mission of TLC. The ranch is a special place that as provided a place of opportunity for those who attend to look at themselves in a new way. Who we are as people is often examined. What we do both personally and professionally is examined. The ranch is located in a place of natural beauty, next to the Shoshone Indian Reservation. The ranch is unique and touches many who come to it.
. I am open to any questions raised by our tribe and will seek to be transparent in all we do.
Jude
Here is Gerry’s response to questions raised recently by Norm Pattis :
As some wise man observed -- a half truth is like half a brick. You canthrow it twice as far.
Here are some answers to the careless speculations of Mr. Pattis: TLC pays NO RENT on the entire ranch except the cost of operating the ranch and its upkeep on the buildings. In other words, TLC gets the free use of a multi-million dollar ranch for no rent, which also includes the extensive furnishings of the ranch and its lodge, the dorms and other lodging facilities, including the kitchen. Must be something wrong here, right?
I work most of a year every year without a salary of any kind. Imaging does the same -- no salary for her endless work to make the ranch function. This is a part of our philosophy. All our TLC staff, except the psychodramitists, work at their own expense without pay. So does our board. Must be something wrong here too.
We live in a one room cabin on the ranch. But that cabin is on our private land that adjoins the ranch and is not part of the foundation property. We charge no fee for the cabin's use, and it is used exclusively by us when we are at the ranch for TLC. That Spence and his wife would live in a small, one room cabin after having given up a spectacular ranch house to the college -- well, must be something wrong here too.
Yes, when the lease is up any additions put on the ranch will belong to the Spence Foundation, itself a non-profit entity from which Spence and his wife have never and will never get a penny. But TLC has a right to release the property for another twenty five years under the same terms and conditions. None of us, nor any of our children will be around at the conclusion of this lease. Even so, this ranch will NEVER return to Spence, his family, or anyone other than the non-profit foundation that has legal title to the same. At that time hopefully TLC will still be around and available to rent the ranch for another fifty years.
Gerry and Imaging Spence have never been paid a cent by TLC. Not one cent.Nor will they ever. The Spence Foundation does not receive a penny from TLC except the rent which equals the cost of the ranch's operation. In other words the rent is simply a reimbursement to the foundation of the costs the foundation has incurred during the year for the operation of the ranch. That includes taxes, the cost of the manager and his wife and other employees who keep the ranch operating. This also includes costs of repair and upkeep. Moreover, Spence nor his wife nor any member of his family are paid any sum for the operation of the Spence Foundation. ALL is a gift. Nor has there been a "spreading of one entity across two sets of books,"whatever that means. That acknowledged "suspicion" is a function of Mr.Pattis' extraordinary mind, not some imagined accounting scheme. But surely there must be something wrong here.
Yes, there are Spence family members who are members of both boards, namely Imaging and our son, Kent. The TLC board members also include Kent and Imaging on its board of seventeen members. Spence is now the CEO of the college and is not a member of the board. Imaging, last year, in the fourteenth year of the college, when the operation of the college was in serious crisis, was taken on the board on the motion of Bill Trine and with the unanimous approval of the board since her input on the actual operation of the ranch and the college was essential to the college's survival. Moreover, she designed and supervised the remodel of the kitchen and the Bear Creek house which was a mammoth task that stripped her of most of her available energy for most of this year.
Imaging runs this ranch. Kent has been a member of both boards for many years. He attended the first TLC class, has been instrumental in the college's growth and understands the philosophy of its founders. He is a full time resident of Jackson and is the only member of the board who is available year-round to oversee, from time to time, the requirements of the ranch. All other board members live in distant places so that, but for Kent, no one is present in Wyoming year round to make the necessary decisions from time to time required to keep the ranch in operation. Must certainly be something wrong here as well.
Jude Basil is a member of the Spence Foundation board. He is our new TLC president by a near unanimous choice of the board. Jude was chosen to be a member of the Spence Foundation because when Imaging and I are gone there should be someone from TLC on the foundation board to be certain that its interests are fully understood by the foundation.We do have the same accountants. The Sorensen firm has been our accountants for more than thirty years. They were our accountants when we set up our foundation, and when we established TLC. They know the ins and outs of our history. It would be simply stupid to hire other accountants who have no historical knowledge of the business of TLC and who would end up duplicating much of the work. If there were something wrong here the Sorensen firm would be the first to let us all know, as would our board.
Yes, TLC is in pretty good financial shape, that is to say, thankfully weare not like many non-profits who are in financial difficulty because they were invested in the stock market. We kept our money mostly in government bonds and did not suffer the financial set-backs of many non-profits. Something wrong there too I suppose.
Finally Mr. Pattis threw in the kitchen sink. There have been several members of our board who no longer are part of our organization -- two in over fifteen years I believe. For a bunch of trial lawyers who generally can't agree on anything, that seems like a pretty good record. While I regret greatly the loss of those two and miss them, their departure from TLC is hardly evidence of something wrong somewhere.
What is terribly wrong is that a man like Norm Pattis can use his acknowledged great skills to put together a series of half-truths that make a very honorable institution look like somebody's private scam. Mr. Pattis spent a mammoth amount of time and energy in undertaking his investigation and writing his piece. Would he have used the same energy to join us infighting for the rights of the people who need us in this country.
I spent a morning at our fifteenth year celebration with Mr. Pattis and a number of our other mutual friends. He had come all the way from the East coast to be with old TLC grads who loved the college enough to join us in our celebration. Mr. Pattis and I were within arm's length of each other for several hours of jolly remembrances and good times. Not once did he ask me a single question or discuss or show any interest in discussing the issues he has now dumped on the public, obviously with no other intent than to hurt TLC and its mission.
I have always admired most those who, when they have an issue with me, also have the courage to address it face to face. I agree with Mr. Pattis on one thing: I wouldn't give a nickel for that old fringed jacket of mine. But some think it has historical value, and perhaps the purchaser just wanted an excuse for donating to the college. We are attempting to raise enough money so that we will no longer be required to impose our fund-raising on our students, that is, to raise enough to endow our college permanently.
Now let me join with you and a host of TLC grads whose lives and practices have been changed forever because of the gifts given them by TLC, in celebrating where TLC finds itself today: First, this college belongs to every TLC grad who loves, supports and fights for its continued survival and growth. It does not belong to me or to my family or to any foundation except its own. We are on the brink of bursting into the mainstream of training America's trial lawyers for the ordinary citizen.
Yes, we will always have a few distracters, always those who cannot find in themselves the will to build rather than destroy, who find some kind of piteous pleasure in hurting rather than helping, and, at last, who simply crave to draw attention to themselves. We cannot change them. We can only endure them with the best love and understanding we can muster.
GLS
Perhaps all this is true. But there's a lot of money changing hands, and no real public paper trail. And there are reports that the very issues about which I wrote were raised at board meetings, costing some board members their seats at the council table. It's time to publicize the documents, including the lease. Or do we merely take on faith the words of a man building his own legacy and offering, for free mind you, a certain ranch, if only we contribute a little money. You see ...
Half truths are like half bricks, you can throw them twice as far, but invisible bricks only bear the weight of those prepared to take great leaps of faith. I wish the IRS were so kind with me when I report my income. But then if I claimed I received no rent, and then asserted that the rent I received was for expenses, people would look at me funny.
Spence is good. Subtle ad hominem works well for the already persuaded. But this sound and fury signifies little. When it comes to a former cattle ranch, we're entitled to ask: "Where's the beef?"
I'd love to here from John Nolte, Charles Abourezk, Garvin Isaacs, Joane Garcia-Colson. What's been going in paradise?
When Jesus summoned his disciples to a last supper, he didn't require them to eat off of monogrammed plates. Gerry Spence's trial lawyers college and a new wave of legal education? Maybe; maybe not. Two boards to serve purposes only one need do? Suspicious.
The Alter Ego Hath Spoken
Dear Tribe,
QUESTIONS AND ANSWERS
Questions have arisen lately about the Ranch, fundraising, The Spence Foundation, and TLC.
I was in the first TLC class of 1994. I was invited to be on staff in 1997, and the TLC Board in 1999. In the first few years of TLC, Gerry Spence paid for most, if not all the costs of operating TLC. The tuition charged was meager and did not cover costs. He had some initial contributions from some of the early board members but most of the expense was covered by him.
In early 1998, Tom Meitier also a 1994 graduate came up with the idea of having Gerry speak and raising money to help support TLC. This idea evolved into the Regional Seminars that TLC has today. Other Board members, promoted fundraising and Gerry went along with it. He was often reluctant to attend the fundraisers held at Regionals and TLC and expressed his reluctance. He did attend. We have raised money and it has helped continue the Mission of TLC. The ranch is a special place that as provided a place of opportunity for those who attend to look at themselves in a new way. Who we are as people is often examined. What we do both personally and professionally is examined. The ranch is located in a place of natural beauty, next to the Shoshone Indian Reservation. The ranch is unique and touches many who come to it.
. I am open to any questions raised by our tribe and will seek to be transparent in all we do.
Jude
Here is Gerry’s response to questions raised recently by Norm Pattis :
As some wise man observed -- a half truth is like half a brick. You canthrow it twice as far.
Here are some answers to the careless speculations of Mr. Pattis: TLC pays NO RENT on the entire ranch except the cost of operating the ranch and its upkeep on the buildings. In other words, TLC gets the free use of a multi-million dollar ranch for no rent, which also includes the extensive furnishings of the ranch and its lodge, the dorms and other lodging facilities, including the kitchen. Must be something wrong here, right?
I work most of a year every year without a salary of any kind. Imaging does the same -- no salary for her endless work to make the ranch function. This is a part of our philosophy. All our TLC staff, except the psychodramitists, work at their own expense without pay. So does our board. Must be something wrong here too.
We live in a one room cabin on the ranch. But that cabin is on our private land that adjoins the ranch and is not part of the foundation property. We charge no fee for the cabin's use, and it is used exclusively by us when we are at the ranch for TLC. That Spence and his wife would live in a small, one room cabin after having given up a spectacular ranch house to the college -- well, must be something wrong here too.
Yes, when the lease is up any additions put on the ranch will belong to the Spence Foundation, itself a non-profit entity from which Spence and his wife have never and will never get a penny. But TLC has a right to release the property for another twenty five years under the same terms and conditions. None of us, nor any of our children will be around at the conclusion of this lease. Even so, this ranch will NEVER return to Spence, his family, or anyone other than the non-profit foundation that has legal title to the same. At that time hopefully TLC will still be around and available to rent the ranch for another fifty years.
Gerry and Imaging Spence have never been paid a cent by TLC. Not one cent.Nor will they ever. The Spence Foundation does not receive a penny from TLC except the rent which equals the cost of the ranch's operation. In other words the rent is simply a reimbursement to the foundation of the costs the foundation has incurred during the year for the operation of the ranch. That includes taxes, the cost of the manager and his wife and other employees who keep the ranch operating. This also includes costs of repair and upkeep. Moreover, Spence nor his wife nor any member of his family are paid any sum for the operation of the Spence Foundation. ALL is a gift. Nor has there been a "spreading of one entity across two sets of books,"whatever that means. That acknowledged "suspicion" is a function of Mr.Pattis' extraordinary mind, not some imagined accounting scheme. But surely there must be something wrong here.
Yes, there are Spence family members who are members of both boards, namely Imaging and our son, Kent. The TLC board members also include Kent and Imaging on its board of seventeen members. Spence is now the CEO of the college and is not a member of the board. Imaging, last year, in the fourteenth year of the college, when the operation of the college was in serious crisis, was taken on the board on the motion of Bill Trine and with the unanimous approval of the board since her input on the actual operation of the ranch and the college was essential to the college's survival. Moreover, she designed and supervised the remodel of the kitchen and the Bear Creek house which was a mammoth task that stripped her of most of her available energy for most of this year.
Imaging runs this ranch. Kent has been a member of both boards for many years. He attended the first TLC class, has been instrumental in the college's growth and understands the philosophy of its founders. He is a full time resident of Jackson and is the only member of the board who is available year-round to oversee, from time to time, the requirements of the ranch. All other board members live in distant places so that, but for Kent, no one is present in Wyoming year round to make the necessary decisions from time to time required to keep the ranch in operation. Must certainly be something wrong here as well.
Jude Basil is a member of the Spence Foundation board. He is our new TLC president by a near unanimous choice of the board. Jude was chosen to be a member of the Spence Foundation because when Imaging and I are gone there should be someone from TLC on the foundation board to be certain that its interests are fully understood by the foundation.We do have the same accountants. The Sorensen firm has been our accountants for more than thirty years. They were our accountants when we set up our foundation, and when we established TLC. They know the ins and outs of our history. It would be simply stupid to hire other accountants who have no historical knowledge of the business of TLC and who would end up duplicating much of the work. If there were something wrong here the Sorensen firm would be the first to let us all know, as would our board.
Yes, TLC is in pretty good financial shape, that is to say, thankfully weare not like many non-profits who are in financial difficulty because they were invested in the stock market. We kept our money mostly in government bonds and did not suffer the financial set-backs of many non-profits. Something wrong there too I suppose.
Finally Mr. Pattis threw in the kitchen sink. There have been several members of our board who no longer are part of our organization -- two in over fifteen years I believe. For a bunch of trial lawyers who generally can't agree on anything, that seems like a pretty good record. While I regret greatly the loss of those two and miss them, their departure from TLC is hardly evidence of something wrong somewhere.
What is terribly wrong is that a man like Norm Pattis can use his acknowledged great skills to put together a series of half-truths that make a very honorable institution look like somebody's private scam. Mr. Pattis spent a mammoth amount of time and energy in undertaking his investigation and writing his piece. Would he have used the same energy to join us infighting for the rights of the people who need us in this country.
I spent a morning at our fifteenth year celebration with Mr. Pattis and a number of our other mutual friends. He had come all the way from the East coast to be with old TLC grads who loved the college enough to join us in our celebration. Mr. Pattis and I were within arm's length of each other for several hours of jolly remembrances and good times. Not once did he ask me a single question or discuss or show any interest in discussing the issues he has now dumped on the public, obviously with no other intent than to hurt TLC and its mission.
I have always admired most those who, when they have an issue with me, also have the courage to address it face to face. I agree with Mr. Pattis on one thing: I wouldn't give a nickel for that old fringed jacket of mine. But some think it has historical value, and perhaps the purchaser just wanted an excuse for donating to the college. We are attempting to raise enough money so that we will no longer be required to impose our fund-raising on our students, that is, to raise enough to endow our college permanently.
Now let me join with you and a host of TLC grads whose lives and practices have been changed forever because of the gifts given them by TLC, in celebrating where TLC finds itself today: First, this college belongs to every TLC grad who loves, supports and fights for its continued survival and growth. It does not belong to me or to my family or to any foundation except its own. We are on the brink of bursting into the mainstream of training America's trial lawyers for the ordinary citizen.
Yes, we will always have a few distracters, always those who cannot find in themselves the will to build rather than destroy, who find some kind of piteous pleasure in hurting rather than helping, and, at last, who simply crave to draw attention to themselves. We cannot change them. We can only endure them with the best love and understanding we can muster.
GLS
"The Real Wizard of Oz..."
L. Frank Baum's Wizard of Oz is one of my favorite stories. I saw the movie starring Judy Garland long before I read the book. But in adulthood, I reread the story every year. This simple tale about power, longing, hope and courage rates right up there with the New Testament, Homer's Odyssey and other great works of literature that sustain me.
Rebecca Loncraine's new biography of L. Frank Baum, The Real Wizard of Oz: The Life and Times of L. Frank Baum, (Gotham, 2009) appealed because I know so little about the genius who wrote the story. A review in the New York Times book review caught my eye; soon enough, the book was mine.
Loncraine is Welsh, with a Ph.D. in English literature from Oxford. At first, that put me off. What can she know of this quintessentially American storyteller. I struggled through the first chapter or so, feeling the work was over-written. But soon enough the work's exacting attention to detail gripped me. Mysterious disappearances of aroenauts over Lake Michigan in their balloons resonate; so do troubled times spent in Aberdeen, South Dakota, and worries about weather; the what of spiritualists trying to communicate with the dead. Each nook and cranny of Baum's life and experience is brought to life. Those who know the story of Oz well can find the source of much loved images in the ordinary data of experience.
This is a wonderful book for those interested in Oz's creator and the formative influences making possible this lovely tale. There is a decent bibliography at the book's ending for those who want to know more. For my part, I learned about an author whose works I did not know, Andrew Lang. I've just spent a delightful half an hour or so reading about Lang in various bibliographic databases, and have ordered an annotated bibliography of his works. Lang popularized fairy tales in the United States a century ago. We need the nourishing power of those stories in our time as well. I am looking forward to reading The Blue Fairy Book, which I also ordered today.
Dorothy's trip to Oz took the form of a book in 1900. But it has become so much more than a book. "We're not in Kansas anymore," were lines she first uttered; we say them know when we find ourselves suddenly stretched to see things anew.
I am entranced by Loncraine's book, and looking forward to another reading of The Wonderful Wizard of Oz. There is magic there, nourishing magic for thirst souls.
Rebecca Loncraine's new biography of L. Frank Baum, The Real Wizard of Oz: The Life and Times of L. Frank Baum, (Gotham, 2009) appealed because I know so little about the genius who wrote the story. A review in the New York Times book review caught my eye; soon enough, the book was mine.
Loncraine is Welsh, with a Ph.D. in English literature from Oxford. At first, that put me off. What can she know of this quintessentially American storyteller. I struggled through the first chapter or so, feeling the work was over-written. But soon enough the work's exacting attention to detail gripped me. Mysterious disappearances of aroenauts over Lake Michigan in their balloons resonate; so do troubled times spent in Aberdeen, South Dakota, and worries about weather; the what of spiritualists trying to communicate with the dead. Each nook and cranny of Baum's life and experience is brought to life. Those who know the story of Oz well can find the source of much loved images in the ordinary data of experience.
This is a wonderful book for those interested in Oz's creator and the formative influences making possible this lovely tale. There is a decent bibliography at the book's ending for those who want to know more. For my part, I learned about an author whose works I did not know, Andrew Lang. I've just spent a delightful half an hour or so reading about Lang in various bibliographic databases, and have ordered an annotated bibliography of his works. Lang popularized fairy tales in the United States a century ago. We need the nourishing power of those stories in our time as well. I am looking forward to reading The Blue Fairy Book, which I also ordered today.
Dorothy's trip to Oz took the form of a book in 1900. But it has become so much more than a book. "We're not in Kansas anymore," were lines she first uttered; we say them know when we find ourselves suddenly stretched to see things anew.
I am entranced by Loncraine's book, and looking forward to another reading of The Wonderful Wizard of Oz. There is magic there, nourishing magic for thirst souls.
Censorship In Paradise?
Whither Joane Garcia-Colson?
I wrote about Joane's departure from Gerry Spence's Trial Lawyers College a few days ago. She was executive director for the past nine years. Rumor has it she fled the ranch under a cloud, taking with her a fat severance package. I wondered whether her departure was related to the departure of board members in years passed. Was the college pruning all but those punch drunk on Kool Aid?
Since writing the piece, I received a series of emails, some as comments on this page, others privately. I can't say I've stirred a hornet's nest. Those affiliated with the ranch are too savvy to acknowledge criticism. Ignoring critics is passed off as refusing to share power; call if the flip side of the oft-repeated big lie that becomes "truth." Ignoring dissidents and difficult questions can also yield conformity: Humming in unison becomes the music of the spheres.
But a bunch of we mosquitoes are raising questions.
Why is the ranch perceived as belonging to the college when, in fact, it belongs to the Spence Foundation? Are donations used to make improvements to an entity over which the college has no control? Are the boards of the Spence Foundation and the Trial Lawyers College so interlocking as to really reflect the will of one group, or, as the case may be, of one man? What are the terms of the lease between the college and foundation?
I was curious to see if Joane weighed in on the topic. So I went to the Trial Lawyers College website. I checked the list of alumni blogs. My blog was not listed, which is fine: I've not sought, nor am I seeking, a listing. But Joane's is listed on the college website at http://www.ljgc.wordpress.com/. So I clicked on and received a note that her blog is "temporarily unavailable." Try it youself: The college's website is http://www.triallawyerscollege.com/. I did not have that problem with any other blog listed on the page.
So I typed in the address of Joane's blog. Lo and behold, I can retrieve it; I just cannot retrieve it through the college's website. Has she been blacklisted from the tribe?
The title of her last piece is "Blind Loyalty, Betrayal and Self-Preservation: The Silencing of Dissent." It is a bitter piece that names no names. It has the feel of being written just this side of a non-disparagement clause in a separation agreement. Why is her page now suddenly unavailable via the college's website? Is there now censorship in paradise, too?
I wrote about Joane's departure from Gerry Spence's Trial Lawyers College a few days ago. She was executive director for the past nine years. Rumor has it she fled the ranch under a cloud, taking with her a fat severance package. I wondered whether her departure was related to the departure of board members in years passed. Was the college pruning all but those punch drunk on Kool Aid?
Since writing the piece, I received a series of emails, some as comments on this page, others privately. I can't say I've stirred a hornet's nest. Those affiliated with the ranch are too savvy to acknowledge criticism. Ignoring critics is passed off as refusing to share power; call if the flip side of the oft-repeated big lie that becomes "truth." Ignoring dissidents and difficult questions can also yield conformity: Humming in unison becomes the music of the spheres.
But a bunch of we mosquitoes are raising questions.
Why is the ranch perceived as belonging to the college when, in fact, it belongs to the Spence Foundation? Are donations used to make improvements to an entity over which the college has no control? Are the boards of the Spence Foundation and the Trial Lawyers College so interlocking as to really reflect the will of one group, or, as the case may be, of one man? What are the terms of the lease between the college and foundation?
I was curious to see if Joane weighed in on the topic. So I went to the Trial Lawyers College website. I checked the list of alumni blogs. My blog was not listed, which is fine: I've not sought, nor am I seeking, a listing. But Joane's is listed on the college website at http://www.ljgc.wordpress.com/. So I clicked on and received a note that her blog is "temporarily unavailable." Try it youself: The college's website is http://www.triallawyerscollege.com/. I did not have that problem with any other blog listed on the page.
So I typed in the address of Joane's blog. Lo and behold, I can retrieve it; I just cannot retrieve it through the college's website. Has she been blacklisted from the tribe?
The title of her last piece is "Blind Loyalty, Betrayal and Self-Preservation: The Silencing of Dissent." It is a bitter piece that names no names. It has the feel of being written just this side of a non-disparagement clause in a separation agreement. Why is her page now suddenly unavailable via the college's website? Is there now censorship in paradise, too?
The Joy Of Hate Mail
I hate to say this, for fear of what it will attract, but anonymous hate mail is good for the soul. I get a piece from time to time. Receiving it is sort of like an atheist's trip to a confessional. I spin through all the folks who've left a foul taste in my mouth, and wonder who among them recalls my taste so well they feel the need to spit.
Last week, a piece arrived. How do I do it?, the writer asked. How do I manage to portray myself as high-minded, when, truth be known, all my clients hate me; I am disloyal, a hypocrite, etc. I'd have been better off if years ago I had taken more professional ethics courses. Or perhaps a trip to the zoo: I should watch how animals protect their young, and do likewise with clients.
I confess to hypocrisy. I will print anonymous comments that are nice; I generally don't print the ones that are blatantly defamatory. A writer who is going to take dead aim behind a cloak of anonymity is suspect, a coward, really, cowering behind a cloak and casting stones. And one given to blanket overstatement should write a blog of their own, and not litter my page with swill.
But I did run down the checklist of those whom I know to feel aggrieved by me. It is a long list, and that, I am afraid, is the life I have chosen. Some former clients do feel betrayed. I have asked the court for permission to withdraw when my client's objectives have become repugnant to me. I have also defended myself when foolish accusations have been made. I have never suffered either a malpractice verdict against me nor have I been disciplined by the bar. But I have made mistakes. No question about it.
Lawyering is tough work. We hang our shingles and invite the world to call with their troubles. Like all diagnosticians, we sometimes do not know what we are looking at until well into a case. Is the client a target of police harassment, or so deluded that they would damn the world before accepting responsibility for their own failings? Applying the zoo metaphor, some of the folks requiring legal representation would never be on display in a zoo: natural selection would have killed them off long ago.
But I thank the hateful writer. This past weekend, I have reviewed my hate list. There are folks on it who have vowed to kill me. We keep a list of threats in the office in case I turn up missing. And I am painfully aware of cases on which I could have done a better job. I am also aware that there are times when a client would be better off with a different lawyer, or, perhaps, with medication and a psychiatrist.
Am I perfect? Nope. Not even close. But that doesn't mean I will give up trying. So how do I do it? I pick up my bed each day and walk toward the brightest light I can find. What's your excuse?
Last week, a piece arrived. How do I do it?, the writer asked. How do I manage to portray myself as high-minded, when, truth be known, all my clients hate me; I am disloyal, a hypocrite, etc. I'd have been better off if years ago I had taken more professional ethics courses. Or perhaps a trip to the zoo: I should watch how animals protect their young, and do likewise with clients.
I confess to hypocrisy. I will print anonymous comments that are nice; I generally don't print the ones that are blatantly defamatory. A writer who is going to take dead aim behind a cloak of anonymity is suspect, a coward, really, cowering behind a cloak and casting stones. And one given to blanket overstatement should write a blog of their own, and not litter my page with swill.
But I did run down the checklist of those whom I know to feel aggrieved by me. It is a long list, and that, I am afraid, is the life I have chosen. Some former clients do feel betrayed. I have asked the court for permission to withdraw when my client's objectives have become repugnant to me. I have also defended myself when foolish accusations have been made. I have never suffered either a malpractice verdict against me nor have I been disciplined by the bar. But I have made mistakes. No question about it.
Lawyering is tough work. We hang our shingles and invite the world to call with their troubles. Like all diagnosticians, we sometimes do not know what we are looking at until well into a case. Is the client a target of police harassment, or so deluded that they would damn the world before accepting responsibility for their own failings? Applying the zoo metaphor, some of the folks requiring legal representation would never be on display in a zoo: natural selection would have killed them off long ago.
But I thank the hateful writer. This past weekend, I have reviewed my hate list. There are folks on it who have vowed to kill me. We keep a list of threats in the office in case I turn up missing. And I am painfully aware of cases on which I could have done a better job. I am also aware that there are times when a client would be better off with a different lawyer, or, perhaps, with medication and a psychiatrist.
Am I perfect? Nope. Not even close. But that doesn't mean I will give up trying. So how do I do it? I pick up my bed each day and walk toward the brightest light I can find. What's your excuse?
Thursday, August 27, 2009
A Nation Of Perverts? Or Simply Silly Prudes?
You know our laws regarding sexual misconduct have gone haywire when they make the front page of Britain's Economist. The weekly news magazine's beat is the world. It is highbrow, sophisticated, and targeted toward policymakers with clout. Think Time magazine for Mensa members.
The front page of the August 8-14 edition carries the following headline: "America's unjust sex laws." What follows are four of the most sensible pages of prose written on what I refer to as the New Prudery.
Yes, it was horrible that Megan Kanka was abducted and killed by a man who twice before had been convicted of sex offences. The neighbors never knew. So we passed Megan's law, and we now all but plaster the faces of each and every person convicted of a sex offense on milk cartons. And then Adam Walsh's father got in the act. The Adam Walsh Act, named after another murdered child, will soon require that states make their sex offender registries public. We can vet each and every neighbor to see whether they too have played outside the lines of our ever tightening libidinal box.
But just who belongs in this box? Sure, let me know if there is rapist in my midst, or a man or woman intent on violence. But there are some 640,000 Americans on sex offender registries -- that is more than the population of North Dakota, Vermont or Wyoming. And the numbers keep growing. Not all of these folks are dangerous. Most, in fact, are guilty of nothing more that curiosity, or isolated acts of bad judgment.
Some prosecutors now regard it as a sex offense for one teenager to pass along a photograph of them self to another teenager, a practice known as "sexting." Or how about the young man who looks at some child pornography one night on the computer? He, too, is a sex offender. So are some young men who have consensual sexual relations with another young person.
Lawmakers just keep pouring fuel on the fire. In an effort to appear tough on crime, lawmakers rarely scale back laws regarding sex offenses. They engage in what the Economist calls the "ratchet effect." They try to outdo one another with harsh penalties and consequences. "Every lawmaker who wants to sound tough on sex offenders has to propose a law tougher than the one enacted by the last politician who wanted to sound tough on sex offenders," the magazine notes.
A man or woman facing a sex offense really faces four harms. There is the obvious threat of incarceration, a very real possibility given the both the states and the federal governments increasingly resort to mandatory minimum sentences. And then there are the gifts that keep on giving, long after a prison term is completed: new-found and disabling status as a felon; the requirement, often for life, to register on a public sex offender registry; and, the silent but deadly requirement that a person engage in "treatment." Lives are wantonly ruined over simple acts of curiosity.
The Economist reports that Human Rights Watch calls for the United States to scale back requirements regarding registration as a sex offender. These registries simplify vigilante violence by targeting potential victims. The great failing of the American criminal justice system as regards sex offenders is the failure to draw distinctions between lesser and more serious offenses.
Did you know, ladies and gentlemen, the urinating in public is considered by some to be a sex offense? "Guilty," I plead, guilty as charged of the ever-present need among all men over the age of 50 to pee often. Should I wear a trench coat the next time I am huddled along side my car? And will it serve as mitigation if I tell my sentencing judge that I shook my offending member but once to drive off the lingering drops?
I speak to clients and prospective clients almost daily about the need to educate lawmakers in our midst. Let the Solons know that the sex offender laws are a public health epidemic. The war on sex is much like the war on drugs, a costly failure. In weeks to come, I think I will preach less and simply hand out copies of the piece from the Economist. When the world notices our folly, it is well past time for us to pay attention.
Read the Economist piece. Read it and weep. And then send a copy to a lawmaker in a plain wrapper and pray he or she has the courage to read all four pages.
The front page of the August 8-14 edition carries the following headline: "America's unjust sex laws." What follows are four of the most sensible pages of prose written on what I refer to as the New Prudery.
Yes, it was horrible that Megan Kanka was abducted and killed by a man who twice before had been convicted of sex offences. The neighbors never knew. So we passed Megan's law, and we now all but plaster the faces of each and every person convicted of a sex offense on milk cartons. And then Adam Walsh's father got in the act. The Adam Walsh Act, named after another murdered child, will soon require that states make their sex offender registries public. We can vet each and every neighbor to see whether they too have played outside the lines of our ever tightening libidinal box.
But just who belongs in this box? Sure, let me know if there is rapist in my midst, or a man or woman intent on violence. But there are some 640,000 Americans on sex offender registries -- that is more than the population of North Dakota, Vermont or Wyoming. And the numbers keep growing. Not all of these folks are dangerous. Most, in fact, are guilty of nothing more that curiosity, or isolated acts of bad judgment.
Some prosecutors now regard it as a sex offense for one teenager to pass along a photograph of them self to another teenager, a practice known as "sexting." Or how about the young man who looks at some child pornography one night on the computer? He, too, is a sex offender. So are some young men who have consensual sexual relations with another young person.
Lawmakers just keep pouring fuel on the fire. In an effort to appear tough on crime, lawmakers rarely scale back laws regarding sex offenses. They engage in what the Economist calls the "ratchet effect." They try to outdo one another with harsh penalties and consequences. "Every lawmaker who wants to sound tough on sex offenders has to propose a law tougher than the one enacted by the last politician who wanted to sound tough on sex offenders," the magazine notes.
A man or woman facing a sex offense really faces four harms. There is the obvious threat of incarceration, a very real possibility given the both the states and the federal governments increasingly resort to mandatory minimum sentences. And then there are the gifts that keep on giving, long after a prison term is completed: new-found and disabling status as a felon; the requirement, often for life, to register on a public sex offender registry; and, the silent but deadly requirement that a person engage in "treatment." Lives are wantonly ruined over simple acts of curiosity.
The Economist reports that Human Rights Watch calls for the United States to scale back requirements regarding registration as a sex offender. These registries simplify vigilante violence by targeting potential victims. The great failing of the American criminal justice system as regards sex offenders is the failure to draw distinctions between lesser and more serious offenses.
Did you know, ladies and gentlemen, the urinating in public is considered by some to be a sex offense? "Guilty," I plead, guilty as charged of the ever-present need among all men over the age of 50 to pee often. Should I wear a trench coat the next time I am huddled along side my car? And will it serve as mitigation if I tell my sentencing judge that I shook my offending member but once to drive off the lingering drops?
I speak to clients and prospective clients almost daily about the need to educate lawmakers in our midst. Let the Solons know that the sex offender laws are a public health epidemic. The war on sex is much like the war on drugs, a costly failure. In weeks to come, I think I will preach less and simply hand out copies of the piece from the Economist. When the world notices our folly, it is well past time for us to pay attention.
Read the Economist piece. Read it and weep. And then send a copy to a lawmaker in a plain wrapper and pray he or she has the courage to read all four pages.
Wednesday, August 26, 2009
The Wizard of Wyoming?
Plenty of money was generated at Gerry Spence’s Trial Lawyers College last weekend at an auction of Spence memorabilia. A used leather jacket of Spence’s, replete with a hole in the pocket, went for more than $10,000. A roll-top desk went for $3,000.There were photos, books and art work. I left midway through the auction and already for $38,000 had been generated. All proceeds went to the college, we are told.
But what does that mean?
The Trial Lawyer’s College is a 501c(3) tax-exempt organization. Its mission is the education of trial lawyers. The facility sits on the land of what was once a former cattle ranch owned by Spence. The vast bulk of the land is now a wildlife preserve. But the buildings and the grounds surrounding it belong to someone. Who?
The land and buildings are apparently owned by the Spence Foundation. IRS records reflect that the land had a so-called book value of $2.7 million in 2007; the buildings and improvements had a book value of almost $1.5 million. Gerry Spence and his son are co-trustees; so is the brand new president of the Trial Lawyers College.
In 2007, the most recent year for which reports are available, the Spence Foundation received rents of $242,580. During that same year, the foundation paid out about $233,000 in contributions made to the Trial Lawyers College. Query: Did the college pay the foundation rent and then receive the funds back as contributions? It is hard to tell from the IRS Form 990s submitted by both entities: The college does not carry a line item reflecting the $233,000 contribution; neither does the college carry a line item reflecting rent paid.
The Trial Lawyers College leases the ranch from the Spence Foundation. Under the terms of the lease, the college pays for all of the ranch’s upkeep costs. Any improvements done to the ranch become property of the foundation when and if the lease is not renewed. During the past 18 months, more than $200,000 of improvements have apparently been done at the facility, all paid for by the college, but belonging to the foundation. Were indpendent contractors hired to do the work? If the foundation does not renew the lease, it enjoys a windfall. Isn’t that self-dealing?
The boards of the college and the foundation are interlocking. Several years ago Senator Chuck Grassley of Iowa raised questions about shenanigans engaged in by the wealthy. Grassley cited Spence and the college as an example. Nothing came of Grassley’s fulminations, but, at about that time, Spence named one of the Trial Lawyers College’s star students to the board of the family foundation. This past weekend that same student, Jude Basile, was named president of the college. Recently, Spence’s wife, Imaging, a non-lawyer, was named to the board of the Trial Lawyers College. Incest anyone?
There has been a quiet blood-letting on the board of the Trial Lawyers College for the past several years. Garvin Isaacs and Charles Abourezk, two lawyers with national reputations long before they stepped foot on the ranch, are no longer present. John Nolte, one of the nation’s leading psychodramatists, has also departed. There are rumblings that all these departures were due in part to disagreements with how the various boards managing the property counted beans. Earlier this year, the college’s executive director of nine years, Joanne Garcia Colson left, reportedly with a fat severance package.
The current board of the Trial Lawyers College is chock full of people who’ve drank the Kool Aid, and decided it is good, very good. One lawyer boasts that his firm is comprised of nothing but graduates of the college. It almost seems as if folks are required to draft a testimonial pledge before taking a seat at the council table. There’s a secret oath, too: "Lemme be a lemming" repeated three times in rapid succession.
The college is hoping to build a library in Spence’s honor at the ranch at an estimated cost of some $2 million. The library will apparently be property of the foundation. Do donors know this? Do they care? Why not a library at a public institution, such as the University of Wyoming's School of Law?
Both the Spence Foundation and the Trial Lawyers College are well managed. In 2007, the foundation listed assets and a fund balance of $4.2 million, but cash on hand of just $15,000; the college ended the year with savings and temporary cash investments of $1.8 million. It looks suspicious, like one entity spread across two sets of books.
These numbers and the relationship between the foundation and college startled me. Interlocking boards. The same accounting firm handling both sets of books. The new president of the college serving on the board of the family foundation. Independent voices driven from the board. This combined with the fact that Spence and his wife maintain a private dwelling on the ranch create the suspicion that the corporate veils separating these entities are transparent; sitting behind these veils is one very satisfied man.
Imagine holding a garage sale of castaways and using the money generated to put a roof over your head. Imagine further that’s all tax free. Imagine, if you will, that it was all legal. The Wizard of Oz should be Lilliputian green with envy.
Spence is a great lawyer. He can cast stones at corporations and big government with the best of them. But wealth and power corrupt individuals, too. The ancients knew this, and warned against plutocracy. It saddens me to think of Spence as a plutocrat. I hope I have misread these tax documents and their meaning.
But what does that mean?
The Trial Lawyer’s College is a 501c(3) tax-exempt organization. Its mission is the education of trial lawyers. The facility sits on the land of what was once a former cattle ranch owned by Spence. The vast bulk of the land is now a wildlife preserve. But the buildings and the grounds surrounding it belong to someone. Who?
The land and buildings are apparently owned by the Spence Foundation. IRS records reflect that the land had a so-called book value of $2.7 million in 2007; the buildings and improvements had a book value of almost $1.5 million. Gerry Spence and his son are co-trustees; so is the brand new president of the Trial Lawyers College.
In 2007, the most recent year for which reports are available, the Spence Foundation received rents of $242,580. During that same year, the foundation paid out about $233,000 in contributions made to the Trial Lawyers College. Query: Did the college pay the foundation rent and then receive the funds back as contributions? It is hard to tell from the IRS Form 990s submitted by both entities: The college does not carry a line item reflecting the $233,000 contribution; neither does the college carry a line item reflecting rent paid.
The Trial Lawyers College leases the ranch from the Spence Foundation. Under the terms of the lease, the college pays for all of the ranch’s upkeep costs. Any improvements done to the ranch become property of the foundation when and if the lease is not renewed. During the past 18 months, more than $200,000 of improvements have apparently been done at the facility, all paid for by the college, but belonging to the foundation. Were indpendent contractors hired to do the work? If the foundation does not renew the lease, it enjoys a windfall. Isn’t that self-dealing?
The boards of the college and the foundation are interlocking. Several years ago Senator Chuck Grassley of Iowa raised questions about shenanigans engaged in by the wealthy. Grassley cited Spence and the college as an example. Nothing came of Grassley’s fulminations, but, at about that time, Spence named one of the Trial Lawyers College’s star students to the board of the family foundation. This past weekend that same student, Jude Basile, was named president of the college. Recently, Spence’s wife, Imaging, a non-lawyer, was named to the board of the Trial Lawyers College. Incest anyone?
There has been a quiet blood-letting on the board of the Trial Lawyers College for the past several years. Garvin Isaacs and Charles Abourezk, two lawyers with national reputations long before they stepped foot on the ranch, are no longer present. John Nolte, one of the nation’s leading psychodramatists, has also departed. There are rumblings that all these departures were due in part to disagreements with how the various boards managing the property counted beans. Earlier this year, the college’s executive director of nine years, Joanne Garcia Colson left, reportedly with a fat severance package.
The current board of the Trial Lawyers College is chock full of people who’ve drank the Kool Aid, and decided it is good, very good. One lawyer boasts that his firm is comprised of nothing but graduates of the college. It almost seems as if folks are required to draft a testimonial pledge before taking a seat at the council table. There’s a secret oath, too: "Lemme be a lemming" repeated three times in rapid succession.
The college is hoping to build a library in Spence’s honor at the ranch at an estimated cost of some $2 million. The library will apparently be property of the foundation. Do donors know this? Do they care? Why not a library at a public institution, such as the University of Wyoming's School of Law?
Both the Spence Foundation and the Trial Lawyers College are well managed. In 2007, the foundation listed assets and a fund balance of $4.2 million, but cash on hand of just $15,000; the college ended the year with savings and temporary cash investments of $1.8 million. It looks suspicious, like one entity spread across two sets of books.
These numbers and the relationship between the foundation and college startled me. Interlocking boards. The same accounting firm handling both sets of books. The new president of the college serving on the board of the family foundation. Independent voices driven from the board. This combined with the fact that Spence and his wife maintain a private dwelling on the ranch create the suspicion that the corporate veils separating these entities are transparent; sitting behind these veils is one very satisfied man.
Imagine holding a garage sale of castaways and using the money generated to put a roof over your head. Imagine further that’s all tax free. Imagine, if you will, that it was all legal. The Wizard of Oz should be Lilliputian green with envy.
Spence is a great lawyer. He can cast stones at corporations and big government with the best of them. But wealth and power corrupt individuals, too. The ancients knew this, and warned against plutocracy. It saddens me to think of Spence as a plutocrat. I hope I have misread these tax documents and their meaning.
Why Not Public Defenders For All?
I’ve been watching the debate about national health care with a sinking feeling in my stomach. If it is this hard to build a consensus around assuring that all Americans have access to decent health care, how will we ever summon the conviction necessary to make sure that all Americans have the right to a decent defense when accused of a crime?
Each and every American accused of a crime should have the right to a court-appointed lawyer and the funds necessary to investigate and present a defense. It’s only fair, after all: A decision to prosecute is always supported by public funds. A state’s attorney brings a case, and his or her office has investigators, state-supported experts and police officers on tap to advance the state’s position. Taxpayers pay for it all.
When a citizen is charged with a crime, however, they must decide whether to retain a lawyer. Indigent folks get a public defender after payment of a nominal application fee. The vast majority of Americans are ineligible for public assistance for their defense. These folks must hustle up fees for an attorney, investigators and experts to meet the state’s case in the open warfare we call trial.
Why is it that a financial penalty is imposed on folks presumed innocent? The state prosecutes for free; a family faces financial ruin mustering a defense because they earn too much to qualify for a public defender. Even if the defendant wins, the state is still off the hook. That is taking the American rule altogether too far. When the state loses a criminal case, it ought to pay the winner’s costs.
On the civil side, the American rule is justified as a means of keeping the courthouse open to all. We don’t want barriers placed in the path of ordinary Americans seeking justice. But the same should not be the case in the criminal courts. We hem the state in with elaborate checks and balances in order to keep its power in check. When it comes to the decision to prosecute, however, the state is limited only by the mere need to show probable cause, a standard so low that few mere mortals can shuffle beneath it in life’s game of limbo.
Of course, the wealthy don’t face these problems. A rich man can afford a lawyer; he can hire an army of investigators and experts equipped with laboratories. It is the vast majority of folks stuck somewhere between indigency and wealth who suffer.
Requiring the state to provide a free defense to each person accused would not limit the choices of those with means. They could still go outside the system to purchase their dream team, just as in Britain a wealthy family can thumb its nose at the national health plan.
Requiring the state to provide a free defense will also serve another purpose: It will increase the cost of prosecuting crime, effectively forcing policy makers to make cost-benefit decisions about what should be prosecuted. As things now stand, the criminal code grows year by year. It rarely decreases in scope. Prosecutors are effectively given blank checks and then told to do justice.
If Connecticut were required to pay the expenses of both sides in a criminal prosecution, lawmakers might actually look for ways to limit the number of crimes. Imagine that! A state dedicated not just in words, but in deeds, to liberty.
Our hybrid system of criminal defense penalizes the lower middle class, those folks just above the level of indigency. These souls must scramble to make bond and hire a lawyer. By the time that is done, many families have nothing left to pay for an investigator or an expert. Their funds are depleted; the state’s coffers, however, rarely run dry. Even in a recession, the state keeps plugging along grinding souls to a pulp.
Connecticut was the first state to create a public defender system for the indigent. It’s time for the state once again to lead the way by requiring that all persons accused of a crime be provided a defense. Anything less shows tolerance for a truth uttered only furtively and with shame in most courthouses: " The process is the punishment."
Reprinted courtesy of the Connecticut Law Tribune.
Each and every American accused of a crime should have the right to a court-appointed lawyer and the funds necessary to investigate and present a defense. It’s only fair, after all: A decision to prosecute is always supported by public funds. A state’s attorney brings a case, and his or her office has investigators, state-supported experts and police officers on tap to advance the state’s position. Taxpayers pay for it all.
When a citizen is charged with a crime, however, they must decide whether to retain a lawyer. Indigent folks get a public defender after payment of a nominal application fee. The vast majority of Americans are ineligible for public assistance for their defense. These folks must hustle up fees for an attorney, investigators and experts to meet the state’s case in the open warfare we call trial.
Why is it that a financial penalty is imposed on folks presumed innocent? The state prosecutes for free; a family faces financial ruin mustering a defense because they earn too much to qualify for a public defender. Even if the defendant wins, the state is still off the hook. That is taking the American rule altogether too far. When the state loses a criminal case, it ought to pay the winner’s costs.
On the civil side, the American rule is justified as a means of keeping the courthouse open to all. We don’t want barriers placed in the path of ordinary Americans seeking justice. But the same should not be the case in the criminal courts. We hem the state in with elaborate checks and balances in order to keep its power in check. When it comes to the decision to prosecute, however, the state is limited only by the mere need to show probable cause, a standard so low that few mere mortals can shuffle beneath it in life’s game of limbo.
Of course, the wealthy don’t face these problems. A rich man can afford a lawyer; he can hire an army of investigators and experts equipped with laboratories. It is the vast majority of folks stuck somewhere between indigency and wealth who suffer.
Requiring the state to provide a free defense to each person accused would not limit the choices of those with means. They could still go outside the system to purchase their dream team, just as in Britain a wealthy family can thumb its nose at the national health plan.
Requiring the state to provide a free defense will also serve another purpose: It will increase the cost of prosecuting crime, effectively forcing policy makers to make cost-benefit decisions about what should be prosecuted. As things now stand, the criminal code grows year by year. It rarely decreases in scope. Prosecutors are effectively given blank checks and then told to do justice.
If Connecticut were required to pay the expenses of both sides in a criminal prosecution, lawmakers might actually look for ways to limit the number of crimes. Imagine that! A state dedicated not just in words, but in deeds, to liberty.
Our hybrid system of criminal defense penalizes the lower middle class, those folks just above the level of indigency. These souls must scramble to make bond and hire a lawyer. By the time that is done, many families have nothing left to pay for an investigator or an expert. Their funds are depleted; the state’s coffers, however, rarely run dry. Even in a recession, the state keeps plugging along grinding souls to a pulp.
Connecticut was the first state to create a public defender system for the indigent. It’s time for the state once again to lead the way by requiring that all persons accused of a crime be provided a defense. Anything less shows tolerance for a truth uttered only furtively and with shame in most courthouses: " The process is the punishment."
Reprinted courtesy of the Connecticut Law Tribune.
Sunday, August 23, 2009
A Weekend In Wyoming
I am sad enough to weep tonight, and I may do so. As night falls in Jackson Hole, Wyoming, I am holed up in a hotel awaiting an early flight back to Connecticut tomorrow. For the past two days, I've been back at the ranch, visiting with friends at the Trial Lawyers College. I went there to honor a good man on the occasion of his 8oth birthday and the fifteenth anniversary of the college he founded.
The festivities continue tonight, but I did not plan a long stay. Gerry Spence and I have a history, and we've both written it in lines that I sometimes do not care to read: It seemed better to come and to go quickly. Besides, the ranch attracts an unusually passionate and exhausting crowd. I'd not set foot on the grounds since 2000, so this past weekend I milled around with scores of others who have come there and staked their own claim to magic. I was an old-timer, and found comfort with others whose roots go back to the 1990s: Mike Strain, David Goldenberg, Paul Dumas. They took me in as I am, warts and all.
To prepare for the weekend I re-read Lord of the Flies. Strip away the veneer of civilization and what beasts emerge? I know my ghosts loom ever-present and haunting; it was the ghosts stirring in others that I dreaded. When I was last involved in the ranch I watched some students hustle the crowd and the faculty to earn invitations back as staff; I got hustled, and resented it. A few students got their wish, and, to use the words of another family, became made men. The grapevine reports that some of them want my scalp for turning on the tribe. It wearied me to consider tense confrontations.
Odd things occurred this weekend. One woman thanked me for work I did with her two years running at a seminar at Mount Palomar in the late 1990s. I was flattered, of course, but, frankly, I do not recall much of the trips to Southern California as part of the college faculty; I don't recall the young woman's case at all. I tried to be gracious and sought the shelter of anonymity as quickly as my feet could carry me.
Another soul was kind enough to tell me how much she enjoys my blog. "You don't look at all like what I expected you to look like," she said. I mumbled something about not knowing whether that was a compliment or an insult, and beat a hasty retreat to some silent place.
On Saturday, Gerry passed the baton to a new lord of the flies, Jude Basile. This was not unexpected but had the subtle feel of a palace coup or smoke pouring from the chimney at St. Peter's. Basile is now the new president of the college. Spence has, in a sense, stepped down. The board decided this, Spence said. So now the college has a new president for life. It is not that simple.
This is a tricky move and it is an open question whether the college can survive. It is a charismatic institution; the main draw is Spence. Like him or not, he has published a dozen or so books and is a towering populist. He rants, he roars, he cajoles in a way that mesmerizes. He has become an icon to many by shunning convention.
Basile, by contrast, is a former college athlete, recruited to play quarterback at Notre Dame. When it was apparent that he would not play in South Bend, Basile transferred to a small college, where he was a star. He now practices law in California in a small one-man firm, handling a case or two at a time with stellar results. But Basile lacks Spence's master passion; when he speaks spines don't tingle, rather one waits in vain for the pregnant pauses piling one upon another to yield something other than the conviction that Basile is simply a good and decent man. Basile is an effective lawyer and a good behind the scene's man. But a visionary?
Begone charisma, and welcome something akin to the bureaucratic ethos. Rumor has it that there will be a renewed emphasis on staff training. Psychodrama will remain integral. Perhaps trial skills will be given greater emphasis. But from where I sat this weekend, it all took on a dreadful, homogenized tone. Gone are the heady days when eccentric souls could gather in the cool summer nights around a campfire to find inspiration in the wee hours of the night. "Talent," Goethe once said, "does what it can; genius does what it must." One senses the ranch is no longer safe for genius; is mere talent enough?
The college now plans, raises funds, organizes. Basile's hand may be too steady to nurture the creative genius. We don't need another National Institute of Trial Advocacy.
And as for Spence? I made no effort to find myself alone with him; nor did he with me. This was a time to celebrate and luxuriate. Spence and a dozen of us spent a few hours outside the cookhouse this morning sharing jokes and funny stories. I swear Paul Dumas of Mexico, Maine, ought to record his stories. He's as good a storyteller as Spence.
While we were sitting together, Spence pointed at Dumas, Goldenberg, Strain and me. He thanked us for being thorns in his side. Thanks to us, he said, he has learned to grow calluses, even in old age. He pointed a spindly finger at me and told the others I was still a source of challenge to him.
"Things are complicated between us, " I said.
"No, they are not," he replied. And he told me he read the last blog entry I had written about the magic mirror, intimating that if I could not draw close to him as I had in times past it was because of issues I brought to the surface.
I did not disagree with him at the time. But on the drive to Jackson this afternoon, I realized he was wrong. In this instance, I am holding the mirror, not Spence. He confided in me once that my departure from the ranch and public betrayal of him was one the most painful things he had experienced as an adult, rating with a sorrow too deep to be revealed here.
I was stunned by that. Clearly, the man became important to me, a sort of substitute father figure. But why, I asked him, had I become so important to him? What about my actions could conceivably be so important to him? I asked him about it one day, and the only response I got was: "That's a good question." The question remains unanswered, and, I suspect, unexamined.
I suspect I will never get an answer. So I have a choice. I can hold the mirror up to this niggling response to a serious question, and return evasion for evasion. Or I can do something larger and let the mirror fall to the ground, hoping it shatters.
Today, I watched a man I love walk alone across a sun-baked field. It may be the last time I see him. We've laughed together and we've each shed tears over things held in common and apart. I keep seeing him walking under an overcast Wyoming sky, tall grass licking his legs as he lumbered forward. I wanted then to thank him for all he has done for me. But I didn't.
Spence has been a better friend and mentor than I deserved. None of us master the currents life sets before us; we are all undone in the end. But I respect the shape he gave to the storms raging within him. He taught me something about grace, and, more importantly, he taught me to accept the sorrows that time yields. I am filled with sorrow tonight, but I know this sorrow is strength, not weakness. Do not go easy into the night, Gerry, but go knowing that there is a modest shelter of sorts here for you; it is not uncritical, but it is, perhaps, for that very reason real. It is a gift I can give.
The festivities continue tonight, but I did not plan a long stay. Gerry Spence and I have a history, and we've both written it in lines that I sometimes do not care to read: It seemed better to come and to go quickly. Besides, the ranch attracts an unusually passionate and exhausting crowd. I'd not set foot on the grounds since 2000, so this past weekend I milled around with scores of others who have come there and staked their own claim to magic. I was an old-timer, and found comfort with others whose roots go back to the 1990s: Mike Strain, David Goldenberg, Paul Dumas. They took me in as I am, warts and all.
To prepare for the weekend I re-read Lord of the Flies. Strip away the veneer of civilization and what beasts emerge? I know my ghosts loom ever-present and haunting; it was the ghosts stirring in others that I dreaded. When I was last involved in the ranch I watched some students hustle the crowd and the faculty to earn invitations back as staff; I got hustled, and resented it. A few students got their wish, and, to use the words of another family, became made men. The grapevine reports that some of them want my scalp for turning on the tribe. It wearied me to consider tense confrontations.
Odd things occurred this weekend. One woman thanked me for work I did with her two years running at a seminar at Mount Palomar in the late 1990s. I was flattered, of course, but, frankly, I do not recall much of the trips to Southern California as part of the college faculty; I don't recall the young woman's case at all. I tried to be gracious and sought the shelter of anonymity as quickly as my feet could carry me.
Another soul was kind enough to tell me how much she enjoys my blog. "You don't look at all like what I expected you to look like," she said. I mumbled something about not knowing whether that was a compliment or an insult, and beat a hasty retreat to some silent place.
On Saturday, Gerry passed the baton to a new lord of the flies, Jude Basile. This was not unexpected but had the subtle feel of a palace coup or smoke pouring from the chimney at St. Peter's. Basile is now the new president of the college. Spence has, in a sense, stepped down. The board decided this, Spence said. So now the college has a new president for life. It is not that simple.
This is a tricky move and it is an open question whether the college can survive. It is a charismatic institution; the main draw is Spence. Like him or not, he has published a dozen or so books and is a towering populist. He rants, he roars, he cajoles in a way that mesmerizes. He has become an icon to many by shunning convention.
Basile, by contrast, is a former college athlete, recruited to play quarterback at Notre Dame. When it was apparent that he would not play in South Bend, Basile transferred to a small college, where he was a star. He now practices law in California in a small one-man firm, handling a case or two at a time with stellar results. But Basile lacks Spence's master passion; when he speaks spines don't tingle, rather one waits in vain for the pregnant pauses piling one upon another to yield something other than the conviction that Basile is simply a good and decent man. Basile is an effective lawyer and a good behind the scene's man. But a visionary?
Begone charisma, and welcome something akin to the bureaucratic ethos. Rumor has it that there will be a renewed emphasis on staff training. Psychodrama will remain integral. Perhaps trial skills will be given greater emphasis. But from where I sat this weekend, it all took on a dreadful, homogenized tone. Gone are the heady days when eccentric souls could gather in the cool summer nights around a campfire to find inspiration in the wee hours of the night. "Talent," Goethe once said, "does what it can; genius does what it must." One senses the ranch is no longer safe for genius; is mere talent enough?
The college now plans, raises funds, organizes. Basile's hand may be too steady to nurture the creative genius. We don't need another National Institute of Trial Advocacy.
And as for Spence? I made no effort to find myself alone with him; nor did he with me. This was a time to celebrate and luxuriate. Spence and a dozen of us spent a few hours outside the cookhouse this morning sharing jokes and funny stories. I swear Paul Dumas of Mexico, Maine, ought to record his stories. He's as good a storyteller as Spence.
While we were sitting together, Spence pointed at Dumas, Goldenberg, Strain and me. He thanked us for being thorns in his side. Thanks to us, he said, he has learned to grow calluses, even in old age. He pointed a spindly finger at me and told the others I was still a source of challenge to him.
"Things are complicated between us, " I said.
"No, they are not," he replied. And he told me he read the last blog entry I had written about the magic mirror, intimating that if I could not draw close to him as I had in times past it was because of issues I brought to the surface.
I did not disagree with him at the time. But on the drive to Jackson this afternoon, I realized he was wrong. In this instance, I am holding the mirror, not Spence. He confided in me once that my departure from the ranch and public betrayal of him was one the most painful things he had experienced as an adult, rating with a sorrow too deep to be revealed here.
I was stunned by that. Clearly, the man became important to me, a sort of substitute father figure. But why, I asked him, had I become so important to him? What about my actions could conceivably be so important to him? I asked him about it one day, and the only response I got was: "That's a good question." The question remains unanswered, and, I suspect, unexamined.
I suspect I will never get an answer. So I have a choice. I can hold the mirror up to this niggling response to a serious question, and return evasion for evasion. Or I can do something larger and let the mirror fall to the ground, hoping it shatters.
Today, I watched a man I love walk alone across a sun-baked field. It may be the last time I see him. We've laughed together and we've each shed tears over things held in common and apart. I keep seeing him walking under an overcast Wyoming sky, tall grass licking his legs as he lumbered forward. I wanted then to thank him for all he has done for me. But I didn't.
Spence has been a better friend and mentor than I deserved. None of us master the currents life sets before us; we are all undone in the end. But I respect the shape he gave to the storms raging within him. He taught me something about grace, and, more importantly, he taught me to accept the sorrows that time yields. I am filled with sorrow tonight, but I know this sorrow is strength, not weakness. Do not go easy into the night, Gerry, but go knowing that there is a modest shelter of sorts here for you; it is not uncritical, but it is, perhaps, for that very reason real. It is a gift I can give.
Wednesday, August 19, 2009
Is Cohen A "Ho"? We'll Find Out
Is Likula Cohen a "ho"? She says not, and is angry enough to sue Google to learn the identity of an anonymous blogger who referred to her as a "ho," "skank" and "psychotic." But, truth be told, Ms. Cohen, 37, is a super-model, a former cover girl for such magazines as Vogue. Odds are she's little more than eye candy with a pulse. Does anyone really care about her reputation?
A New York trial judge yesterday ordered that Google turn over any information it had regarding the blogger's identity. The firm has complied, and has turned over the poster's IP address and e-mail address. Apparently the blog was pulled from the Internet shortly after Ms. Cohen sued. Be careful Ms. Cohen, one defense at the blogger's disposal is truth; now the world will know whether these names are apt.
While I could care a whit for the reputation of a woman who, if not a whore, tip-toes on the border of prurience for big bucks, her case is important. (I confess to prudery. There was a time when the lingerie ads in The New York Times shocked me for their suggestiveness. I've since been battered down by a culture obsessed with sexually suggestive images.)
I've never understood why a blogger does not reveal his or her identity. It strikes me as something akin to a publicity stunt. From time to time, the game approaches interest: A person with an institutional connection requiring discretion might decide to play Internet Deep Throat by posting. But it remains ethically suspect in my view for a person to opine anonymously. If you say it, own it.
Requiring Google to turn over identifying information makes sense as a matter of law and fact. It does not represent an assault on free speech, and it forestalls, rather that hastens, regulation of the Internet.
All Google requires to establish a blog is an e-mail address. A user need not give a real name. In other words, Google runs the risk of liability for agreeing to host a forum on which just about anything goes. It is good business, and good for the First Amendment, too. If Google were permitted to avoid lawful process and flout discovery, then pressure would build to create regulations effectively creating something like a license for Internet users. I would be troubled by a regime in which writers were required to register before they speak.
I am aware of the long and honorable tradition of using pseudonyms. The Federalist Papers, the Anti-Federalist Papers, opinion pieces in the colonial press, all were written by first-rate intellects using pseudonyms. Even John Marhsall, while sitting as chief justice of the United States Supreme Court, wrote pseudonymous pieces for the press. But in each of these cases, the material was published under the imprimatur of a news organization with editors. In other words, someone was accountable for the speech, even if it was not the author himself.
The glory of the Internet is that it is instantaneous. No editor will approve or disapprove of this piece before it appears. (Though that is often much the loss for most of us. I shudder to think of how many non-fluencies, grammatical errors and typographical errors soils these posts. ) The Internet promotes robust speech on all manner of topics by permitting Everyman to publish his or her own thoughts in a forum equal to that of the most powerful institutions.
But the blogosphere is not, and should not be, entirely self-regulating. There is a lot of silliness going on in cyberspace. Bloggers solicit links, the better to build traffic and attract attention. Almost inevitably, rating services have emerged. Otherwise good bloggers somehow see the need to abase themselves by fawning over the pages of others. Scott, at Simple Justice, for example, glow's about some pages that, when examined, have the appeal of bad Chinese food. I'd enjoy Scott's page more if he'd simply opine, and stop looking out the rear-view mirror.
I would rather have litigation regulate the Internet and blogosphere than bureacrats. If Ms. Cohen's feelings are hurt, let her sue. And let the person who opined about her defend. Of course, this means that folks in the blogosphere might feel a chill. We ought to. The Internet doesn't yield a pass from defamation laws.
Cyberbullying, as the practice of anonymously slurring folks is sometimes called, doesn't deserve privileged status. And neither do folks who find false courage in anonymity. If you say it, own it. That's a decent motto. Of course, it really is just another way reminding writers that integrity matters.
A New York trial judge yesterday ordered that Google turn over any information it had regarding the blogger's identity. The firm has complied, and has turned over the poster's IP address and e-mail address. Apparently the blog was pulled from the Internet shortly after Ms. Cohen sued. Be careful Ms. Cohen, one defense at the blogger's disposal is truth; now the world will know whether these names are apt.
While I could care a whit for the reputation of a woman who, if not a whore, tip-toes on the border of prurience for big bucks, her case is important. (I confess to prudery. There was a time when the lingerie ads in The New York Times shocked me for their suggestiveness. I've since been battered down by a culture obsessed with sexually suggestive images.)
I've never understood why a blogger does not reveal his or her identity. It strikes me as something akin to a publicity stunt. From time to time, the game approaches interest: A person with an institutional connection requiring discretion might decide to play Internet Deep Throat by posting. But it remains ethically suspect in my view for a person to opine anonymously. If you say it, own it.
Requiring Google to turn over identifying information makes sense as a matter of law and fact. It does not represent an assault on free speech, and it forestalls, rather that hastens, regulation of the Internet.
All Google requires to establish a blog is an e-mail address. A user need not give a real name. In other words, Google runs the risk of liability for agreeing to host a forum on which just about anything goes. It is good business, and good for the First Amendment, too. If Google were permitted to avoid lawful process and flout discovery, then pressure would build to create regulations effectively creating something like a license for Internet users. I would be troubled by a regime in which writers were required to register before they speak.
I am aware of the long and honorable tradition of using pseudonyms. The Federalist Papers, the Anti-Federalist Papers, opinion pieces in the colonial press, all were written by first-rate intellects using pseudonyms. Even John Marhsall, while sitting as chief justice of the United States Supreme Court, wrote pseudonymous pieces for the press. But in each of these cases, the material was published under the imprimatur of a news organization with editors. In other words, someone was accountable for the speech, even if it was not the author himself.
The glory of the Internet is that it is instantaneous. No editor will approve or disapprove of this piece before it appears. (Though that is often much the loss for most of us. I shudder to think of how many non-fluencies, grammatical errors and typographical errors soils these posts. ) The Internet promotes robust speech on all manner of topics by permitting Everyman to publish his or her own thoughts in a forum equal to that of the most powerful institutions.
But the blogosphere is not, and should not be, entirely self-regulating. There is a lot of silliness going on in cyberspace. Bloggers solicit links, the better to build traffic and attract attention. Almost inevitably, rating services have emerged. Otherwise good bloggers somehow see the need to abase themselves by fawning over the pages of others. Scott, at Simple Justice, for example, glow's about some pages that, when examined, have the appeal of bad Chinese food. I'd enjoy Scott's page more if he'd simply opine, and stop looking out the rear-view mirror.
I would rather have litigation regulate the Internet and blogosphere than bureacrats. If Ms. Cohen's feelings are hurt, let her sue. And let the person who opined about her defend. Of course, this means that folks in the blogosphere might feel a chill. We ought to. The Internet doesn't yield a pass from defamation laws.
Cyberbullying, as the practice of anonymously slurring folks is sometimes called, doesn't deserve privileged status. And neither do folks who find false courage in anonymity. If you say it, own it. That's a decent motto. Of course, it really is just another way reminding writers that integrity matters.
Tuesday, August 18, 2009
Statutory Rape? Or Mere Rite Of Passage?
I keep thinking about the little bits of heaven I tasted in the summer of 1971. I was fifteen, working as one of four males at a girl’s summer camp in northern Michigan. I built a horse corral out of cedar logs we felled and stripped in a nearby swamp. I spent several weeks as a chaperone of sorts on canoe trips down the Au Sable River. And, one memorable night, I lost my virginity to M., a counselor aged 18 at the time.
How did the sparks first began to fly between us? We’d meet sometimes after the rest of the camp was asleep. M. would desert her tent full of charges and find me near a campfire at a distant part of the camp. I often slept there, trying to count the stars and breathing free and deep. I had spent the whole of my life before that summer in tenements and cramped quarters in Chicago and Detroit. A world without doors and locks was a wonder; M., however, was a miracle, my miracle.
The camp was devoted to providing young girls and women with a wholesome and Christian experience. A church youth-group director who knew that my home was filled with trouble arranged my employment. I wasn’t practicing what was preached.
I think of M. now not with longing, but with sorrow. Had what we shared that summer become known to law enforcement, she could well be prosecuted for statutory rape. She was more than two years my senior; I was under the age of 16. As a matter of law, at least under Connecticut law, I could not give consent to what we shared. Were M. sentenced for this "crime" today, she’d face a mandatory minimum of nine months in prison. This is madness.
Was I a crime victim? My will was not overborne, although my hormones certainly were. I will never forget a certain night, the night M. went back to her tent in tears, and I went skulking deep into the forest, awaiting a thunderbolt to extinguish me. Surely I had sinned and fallen far short of the glory of God. I shuddered in the twilight, hovering somewhere between despair and exultation. As guilt yielded to pure fatigue, I drifted off to sleep with the abiding conviction that whatever I had done that night, I was not truly sorrowful: I had crossed a threshold and entered a place to which I would return.
The summer ended. M. went off to college to study microbiology. I returned to high school. I still recall long afternoons when M. and I would walk along sand dunes, sometimes sitting together for hours dreaming of a future we would never share. And I laugh now, too, at how naive we were. We spent time off together deep in the woods. When we returned to camp once, someone noticed with something like shock that M. was wearing my jeans and I had on hers. How could that have happened? A lawyer might call it circumstantial evidence.
I never saw M. after that summer. I don’t know what became of her, although I do know she was affianced and planned to marry. She told me she did not want to marry. What was she trying to bury with me? What was I trying to find with her?
I tell this tale not to engage in unseemly exhibitionism. I am neither proud nor ashamed of the summer of 1971. I tell the story because whatever happened that summer between M. and me was not criminal. I was not a crime victim; M. was not a rapist. We were two kids, experimenting with fire and behaving irresponsibly, risking all in the sort of routine passion play that has for millennia been a rite of passage.
My tale is little different from the stories I hear from clients. An eighteen year old makes love to a fifteen year old. Lawmakers demand that a prison cell be filled. It is wrong, wasteful and hypocritical. Judges smirk sometimes during pre-trials in these cases. "My hands are tied," they say, relying on a mandatory minimum sentence set by lawmakers. And so folks are sentenced to prison as felons, become registered sex offenders and endure the indignity of sex offender treatment. How many other lawyers, judges and lawmakers can tell stories similar to mine? How many sins have gone unconfessed and so-called crimes gone undetected?
I thought I loved M., although, truth be told, I was a but a boy. She thought she loved me, but she, too, was really still a child. We experimented, and there was pain. But I will go to my grave knowing there was no crime. I wonder what Puritanical impulse requires us to count such behavior criminal now.
Reprinted courtesy of the Connecticut Law Tribune.
How did the sparks first began to fly between us? We’d meet sometimes after the rest of the camp was asleep. M. would desert her tent full of charges and find me near a campfire at a distant part of the camp. I often slept there, trying to count the stars and breathing free and deep. I had spent the whole of my life before that summer in tenements and cramped quarters in Chicago and Detroit. A world without doors and locks was a wonder; M., however, was a miracle, my miracle.
The camp was devoted to providing young girls and women with a wholesome and Christian experience. A church youth-group director who knew that my home was filled with trouble arranged my employment. I wasn’t practicing what was preached.
I think of M. now not with longing, but with sorrow. Had what we shared that summer become known to law enforcement, she could well be prosecuted for statutory rape. She was more than two years my senior; I was under the age of 16. As a matter of law, at least under Connecticut law, I could not give consent to what we shared. Were M. sentenced for this "crime" today, she’d face a mandatory minimum of nine months in prison. This is madness.
Was I a crime victim? My will was not overborne, although my hormones certainly were. I will never forget a certain night, the night M. went back to her tent in tears, and I went skulking deep into the forest, awaiting a thunderbolt to extinguish me. Surely I had sinned and fallen far short of the glory of God. I shuddered in the twilight, hovering somewhere between despair and exultation. As guilt yielded to pure fatigue, I drifted off to sleep with the abiding conviction that whatever I had done that night, I was not truly sorrowful: I had crossed a threshold and entered a place to which I would return.
The summer ended. M. went off to college to study microbiology. I returned to high school. I still recall long afternoons when M. and I would walk along sand dunes, sometimes sitting together for hours dreaming of a future we would never share. And I laugh now, too, at how naive we were. We spent time off together deep in the woods. When we returned to camp once, someone noticed with something like shock that M. was wearing my jeans and I had on hers. How could that have happened? A lawyer might call it circumstantial evidence.
I never saw M. after that summer. I don’t know what became of her, although I do know she was affianced and planned to marry. She told me she did not want to marry. What was she trying to bury with me? What was I trying to find with her?
I tell this tale not to engage in unseemly exhibitionism. I am neither proud nor ashamed of the summer of 1971. I tell the story because whatever happened that summer between M. and me was not criminal. I was not a crime victim; M. was not a rapist. We were two kids, experimenting with fire and behaving irresponsibly, risking all in the sort of routine passion play that has for millennia been a rite of passage.
My tale is little different from the stories I hear from clients. An eighteen year old makes love to a fifteen year old. Lawmakers demand that a prison cell be filled. It is wrong, wasteful and hypocritical. Judges smirk sometimes during pre-trials in these cases. "My hands are tied," they say, relying on a mandatory minimum sentence set by lawmakers. And so folks are sentenced to prison as felons, become registered sex offenders and endure the indignity of sex offender treatment. How many other lawyers, judges and lawmakers can tell stories similar to mine? How many sins have gone unconfessed and so-called crimes gone undetected?
I thought I loved M., although, truth be told, I was a but a boy. She thought she loved me, but she, too, was really still a child. We experimented, and there was pain. But I will go to my grave knowing there was no crime. I wonder what Puritanical impulse requires us to count such behavior criminal now.
Reprinted courtesy of the Connecticut Law Tribune.
Woe Is Me
I have struggled in the past year or so to reassess my apostasy from the Trial Lawyers' College in DuBois, Wyoming. I spent several years as a student and then tag-along faculty at the college. It was, for the most part, a good and powerful experience.
But it is fundamentally a charismatic institution, and the focal point of all that charisma is Gerry Spence. He's a great lawyer and a good human being. But it was too easy for me to lose my bearings in his shadows. The ranch, as the college is known to acolytes, is a powerful place. The curriculum revolves around the practice of psychodrama. Lawyers come to the various programs sponsored by the college each year to get psychic tune ups. In some cases, it is far easier to break a person down than it is to put them back together again.
The cult-like quality of the ranch frankly put me off. For a time, I enjoyed a certain cache there. I was perceived to be close to the master, and folks wanted things from me, too. But I have my own issues about authority figures. I cut the chord anchoring me to the place with a meat cleaver, leaving plenty of people, including Spence, hurt, and, in some cases angry. I didn't plan to look back.
But I could not resist taking a look at Spence in trial when he was representing Michigan's Geoffrey Fieger in Detroit a year or so ago. I flew out, watched for a couple of days, chatted with Spence, and came away chastened. Spence is good. I opened my mind to the possibility of a second fling. Since attending the Fieger trial I've been in touch with Spence. He is gracious, in a guarded sort of way, yet even as we play at intimacy, I sense wariness. He often speaks of what he calls the magic mirror, reflecting back the energy you receive from others. His communication with me is guarded; I cannot penetrate the mirror he has carefully erected and am saddened when I perceive what feels like little more than artful dodging.
But the man owes me nothing. He is 80, and this weekend will be celebrated by friends and admirers from the around the country who will flock to the ranch for a celebration noting both his birthday and the 15th anniversary of the college's founding. I was on the fence about attending, and was set to go as recently as last week.
This morning I opened my email and read something that pushed me further from going. There will be an auction of Spence memorabilia at the celebration, all proceeds, of course, to go to the trial lawyer's college. Here's part of the pitch for the event:
** AUCTION **
You Can Own a Piece from the
Gerry Spence
Memorabilia Collection
To all TLC Grads:
Imaging Spence has assembled a fascinating and unique collection of memorabilia from Gerry’s life to be auctioned at the 15th Anniversary Celebration at Thunderhead Ranch on August 22, 2009. You do not have to be at the ranch to participate. All Trial Lawyers College graduates have the opportunity to bid. This is a great opportunity to help the College, have some fun and you may end up with a unique piece of Gerry Spence memorabilia in the process. Some of the items are shown below but they will all be viewable at the following link by Wednesday. http://www5.snapfish.com/thumbnailshare/AlbumID=313920026/a=226461026_226461026/otsc=SHR/otsi=SALBlink/COBRAND_NAME=snapfish/
Auction Items:
Three leather-fringed jackets worn by Gerry.
Framed signature ultra suede jacket made with love by Imaging, well-worn by Gerry complete with a hole in the pocket.
Three cowboy hats worn by Gerry.
Three ultra suede shirts by Spence Collections.
Black suede fringed shirt, silk lined with silver buttons.
Five shirts from Spence Collections, all colors, denim from 1978 – 1988. These were Gerry’s favorites for many years.
Swim trunks from 1970 found in an old armoire at the Ranch.
Cut-offs from 1970 and worn by Gerry.
Roll top desk from GLS ranch office (the cabin Gerry and Imaging live in now). It is from 1900 to 1920 and was purchased by the ranch in 1975.
I just don't know what to make of this. Would I like one of those jackets? You bethca! In 1997, I did an impersonation of Spence at the ranch at the farewell event. I would have liked to have a jacket then. And I love roll-top desks. One of my avocations is as a used and rare book dealers; I understand memorabilia.
But there is something off-putting about this event that I can't put my finger on. It feels like grave-robbing and the man is not yet dead. And the thought of disciples elbowing their way to the cave's opening in hopes of grabbing a memento saddens me.
Woe is me, much though I try to find my way back to simple admiration of the man, things keep getting in the way. I am, perhaps, much the poorer for it.
But it is fundamentally a charismatic institution, and the focal point of all that charisma is Gerry Spence. He's a great lawyer and a good human being. But it was too easy for me to lose my bearings in his shadows. The ranch, as the college is known to acolytes, is a powerful place. The curriculum revolves around the practice of psychodrama. Lawyers come to the various programs sponsored by the college each year to get psychic tune ups. In some cases, it is far easier to break a person down than it is to put them back together again.
The cult-like quality of the ranch frankly put me off. For a time, I enjoyed a certain cache there. I was perceived to be close to the master, and folks wanted things from me, too. But I have my own issues about authority figures. I cut the chord anchoring me to the place with a meat cleaver, leaving plenty of people, including Spence, hurt, and, in some cases angry. I didn't plan to look back.
But I could not resist taking a look at Spence in trial when he was representing Michigan's Geoffrey Fieger in Detroit a year or so ago. I flew out, watched for a couple of days, chatted with Spence, and came away chastened. Spence is good. I opened my mind to the possibility of a second fling. Since attending the Fieger trial I've been in touch with Spence. He is gracious, in a guarded sort of way, yet even as we play at intimacy, I sense wariness. He often speaks of what he calls the magic mirror, reflecting back the energy you receive from others. His communication with me is guarded; I cannot penetrate the mirror he has carefully erected and am saddened when I perceive what feels like little more than artful dodging.
But the man owes me nothing. He is 80, and this weekend will be celebrated by friends and admirers from the around the country who will flock to the ranch for a celebration noting both his birthday and the 15th anniversary of the college's founding. I was on the fence about attending, and was set to go as recently as last week.
This morning I opened my email and read something that pushed me further from going. There will be an auction of Spence memorabilia at the celebration, all proceeds, of course, to go to the trial lawyer's college. Here's part of the pitch for the event:
** AUCTION **
You Can Own a Piece from the
Gerry Spence
Memorabilia Collection
To all TLC Grads:
Imaging Spence has assembled a fascinating and unique collection of memorabilia from Gerry’s life to be auctioned at the 15th Anniversary Celebration at Thunderhead Ranch on August 22, 2009. You do not have to be at the ranch to participate. All Trial Lawyers College graduates have the opportunity to bid. This is a great opportunity to help the College, have some fun and you may end up with a unique piece of Gerry Spence memorabilia in the process. Some of the items are shown below but they will all be viewable at the following link by Wednesday. http://www5.snapfish.com/thumbnailshare/AlbumID=313920026/a=226461026_226461026/otsc=SHR/otsi=SALBlink/COBRAND_NAME=snapfish/
Auction Items:
Three leather-fringed jackets worn by Gerry.
Framed signature ultra suede jacket made with love by Imaging, well-worn by Gerry complete with a hole in the pocket.
Three cowboy hats worn by Gerry.
Three ultra suede shirts by Spence Collections.
Black suede fringed shirt, silk lined with silver buttons.
Five shirts from Spence Collections, all colors, denim from 1978 – 1988. These were Gerry’s favorites for many years.
Swim trunks from 1970 found in an old armoire at the Ranch.
Cut-offs from 1970 and worn by Gerry.
Roll top desk from GLS ranch office (the cabin Gerry and Imaging live in now). It is from 1900 to 1920 and was purchased by the ranch in 1975.
I just don't know what to make of this. Would I like one of those jackets? You bethca! In 1997, I did an impersonation of Spence at the ranch at the farewell event. I would have liked to have a jacket then. And I love roll-top desks. One of my avocations is as a used and rare book dealers; I understand memorabilia.
But there is something off-putting about this event that I can't put my finger on. It feels like grave-robbing and the man is not yet dead. And the thought of disciples elbowing their way to the cave's opening in hopes of grabbing a memento saddens me.
Woe is me, much though I try to find my way back to simple admiration of the man, things keep getting in the way. I am, perhaps, much the poorer for it.
Sunday, August 16, 2009
Wants: James Wilson's Law Lectures
If you are not a book nut, or, as is said in the vernacular, a bibliophile, you've probably not heard of a wants list. Simply put, a wants list consists of books one is looking to acquire. I'm adding a wants list feature to this blog. Perhaps someone will stumble across something I am looking for and pass along a tip.
James Wilson's biographer, Charles Paige Smith, notes two compilations of Wilson's notes for his law lectures. (Wilson was one of the founders and one of the first justices on the United States Supreme Court.)
First, a published source: James Dewitt Andrews' edition of Wilson's Works, published in Chicago in 1896. This is a reprint of the 1804 version of the notes published by one of Wilson's children. I am looking for a set of the later edition as a reading copy. I suspect the 1804 is a collectible and, although I will look at such an edition, it is not my primary interest.
Next, Smith reports that the manuscripts of Wilson's lectures comprise son 60 notebooks. These were, in 1956, in the possession of James Alan Montgomery, Jr., in Philadelphia. What has become of those notebooks, and has anyone reduced them into a new edition of Wilson's works?
James Wilson's biographer, Charles Paige Smith, notes two compilations of Wilson's notes for his law lectures. (Wilson was one of the founders and one of the first justices on the United States Supreme Court.)
First, a published source: James Dewitt Andrews' edition of Wilson's Works, published in Chicago in 1896. This is a reprint of the 1804 version of the notes published by one of Wilson's children. I am looking for a set of the later edition as a reading copy. I suspect the 1804 is a collectible and, although I will look at such an edition, it is not my primary interest.
Next, Smith reports that the manuscripts of Wilson's lectures comprise son 60 notebooks. These were, in 1956, in the possession of James Alan Montgomery, Jr., in Philadelphia. What has become of those notebooks, and has anyone reduced them into a new edition of Wilson's works?
James Wilson: The First Justice
James Wilson was the first justice sworn in to serve on the United States Supreme Court. He took the oath of office on October 5, 1789, two weeks before John Jay, the first Chief Justice, was sworn in. Wilson died, disgraced, hiding from creditors in North Carolina, on August 21, 1798. Although he was never impeached, he was absent from the Court for the last year of his life. He was simply afraid to step foot in Philadelphia lest he be imprisoned by debtors, as had happened twice in the closing years of his life.
It was a sad ending to a legal career marked by extraordinary brilliance. Born in Scotland in 1742, Madison came to the United States in 1765, and read law for just under a year with John Dickinson. His law practice quickly thrived; throughout his career he was a bookish sort of lawyer, dedicated, to be sure, to his client's interests, but also alive to the Eighteenth century's promise of a universal science of law. He was the first lecturer on law at the University of Pennsylvania, and his lectures ranged from natural law to the forms of pleading.
Wilson harbored ambition to serve as Chief Justice, and wrote to President George Washington seeking the post. But the president may well have been mindful of Wilson's financial difficulties; Wilson was deeply in debt as a land speculator and budding capitalist. Wilson also acquired many enemies in Pennsylvania's fractious debates about the state constitution. The father of seven children, Wilson's romantic life caused a stir in Boston in 1793 when he began to court Hannah Gray; Wilson was 51-years-old at the time, but Boston wags thought him fifty-five; his true age hardly mattered, though, Ms. Gray was at most 19 years old and younger than several of Wilson's children. The couple married in 1793.
As near as I can tell, there is only one biography of Wilson in print, Charles Paige Smith's, James Wilson: Founding Father 1742-1798 (University of North Carolina Press, Chapel Hill, 1956). Smith's work was apparently commissioned by the Institute of Early American History and Culture at Chapel Hill. It has gone out of print, but I was able to find a copy on line at a used book shop.
Smith's work is strangely uneven. He recounts well and reliably Wilson's role in the Continental Congress and debates over the new Constitution. His treatment of Wilson as a justice is lackluster. That may not be a fault of the biographer, however; the Court's docket did not immediately take shape. The first few years of the institution were unremarkable. Most intriguing about Smith's work is an impressionistic couple of chapters about Wilson's views of the nature of law and government; Wilson did not emerge as a philosopher of the first-rank; his business affairs intruded upon the hours he could steal for speculative enterprises. Even so, Wilson's speculations are brilliant and inspiring. I am now scouting for a copy of Wilson's Works edited by James Dewitt Andrews in 1896; this edition contains Wilson's notes for his early law lecutres. Aspiring scholars could well supply the gap in the literature on Wilson by a sustained look at the sources of his political theory.
An overall assessment of Wilson? In the infant republic the law had not yet fractured into separate spheres dividing practitioners from judges and both from scholars. Wilson apprenticed with Dickinson, one of his generations leading lawyers, and they earned his keep in private practice. His brilliance drew him into the transforming struggles of his time, where his learning made him as influential a founder as James Madison. He died young, at 56, struggling beneath a crippling mountain of debt that seems to have broken his spirit. And he was throughout his life on difficult terms with his mother, who had hoped and prayed that he would assume a clerical career. He was no saint, and refreshingly so.
Wilson was a public intellectual at a time in which there were no riches to be gained from opining. He risked his life to help form a new nation and was a visionary in terms of the importance of an independent judiciary. Yet he was a man that even his biographer had difficulty understanding. "Tracing over the events of Wilson's life." Smith notes, "we are impressed by the lucid quality of his mind. With this went a restless energy and insatiable ambition, an almost frightening vitality that turned with undiminished energy and enthusiasm to new tasks and new ventures. Yet, when all has been sad, the inner man remains, despite our pleadings, an enigma."
Is the enigmatic character of Wilson a weakness? We know enough to know of his brilliance. In our time, justices rarely sparkle as intellects, and when they do so, the glare they reflect is too often so narrow and focused as to distort, rather than illuminate, their objects. I wish knew less about the personal lives of the justices we now seek, and that, as a class, they were better read, and more passionate about ideas. Wilson was a giant in a time of giants; perhaps a young republic fostered such learning. Perhaps we need a little ferment in our time to shatter the depressing mold that seems to make all our justices look so much alike.
It was a sad ending to a legal career marked by extraordinary brilliance. Born in Scotland in 1742, Madison came to the United States in 1765, and read law for just under a year with John Dickinson. His law practice quickly thrived; throughout his career he was a bookish sort of lawyer, dedicated, to be sure, to his client's interests, but also alive to the Eighteenth century's promise of a universal science of law. He was the first lecturer on law at the University of Pennsylvania, and his lectures ranged from natural law to the forms of pleading.
Wilson harbored ambition to serve as Chief Justice, and wrote to President George Washington seeking the post. But the president may well have been mindful of Wilson's financial difficulties; Wilson was deeply in debt as a land speculator and budding capitalist. Wilson also acquired many enemies in Pennsylvania's fractious debates about the state constitution. The father of seven children, Wilson's romantic life caused a stir in Boston in 1793 when he began to court Hannah Gray; Wilson was 51-years-old at the time, but Boston wags thought him fifty-five; his true age hardly mattered, though, Ms. Gray was at most 19 years old and younger than several of Wilson's children. The couple married in 1793.
As near as I can tell, there is only one biography of Wilson in print, Charles Paige Smith's, James Wilson: Founding Father 1742-1798 (University of North Carolina Press, Chapel Hill, 1956). Smith's work was apparently commissioned by the Institute of Early American History and Culture at Chapel Hill. It has gone out of print, but I was able to find a copy on line at a used book shop.
Smith's work is strangely uneven. He recounts well and reliably Wilson's role in the Continental Congress and debates over the new Constitution. His treatment of Wilson as a justice is lackluster. That may not be a fault of the biographer, however; the Court's docket did not immediately take shape. The first few years of the institution were unremarkable. Most intriguing about Smith's work is an impressionistic couple of chapters about Wilson's views of the nature of law and government; Wilson did not emerge as a philosopher of the first-rank; his business affairs intruded upon the hours he could steal for speculative enterprises. Even so, Wilson's speculations are brilliant and inspiring. I am now scouting for a copy of Wilson's Works edited by James Dewitt Andrews in 1896; this edition contains Wilson's notes for his early law lecutres. Aspiring scholars could well supply the gap in the literature on Wilson by a sustained look at the sources of his political theory.
An overall assessment of Wilson? In the infant republic the law had not yet fractured into separate spheres dividing practitioners from judges and both from scholars. Wilson apprenticed with Dickinson, one of his generations leading lawyers, and they earned his keep in private practice. His brilliance drew him into the transforming struggles of his time, where his learning made him as influential a founder as James Madison. He died young, at 56, struggling beneath a crippling mountain of debt that seems to have broken his spirit. And he was throughout his life on difficult terms with his mother, who had hoped and prayed that he would assume a clerical career. He was no saint, and refreshingly so.
Wilson was a public intellectual at a time in which there were no riches to be gained from opining. He risked his life to help form a new nation and was a visionary in terms of the importance of an independent judiciary. Yet he was a man that even his biographer had difficulty understanding. "Tracing over the events of Wilson's life." Smith notes, "we are impressed by the lucid quality of his mind. With this went a restless energy and insatiable ambition, an almost frightening vitality that turned with undiminished energy and enthusiasm to new tasks and new ventures. Yet, when all has been sad, the inner man remains, despite our pleadings, an enigma."
Is the enigmatic character of Wilson a weakness? We know enough to know of his brilliance. In our time, justices rarely sparkle as intellects, and when they do so, the glare they reflect is too often so narrow and focused as to distort, rather than illuminate, their objects. I wish knew less about the personal lives of the justices we now seek, and that, as a class, they were better read, and more passionate about ideas. Wilson was a giant in a time of giants; perhaps a young republic fostered such learning. Perhaps we need a little ferment in our time to shatter the depressing mold that seems to make all our justices look so much alike.
Thursday, August 13, 2009
The Invisible Hand And The Bar Regulator's Glove
Little by little, we are creeping toward the regulation of legal fees. Whether this is a good thing or not depends, I suppose, on whether you are just starting out in the law and scrambling for your next client, or whether you are tap-dancing on the threshold of retirement, hoping to salt away enough to keep you until the Reaper calls.
Apparently, fees for lawyers’ services were set in colonial times. Before John Marshall became chief justice of the United States Supreme Court, he worked as a lawyer, handling matters for his clients. There was a fee card set in Richmond, Virginia. One biographer relates that Marshall would represent as many as 300 clients a year to generate the income he wanted. A lawyer handling as many clients a year today would undoubtedly face discipline; how could you adequately communicate with each?
The other day, my phone rang. It was a high-profile sort of guy who wanted to vent about his lawyer. Counsel had been paid; there was no trial, but a guilty plea. Yet more than one hundred thousand dollars in fees were demanded, and the bills just kept on coming. I listened. Not much I could say.
Another client complained that their lawyer had taken a six-figure fee, placed a lien on a home, threatened to foreclose, and jumped all manner of ugly when the bill didn’t get paid on time. The client did not think he had hired a banker.
Thomas Hobbes once said the value of a man is his price. This reflects a certain jarring cynicism. But I suppose it is true. In the rough and tumble for legal services, we are such things as fee quotes are made of.
Markets don’t discipline themselves in any meaningful way when it comes to professional services. Desperate people do desperate things. And lawyers are in the business of representing, if not outright offering, hope. Is it any wonder that the stars of the bar sometimes are blinded by the stars in their own eyes?
The Rules of Professional Conduct require that lawyers charge only a reasonable fee. The factors to consider in determining just what is reasonable are about as helpful as a detergent advertisement. One factor is an invitation to vanity: "The experience, reputation, and ability of the lawyer ... performing the service." Does this mean that one lawyer’s defense of a speeding ticket is worth $10,000 to another’s $500. Is there an upper limit?
Bar regulators keep an eye on such things when fee disputes arise. Suppose a client is given the option between an hourly fee and a flat fee. The client chooses a flat fee because that minimizes the risk of later sticker shock. Months into the litigation, the client decides he doesn’t love the lawyer anymore. The client fires the lawyer, and goes to seek another miracle worker. What sum, if any, should the lawyer return to the client?
A lawyer who returns nothing, and simply states a deal is a deal is in trouble. We are to give an account of our time upon discharge. But who in their right mind keeps track of their hours in a case in which there is no hourly retainer? Most small firms are not set up minutely to monitor the production of legal flatus. Yet bar regulators want estimates of time spent in a dispute; they want affidavits from other lawyers about reasonable hourly fees. These regulators are a glove on the invisible hand, and these gloves fit perfectly around the necks of small-firm lawyers.
Oliver Wendell Holmes Jr. once wrote about the bad man theory of the law. We all bargain, he thought, in the law’s shadow. Take the perspective of the bad man seeking to get away with all that he can to determine what is and is not permissible at law. The bad lawyer, then, bills for every moment and keeps track of every bill, the better to defend against the claim of the disenchanted client. Billable hours are religion in some firms; regulators are evangelists promoting uniform billing practices. I doubt there is a stake stout enough to pierce the heart of these heretics.
But tell me, regulatory geniuses, will you add yet another factor to the list of things to consider in calculating whether a fee is reasonable? How about a category called the cost of compliance with an ever-expanding, demanding, and, sadly, seemingly endless series of rules. What bureaucrat’s tax can we assess to comply with all this chatter?
Reprinted courtesy of the Connecticut Law Tribune.
Apparently, fees for lawyers’ services were set in colonial times. Before John Marshall became chief justice of the United States Supreme Court, he worked as a lawyer, handling matters for his clients. There was a fee card set in Richmond, Virginia. One biographer relates that Marshall would represent as many as 300 clients a year to generate the income he wanted. A lawyer handling as many clients a year today would undoubtedly face discipline; how could you adequately communicate with each?
The other day, my phone rang. It was a high-profile sort of guy who wanted to vent about his lawyer. Counsel had been paid; there was no trial, but a guilty plea. Yet more than one hundred thousand dollars in fees were demanded, and the bills just kept on coming. I listened. Not much I could say.
Another client complained that their lawyer had taken a six-figure fee, placed a lien on a home, threatened to foreclose, and jumped all manner of ugly when the bill didn’t get paid on time. The client did not think he had hired a banker.
Thomas Hobbes once said the value of a man is his price. This reflects a certain jarring cynicism. But I suppose it is true. In the rough and tumble for legal services, we are such things as fee quotes are made of.
Markets don’t discipline themselves in any meaningful way when it comes to professional services. Desperate people do desperate things. And lawyers are in the business of representing, if not outright offering, hope. Is it any wonder that the stars of the bar sometimes are blinded by the stars in their own eyes?
The Rules of Professional Conduct require that lawyers charge only a reasonable fee. The factors to consider in determining just what is reasonable are about as helpful as a detergent advertisement. One factor is an invitation to vanity: "The experience, reputation, and ability of the lawyer ... performing the service." Does this mean that one lawyer’s defense of a speeding ticket is worth $10,000 to another’s $500. Is there an upper limit?
Bar regulators keep an eye on such things when fee disputes arise. Suppose a client is given the option between an hourly fee and a flat fee. The client chooses a flat fee because that minimizes the risk of later sticker shock. Months into the litigation, the client decides he doesn’t love the lawyer anymore. The client fires the lawyer, and goes to seek another miracle worker. What sum, if any, should the lawyer return to the client?
A lawyer who returns nothing, and simply states a deal is a deal is in trouble. We are to give an account of our time upon discharge. But who in their right mind keeps track of their hours in a case in which there is no hourly retainer? Most small firms are not set up minutely to monitor the production of legal flatus. Yet bar regulators want estimates of time spent in a dispute; they want affidavits from other lawyers about reasonable hourly fees. These regulators are a glove on the invisible hand, and these gloves fit perfectly around the necks of small-firm lawyers.
Oliver Wendell Holmes Jr. once wrote about the bad man theory of the law. We all bargain, he thought, in the law’s shadow. Take the perspective of the bad man seeking to get away with all that he can to determine what is and is not permissible at law. The bad lawyer, then, bills for every moment and keeps track of every bill, the better to defend against the claim of the disenchanted client. Billable hours are religion in some firms; regulators are evangelists promoting uniform billing practices. I doubt there is a stake stout enough to pierce the heart of these heretics.
But tell me, regulatory geniuses, will you add yet another factor to the list of things to consider in calculating whether a fee is reasonable? How about a category called the cost of compliance with an ever-expanding, demanding, and, sadly, seemingly endless series of rules. What bureaucrat’s tax can we assess to comply with all this chatter?
Reprinted courtesy of the Connecticut Law Tribune.
Friday, August 7, 2009
Sotomayor? Great. But Lets Avoid More Vanilla
"With this historic vote, the Senate has affirmed that Judge Sotomayor has the intellect, the temperament, the history, the integrity and the independence of mind to ably serve on our nation's highest court," President Barack Obama said yesterday. And the president is right.
When she is sworn in at a private ceremony at the Supreme Court tomorrow, Sonia Sotomayor will become the nation's first Hispanic Justice. Her ascendancy represents the "breaking [of] yet another barrier and moving us yet another step closer to a more perfect union," the president said. I agree.
The right has castigated this appointment as an example of identity politics, attacked the judge as an activist, protrayed her as a closet racist, and questioned her intellectual ability. These desperate pleas and smears were pointless rubbish and can now be consigned to the ash heap of partisanship. That Judge Sotomayor was so decisively confirmed is certainly a sign of the president's power; oh, that it were also a sign that the silly season in the selection of judges had ended.
This year's confirmation process had the look and feel of bad day-time television, worthy more of Oprah, or, perhaps even Gerry Springer. Opponents wove straw men out of stray comments, rhetorical truisms and isolated dicta. These straw men could not even withstand the heat of prime-time television cameras before bursting into flames.
I was asked by a good friend to sit out commenting on the confirmation process, and so I did. But I am not forbidden to express delight about Sotomayor's appointment. I appeared before her many times in the United States Court of Appeals and found her fair, tough and impartial. She had no ideological axe to grind, knew the record of the case before her and spotted troubling legal issues on which the case turned. The fact that she does not apparently have a pre-set judicial "philosophy" that yields insight into how she will rule before a case reaches her chambers is merely a sign that she has not prejudged things. That's what we want in a judge.
But despite the pleasure I take in the Sotomayor appointment I remain troubled by the cast and color of the current Supreme Court. Sure, there are black, white and brown justices. Sure there are men and women. But the group of nine is still as vanilla as it comes when it comes to real-world experience. Not a one of the justices has spent any real time practicing law in the private sector representing little people. With depressing regularity, the men and women of the Court are graduates of legal status factories who have spent decades in government service and/or milking the teats of the rich and affluent in large firms.
I say we agitate to put a practicing criminal defense lawyer or plaintiff's lawyer on the bench of the United States Supreme Court when the next vacancy occurs. There are two Americas, one affluent, prosperous and capable of navigating life's shoals with the aid of talented legal counsel. And then there is the other America, where most of us dwell. In this America, folks struggle to pay their bills, get arrested when they lose their temper, lose jobs and suffer the thousand and one injuries of class that we pretent do not exist and do our best to hide. This America is unrepresented on the Supreme Court.
I am aware that Clarence Thomas and Sonia Sotomayor came up poor; no question about it and I respect and admire them for rising with the tides of their ambition. But as they ascended in American life and law, they lost the moorings that tied them to the raw need a trial lawyer faces daily. Why not appoint a plaintiff's lawyer or criminal defense lawyer to the bench?
Trying to accomplish such an appointment will be difficult. Lawyers for the dispossessed don't generally have large corporate backing or expensive slush funds. There is no built in infrastructure comparable to the groves of academe, the courts or mega-firmdom to identify and cultivate talent. And as a class, trial lawyers and criminal defense lawyers are generally regarded with suspicion ... until they are needed. In the dark of night, the villain quickly becomes hero.
I am considering forming a 501c(3) to identify and advance the cause of finding and promoting an ordinary lawyer for the high court. There are hundreds of lawyers in the United States who could serve with distinction on the high court. Finding the right one might be difficult, and persuading the president to nominate him or her might be impossible. But I really don't want to watch another meaningless confirmation hearing. We've had enough vanilla on the high court; let's look for a new flavor.
When she is sworn in at a private ceremony at the Supreme Court tomorrow, Sonia Sotomayor will become the nation's first Hispanic Justice. Her ascendancy represents the "breaking [of] yet another barrier and moving us yet another step closer to a more perfect union," the president said. I agree.
The right has castigated this appointment as an example of identity politics, attacked the judge as an activist, protrayed her as a closet racist, and questioned her intellectual ability. These desperate pleas and smears were pointless rubbish and can now be consigned to the ash heap of partisanship. That Judge Sotomayor was so decisively confirmed is certainly a sign of the president's power; oh, that it were also a sign that the silly season in the selection of judges had ended.
This year's confirmation process had the look and feel of bad day-time television, worthy more of Oprah, or, perhaps even Gerry Springer. Opponents wove straw men out of stray comments, rhetorical truisms and isolated dicta. These straw men could not even withstand the heat of prime-time television cameras before bursting into flames.
I was asked by a good friend to sit out commenting on the confirmation process, and so I did. But I am not forbidden to express delight about Sotomayor's appointment. I appeared before her many times in the United States Court of Appeals and found her fair, tough and impartial. She had no ideological axe to grind, knew the record of the case before her and spotted troubling legal issues on which the case turned. The fact that she does not apparently have a pre-set judicial "philosophy" that yields insight into how she will rule before a case reaches her chambers is merely a sign that she has not prejudged things. That's what we want in a judge.
But despite the pleasure I take in the Sotomayor appointment I remain troubled by the cast and color of the current Supreme Court. Sure, there are black, white and brown justices. Sure there are men and women. But the group of nine is still as vanilla as it comes when it comes to real-world experience. Not a one of the justices has spent any real time practicing law in the private sector representing little people. With depressing regularity, the men and women of the Court are graduates of legal status factories who have spent decades in government service and/or milking the teats of the rich and affluent in large firms.
I say we agitate to put a practicing criminal defense lawyer or plaintiff's lawyer on the bench of the United States Supreme Court when the next vacancy occurs. There are two Americas, one affluent, prosperous and capable of navigating life's shoals with the aid of talented legal counsel. And then there is the other America, where most of us dwell. In this America, folks struggle to pay their bills, get arrested when they lose their temper, lose jobs and suffer the thousand and one injuries of class that we pretent do not exist and do our best to hide. This America is unrepresented on the Supreme Court.
I am aware that Clarence Thomas and Sonia Sotomayor came up poor; no question about it and I respect and admire them for rising with the tides of their ambition. But as they ascended in American life and law, they lost the moorings that tied them to the raw need a trial lawyer faces daily. Why not appoint a plaintiff's lawyer or criminal defense lawyer to the bench?
Trying to accomplish such an appointment will be difficult. Lawyers for the dispossessed don't generally have large corporate backing or expensive slush funds. There is no built in infrastructure comparable to the groves of academe, the courts or mega-firmdom to identify and cultivate talent. And as a class, trial lawyers and criminal defense lawyers are generally regarded with suspicion ... until they are needed. In the dark of night, the villain quickly becomes hero.
I am considering forming a 501c(3) to identify and advance the cause of finding and promoting an ordinary lawyer for the high court. There are hundreds of lawyers in the United States who could serve with distinction on the high court. Finding the right one might be difficult, and persuading the president to nominate him or her might be impossible. But I really don't want to watch another meaningless confirmation hearing. We've had enough vanilla on the high court; let's look for a new flavor.
Wednesday, August 5, 2009
Do Affluent Victims Deserve Special Treatment?
I doubt there is a person of goodwill in the state who does not empathize with Dr. William Petit of Cheshire. The man’s family was slaughtered, and he was beaten and left for dead. To look at the family photo of he, his wife and two daughters displayed in news magazines nationwide is to experience something akin to the tearing of a scab from tender flesh. It is no wonder that when Dr. Petit speaks of his loss, people listen.
What causes wonder is that when this wounded man speaks of his rage, his sorrow and his infinite pain, people take what he says quite so seriously. It is as though we’ve become deaf to equity’s distant whisper: No man can be a judge in his own case.
Why is it newsworthy that Dr. Petit wants the men who murdered his wife and daughters dead? Harm my family and I’d want you dead; rage would swell within me and burst the bonds of reason. I can imagine hatred so hot and so vile that I could kill. Dr. Petit’s rage is justifiable and understandable, an emotional truism.
But this rage is not justice. It is the howl of man wounded and pressed beyond endurance. His lonely wail should not be mistaken for a beacon capable of leading us to anything other than shipwreck.
Oh, we dress this raw emotion up and make it sound pretty. Dr. Petit favors the death penalty, we say. But permitting a victim to manipulate, from whatever distance, the levers in a death chamber doesn’t transform private vengeance into public justice.
And now we learn that there is talk of special accommodation for the trials of the two men accused of the murders. Dr. Petit is urging this so as not to be required to endure the horror of two trials. Twice sitting through accounts of this nightmare is more than he can endure.
Again, Dr. Petit’s position is easy to understand. I cannot imagine sitting through even one trial.
Apparently, the Judicial Branch is scurrying to see how we can accommodate Dr. Petit’s desire to try both men at the same time. The problem is, there is no courtroom in the state system big enough to hold two juries seated to simultaneously consider the evidence in two cases tried at once. State officials are reaching out to the federal courts to see if something can be done. Is there a cavern large enough to sit some 30 jurors, two defendants, their counsel, the state and the onlookers who will all want to watch?
Whence comes this new double standard? Why new rules, new procedures, new ways of conducting the grisly business of trying men accused of horrible crimes? In more than 350 years of our state’s history, we’ve not done this. I suspect there is something about Dr. Petit’s professional status that has given this special request for a joint trial legs. He’s one of us, after all. Chaos has crept out of the ghetto and into the home across the street. We are quick to feel the doctor’s pain. Too quick, I say.
Tell me, when the next home invasion occurs and there are three defendants, we will build an even larger courtroom? And what of a crime with four, five or six defendants? What if the victims are poor? Black? Inner city? Uneducated?
The defendants in this case face multiple counts against multiple victims. No court would permit the case against both men to be heard by one jury for fear of jury confusion, the impact of passion, the danger of confusing the issues. So we say we will empanel two juries? What foolishness. Imagine the field day appellate lawyers will have parsing the transcripts of the game of musical juries the trial judge will be forced to play: some evidence will be fit for one jury, and not another; some evidence will be fit for both. There will be enough to argue about forever.
The sad, sad irony is that all this is unnecessary. At least one of the defendants, perhaps both of them, has offered to plead guilty if the state will but agree not to seek death. But Dr. Petit wants them dead, and so do many angry and frightened people. So an unnecessary trial goes forward. And now a new demand. Not two trials, but one, the better to serve the victim.
See what happens when we make the howl of the devastated our standard? It would be a far, far better thing to realize that in this case, Dr. Petit deserves all the love we can muster. He’s been undone by this horror. There is no reason we should be required to join him in his sorrow. Let justice be done the way it has always been done in this state, one trial at a time, in vindication of rights too precious to be entrusted to one brought to reason’s edge by unspeakable horror.
Reprinted courtesy of the Connecticut Law Tribune.
What causes wonder is that when this wounded man speaks of his rage, his sorrow and his infinite pain, people take what he says quite so seriously. It is as though we’ve become deaf to equity’s distant whisper: No man can be a judge in his own case.
Why is it newsworthy that Dr. Petit wants the men who murdered his wife and daughters dead? Harm my family and I’d want you dead; rage would swell within me and burst the bonds of reason. I can imagine hatred so hot and so vile that I could kill. Dr. Petit’s rage is justifiable and understandable, an emotional truism.
But this rage is not justice. It is the howl of man wounded and pressed beyond endurance. His lonely wail should not be mistaken for a beacon capable of leading us to anything other than shipwreck.
Oh, we dress this raw emotion up and make it sound pretty. Dr. Petit favors the death penalty, we say. But permitting a victim to manipulate, from whatever distance, the levers in a death chamber doesn’t transform private vengeance into public justice.
And now we learn that there is talk of special accommodation for the trials of the two men accused of the murders. Dr. Petit is urging this so as not to be required to endure the horror of two trials. Twice sitting through accounts of this nightmare is more than he can endure.
Again, Dr. Petit’s position is easy to understand. I cannot imagine sitting through even one trial.
Apparently, the Judicial Branch is scurrying to see how we can accommodate Dr. Petit’s desire to try both men at the same time. The problem is, there is no courtroom in the state system big enough to hold two juries seated to simultaneously consider the evidence in two cases tried at once. State officials are reaching out to the federal courts to see if something can be done. Is there a cavern large enough to sit some 30 jurors, two defendants, their counsel, the state and the onlookers who will all want to watch?
Whence comes this new double standard? Why new rules, new procedures, new ways of conducting the grisly business of trying men accused of horrible crimes? In more than 350 years of our state’s history, we’ve not done this. I suspect there is something about Dr. Petit’s professional status that has given this special request for a joint trial legs. He’s one of us, after all. Chaos has crept out of the ghetto and into the home across the street. We are quick to feel the doctor’s pain. Too quick, I say.
Tell me, when the next home invasion occurs and there are three defendants, we will build an even larger courtroom? And what of a crime with four, five or six defendants? What if the victims are poor? Black? Inner city? Uneducated?
The defendants in this case face multiple counts against multiple victims. No court would permit the case against both men to be heard by one jury for fear of jury confusion, the impact of passion, the danger of confusing the issues. So we say we will empanel two juries? What foolishness. Imagine the field day appellate lawyers will have parsing the transcripts of the game of musical juries the trial judge will be forced to play: some evidence will be fit for one jury, and not another; some evidence will be fit for both. There will be enough to argue about forever.
The sad, sad irony is that all this is unnecessary. At least one of the defendants, perhaps both of them, has offered to plead guilty if the state will but agree not to seek death. But Dr. Petit wants them dead, and so do many angry and frightened people. So an unnecessary trial goes forward. And now a new demand. Not two trials, but one, the better to serve the victim.
See what happens when we make the howl of the devastated our standard? It would be a far, far better thing to realize that in this case, Dr. Petit deserves all the love we can muster. He’s been undone by this horror. There is no reason we should be required to join him in his sorrow. Let justice be done the way it has always been done in this state, one trial at a time, in vindication of rights too precious to be entrusted to one brought to reason’s edge by unspeakable horror.
Reprinted courtesy of the Connecticut Law Tribune.
Monday, August 3, 2009
What Next In Wisconsin, A Suit Against God?
Is Madeline Neumann dead today because her parents did not take her to a doctor? Or is she dead because God did not answer her parents' prayers to heal her? The answer is both. But why are only the parents facing prison?
The problem of evil is one theologians just can't lick. Justifying the ways of God to man is hard work. In our talk-show world, we ask: Why do bad things happen to good people?
Ms. Neumann was 11-years-old when she died. She grew progressively more ill as her parents and neighbors stood around her, asking God to heal her. She lost the ability to walk, then she could not eat, then she could not talk or speak. When she stopped breathing, someone finally called 911. It was too late. Doctors say the child died of juvenile diabetes, and that is she had only been given insulin, she'd be alive now.
The State of Wisconsin has charged both parents with reckless homicide. Both have been convicted at separate trials. They each face 25 years in prison.
Mr. Neumann told jurors he did not take his daughter to the hospital because God has promised to heal, and taking her to doctors would be putting man before God. The Wisconsin state's attorney prosecuting the case calls Mr. Neumann "overwhelmed by pride." Neither Neumann nor the prosecutor inspire much faith in humanity.
Mr. Neumann, frankly, is a throwback to William Jennings Bryan and the days of the Scopes monkey trial. Sure, the man has a narrow, cramped, literalistic and foolish sort of commitment to each jot and tittle of the Bible. And he's darn tootin' if he'll let anyone stand between himself and the written word of God.
But the prosecutor looks far worse. What public purpose is served by trying to lock up mom and dad for what amounts to misplaced faith? Sure, the couple should have sought medical treatment for their daughter. They did expose her to risk of death. And the poor child died. But for all that, what the couple did hardly looks like a crime, unless gullibility and stupidity are crimes, in which case we are all from time to time guilty.
We burned witches at various points in prison. Now we lock up people whose only crime it is to believe in the efficacy of prayer. I am not sure how to strike a decent middle ground, but I nonetheless feel free to cry foul when the extremes are so vividly put on display. The case(s) of State v. Neumann are cruel, unusual and worthy solely of scorn. Shame on Wisconsin. What next, a writ against God for not answering the Neumann's prayers?
The problem of evil is one theologians just can't lick. Justifying the ways of God to man is hard work. In our talk-show world, we ask: Why do bad things happen to good people?
Ms. Neumann was 11-years-old when she died. She grew progressively more ill as her parents and neighbors stood around her, asking God to heal her. She lost the ability to walk, then she could not eat, then she could not talk or speak. When she stopped breathing, someone finally called 911. It was too late. Doctors say the child died of juvenile diabetes, and that is she had only been given insulin, she'd be alive now.
The State of Wisconsin has charged both parents with reckless homicide. Both have been convicted at separate trials. They each face 25 years in prison.
Mr. Neumann told jurors he did not take his daughter to the hospital because God has promised to heal, and taking her to doctors would be putting man before God. The Wisconsin state's attorney prosecuting the case calls Mr. Neumann "overwhelmed by pride." Neither Neumann nor the prosecutor inspire much faith in humanity.
Mr. Neumann, frankly, is a throwback to William Jennings Bryan and the days of the Scopes monkey trial. Sure, the man has a narrow, cramped, literalistic and foolish sort of commitment to each jot and tittle of the Bible. And he's darn tootin' if he'll let anyone stand between himself and the written word of God.
But the prosecutor looks far worse. What public purpose is served by trying to lock up mom and dad for what amounts to misplaced faith? Sure, the couple should have sought medical treatment for their daughter. They did expose her to risk of death. And the poor child died. But for all that, what the couple did hardly looks like a crime, unless gullibility and stupidity are crimes, in which case we are all from time to time guilty.
We burned witches at various points in prison. Now we lock up people whose only crime it is to believe in the efficacy of prayer. I am not sure how to strike a decent middle ground, but I nonetheless feel free to cry foul when the extremes are so vividly put on display. The case(s) of State v. Neumann are cruel, unusual and worthy solely of scorn. Shame on Wisconsin. What next, a writ against God for not answering the Neumann's prayers?
John Marshall: Would He Make The Grade Today?
The nomination and now near-certain confirmation of Sonia Sotomayor as a justice of the United States Supreme Court stunned me. I am disconnected from the great personages and events of history. I'm a backwater kind of guy, representing folks who rarely make life's larger radar. But I have appeared many times before Sotomayor, and I like her. How did she cross the line from workaday stiff to assume a place in the larger world?
I've been reading through the thumb-nail biographies of the 100-plus people who have thus far served on the Court. These are gathered in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall. Each biography has a brief bibliography. As I read, I keep wondering what it will take to get an ordinary trial lawyer onto the high court this century. Can we force an ordinary schooner through the blockades set by the various legal interest groups and status factories?
Marhsall's 34-year tenure as the third chief justice of the United States Supreme Court is ably and well portrayed in Jean Edward Smith's, John Marhsall: Definer of a Nation (1996). The book is the size of a small telephone directory, but is nonetheless a wonderful and quick read. On balance, Smith's presentation of the legal doctrines the Marshall court crafted is jargon free and accurate. Smith appears not to have legal training; the fly leaf of his work lists his profession as "political scientist." I giggled when I read that, imagining the man conjuring ideal states in a lab somewhere. In fact, Smith is a decent historian.
Marhsall was a practitioner for a time, handling as many as 300 clients per year and struggling to make ends meet in a small practice. He routinely co-mingled client funds with his own, effectively giving himself interest-free loans when times were tight. (Smith notes it was not until 1971 that Virginia's bar was prohibited from co-mingling client funds with their own monies.) To a degree that is comforting, Marhsall struggled throughout his career to make ends meet.
When appointed to the bench in 1801 by John Adams, Marshall had already served the nation in the XYZ Affair, steadfastly refusing to pay Talleyrand any sort of bribe for advancing negotiations with France. As a justice, he forged legal doctrines that assured not just the independence of the judiciary, but also the ability of the judiciary to settle for all branches what the law is, and is not. His decisions also set the metes and bounds of federalism in an era in which the boundaries between state and federal power were unclear and hotly contested. Indeed, reading about Marshall with the benefit of hindsight is sobering. When Marshall wrote to friends about the fragile and even miraculous character of the struggling union between the states, I hear the rebel yell and smell the gunpowder of a Civil War. I suspect Marshall did, too.
Smith reviews Marshall's tenure on the Court term by term, discussing significant constitutional decisions and placing them in their political context. Yet toward the book's end, Smith loses focus. For hundreds of pages, the struggle between Federalists and Republicans is vividly and well portrayed. The parties then fracture: there are high federalists, moderate federalists, and irreconcilable Republicans. Then, seemingly out of the blue, a new struggle dawns, pitting Democrats against Whigs. Smith simply fails to give any account of this partisan realignment: Whigs and Democrats enter stage left without so much as a dramatic chorus to announce the new personae.
What fascinates about Marshall's era was how quickly and easily lawyers moved from the ordinary practice of law to the bench or into public office. There weren't giant law schools insulating legal academics from the street. Nor did large law firms cultivate a power elite removed from the pulse of ordinary life. Force of character and intellect governed prospects and were more rawly on display. A lawyer could stumble, fall and recover and still remain in the game. Smith recounts how during argument in one case, Marshall took a brief recess so that the lawyer, Luther Martin, a notorious drunkard, could recover his wits, and perhaps some sobriety, before continuing.
One charming curiosity: Smith reports the case of a prominent gentleman seeking legal counsel. The man hires a well-coiffed lawyer from Richmond. While waiting in court for his case to be called, the man watches Marshall, a young lawyer of uncertain sartorial standards, argue against the very lawyer the man had hired. The client was so impressed by Marshall, he asked Marshall to take his case. But he explained that he had already given the other lawyer $95 of the $100 he brought with him that day. Marshall agreed to take the case for $5. It is a great story. Unfortunately, the identical yarn is reported of Abraham Lincoln in Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007). Both stories can't be true; perhaps neither one is.
It was a rough and tumble world in Marshall's time. One has the sense that young men and women did not conceive career trajectories for themselves in high school or earlier and then set about connecting every conceivable dot such that they could present, well past mid-life, as people worthy of trust. Have we created a new class of courtiers, men and women who prance and preen not at an imperial court, but in the plush halls of large firms or within the Ivy-draped walls of just the right schools, learning manners, protocol and just how to kiss the right ring and the right time? Oh, for a whiff of genius every now and then.
Marshall's brilliance is evident in Smith's biography, and so is the struggle of the judiciary to establish for itself an identity and role within an emerging nation. Throughout it all, Marshall appears to have remained a good and simple man, notable for his plain appearance, simple tastes and devotion to his wife. Would Marshall make it onto the high court today? One can't say. There weren't a set of "right" schools to attend in his time, no large firms cultivate prospects and the government was too new to have fostered an elite cadre of professional bureaucrats. One needed only talent in those days; today one needs talent plus. Ours is the loss.
I've been reading through the thumb-nail biographies of the 100-plus people who have thus far served on the Court. These are gathered in The Oxford Companion to the Supreme Court of the United States, edited by Kermit Hall. Each biography has a brief bibliography. As I read, I keep wondering what it will take to get an ordinary trial lawyer onto the high court this century. Can we force an ordinary schooner through the blockades set by the various legal interest groups and status factories?
Marhsall's 34-year tenure as the third chief justice of the United States Supreme Court is ably and well portrayed in Jean Edward Smith's, John Marhsall: Definer of a Nation (1996). The book is the size of a small telephone directory, but is nonetheless a wonderful and quick read. On balance, Smith's presentation of the legal doctrines the Marshall court crafted is jargon free and accurate. Smith appears not to have legal training; the fly leaf of his work lists his profession as "political scientist." I giggled when I read that, imagining the man conjuring ideal states in a lab somewhere. In fact, Smith is a decent historian.
Marhsall was a practitioner for a time, handling as many as 300 clients per year and struggling to make ends meet in a small practice. He routinely co-mingled client funds with his own, effectively giving himself interest-free loans when times were tight. (Smith notes it was not until 1971 that Virginia's bar was prohibited from co-mingling client funds with their own monies.) To a degree that is comforting, Marhsall struggled throughout his career to make ends meet.
When appointed to the bench in 1801 by John Adams, Marshall had already served the nation in the XYZ Affair, steadfastly refusing to pay Talleyrand any sort of bribe for advancing negotiations with France. As a justice, he forged legal doctrines that assured not just the independence of the judiciary, but also the ability of the judiciary to settle for all branches what the law is, and is not. His decisions also set the metes and bounds of federalism in an era in which the boundaries between state and federal power were unclear and hotly contested. Indeed, reading about Marshall with the benefit of hindsight is sobering. When Marshall wrote to friends about the fragile and even miraculous character of the struggling union between the states, I hear the rebel yell and smell the gunpowder of a Civil War. I suspect Marshall did, too.
Smith reviews Marshall's tenure on the Court term by term, discussing significant constitutional decisions and placing them in their political context. Yet toward the book's end, Smith loses focus. For hundreds of pages, the struggle between Federalists and Republicans is vividly and well portrayed. The parties then fracture: there are high federalists, moderate federalists, and irreconcilable Republicans. Then, seemingly out of the blue, a new struggle dawns, pitting Democrats against Whigs. Smith simply fails to give any account of this partisan realignment: Whigs and Democrats enter stage left without so much as a dramatic chorus to announce the new personae.
What fascinates about Marshall's era was how quickly and easily lawyers moved from the ordinary practice of law to the bench or into public office. There weren't giant law schools insulating legal academics from the street. Nor did large law firms cultivate a power elite removed from the pulse of ordinary life. Force of character and intellect governed prospects and were more rawly on display. A lawyer could stumble, fall and recover and still remain in the game. Smith recounts how during argument in one case, Marshall took a brief recess so that the lawyer, Luther Martin, a notorious drunkard, could recover his wits, and perhaps some sobriety, before continuing.
One charming curiosity: Smith reports the case of a prominent gentleman seeking legal counsel. The man hires a well-coiffed lawyer from Richmond. While waiting in court for his case to be called, the man watches Marshall, a young lawyer of uncertain sartorial standards, argue against the very lawyer the man had hired. The client was so impressed by Marshall, he asked Marshall to take his case. But he explained that he had already given the other lawyer $95 of the $100 he brought with him that day. Marshall agreed to take the case for $5. It is a great story. Unfortunately, the identical yarn is reported of Abraham Lincoln in Julie Fenster's The Case of Abraham Lincoln: A Story of Adultery, Murder, and the Making of a Great President (Palgrave MacMillan, New York, 2007). Both stories can't be true; perhaps neither one is.
It was a rough and tumble world in Marshall's time. One has the sense that young men and women did not conceive career trajectories for themselves in high school or earlier and then set about connecting every conceivable dot such that they could present, well past mid-life, as people worthy of trust. Have we created a new class of courtiers, men and women who prance and preen not at an imperial court, but in the plush halls of large firms or within the Ivy-draped walls of just the right schools, learning manners, protocol and just how to kiss the right ring and the right time? Oh, for a whiff of genius every now and then.
Marshall's brilliance is evident in Smith's biography, and so is the struggle of the judiciary to establish for itself an identity and role within an emerging nation. Throughout it all, Marshall appears to have remained a good and simple man, notable for his plain appearance, simple tastes and devotion to his wife. Would Marshall make it onto the high court today? One can't say. There weren't a set of "right" schools to attend in his time, no large firms cultivate prospects and the government was too new to have fostered an elite cadre of professional bureaucrats. One needed only talent in those days; today one needs talent plus. Ours is the loss.
Sunday, August 2, 2009
The Doctrine of Nominal Competence?
So just how crazy do you have to be to forfeit the right to represent yourself at trial?
Consider the case of State v. Connor, just published last month. Mr. Connor was suffering, at a minimum, from an achy-breaky heart and had unresolved issues with his ex-wife. So he did the only thing reasonable under the circumstances. He is alleged to have kidnapped her and taken her for something other than a joy ride. When he stopped at a gas station, she escaped the car. He was charged with a series of felonies, including violation of probation.
Mr. Connor was unhappy with his public defender, a man named M. Fred DeCaprio. (DeCaprio is, for my money, one of the state's top defense lawyers; if I am ever charged with a felony, I hope I am broke at the time. I want DeCaprio!) DeCaprio raised questions about whether the client was all there. But the trial court simply appointed a new public defender. When new issues arose with that lawyer, the court ordered a competency hearing. Under Connecticut law, a defendant is incompetent if he unable to understand the proceedings or assist in his own defense.
The evaluators were unable to determine whether Mr. Connor was competent as he refused to cooperate with the examiners. After a series of court appearances at which, among other things, the issue of whether Mr. Connor was a malingerer were addressed, the court declared him incompetent and he was remanded to a psychiatric hospital. While there, he was still uncooperative with examiners, and he was eventually found competent by another judge. This time, the court found that Mr. Connor was a malingerer and that he was capable of standing trial.
When the case was reached for trial before yet another judge, Mr. Connor again complained about his lawyer. He then demanded the right to represent himself. After extensive questioning by the court, he was granted the right to self-representation and almost inevitably convicted.
The state of the law at the time of trial was governed by the case of US v. Godinez, 509 U.S. 389 (1993), which held that the legal standard for waiving the Sixth Amendment right to counsel was identical to that for determining competency. But Godinez merely grazed the real issue, missing the mark by a nuanced mile: In Godinez, the defendant waived his right to counsel and then plead guilty. Would he have been competent to conduct a trial?
In Indiana v. Edwards, 128 S.Ct.2379 (2008), the Supreme Court made clear that mere competence to stand trial requires so minimal a mental state that it does not warrant the assumption that competence entails the ability to actually conduct a trial. Say what you want about trial lawyers, but it takes special skill to try a case: imagine playing chess on several dimensions, while tap-dancing, and all the while attempting to display calm amid chaos. Try tap dancing on a lava pool without getting burned.
"[A] right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense ... the spectacle that could well result from [the representation of the nominally competent] is at least as likely to prove humiliating as ennobling," the Edwards court noted.
While the Edwards decision does not overrule Godinez, it left the states free to confront as they see fit the stark reality that "a defendant, although minimally competent to stand trial, is not necessarily competent to represent himself at trial." The result of this is a new doctrine in Connecticut, which, since the state's Supreme Court chose not to name it, I will: the doctrine of nominal competence.
Brace yourself. Here is the doctrine:
"[U]pon a finding that a mentally ill or mentally incapacitated defendant is competent to stand trial and to waive his right to counsel at that trial, the trial court must make another determination, that is, whether the defendant also is competent to conduct the trial proceedings without counsel." State v. Connor, 292 Conn. 483, 518-519 (2009).
I am not sure whether to applaud or weep.
Why are we trying mentally ill or incapacitated people at all? Prison for the ill is a sick and perverted mockery. In the zero-sum universe of trial, the loser pays with his liberty, and prison is the last place I'd want a mentally ill loved one to go. Our Supreme Court's jurisprudence regarding the mentally ill has the look and feel of Jimmy Hendrix in a leper colony: all his brilliance will not yield music once he's lost the touch of his strings because his fingers are just stubs. (A recent decision of my firm's, State v. Madigosky, had justices straining to hear the sounds of justice, but all was, in the decision at least, Purple Haze.)
But there is some hope, I suppose. The law is becoming more nuanced, recognizing that not all minds are alike; some folks have been bent beyond recognition by sorrow, others never had a chance. Merely understanding that one is at trial and being able to deny a charge is not enough to permit a person to try their own case; frankly, it ought not even be enough to be competence.
The immediate practical significance of this decision will be a boon to forensic psychiatrists. The battle lines will now shift not so much to the bare bones of competency determination, but, to whether a defendant is capable of the nuanced calculations necessary to try a case. Just how do to that is far from obvious: From where I sit, there are plenty of lawyers out there trying cases who have little business appearing in a courtroom.
Consider the case of State v. Connor, just published last month. Mr. Connor was suffering, at a minimum, from an achy-breaky heart and had unresolved issues with his ex-wife. So he did the only thing reasonable under the circumstances. He is alleged to have kidnapped her and taken her for something other than a joy ride. When he stopped at a gas station, she escaped the car. He was charged with a series of felonies, including violation of probation.
Mr. Connor was unhappy with his public defender, a man named M. Fred DeCaprio. (DeCaprio is, for my money, one of the state's top defense lawyers; if I am ever charged with a felony, I hope I am broke at the time. I want DeCaprio!) DeCaprio raised questions about whether the client was all there. But the trial court simply appointed a new public defender. When new issues arose with that lawyer, the court ordered a competency hearing. Under Connecticut law, a defendant is incompetent if he unable to understand the proceedings or assist in his own defense.
The evaluators were unable to determine whether Mr. Connor was competent as he refused to cooperate with the examiners. After a series of court appearances at which, among other things, the issue of whether Mr. Connor was a malingerer were addressed, the court declared him incompetent and he was remanded to a psychiatric hospital. While there, he was still uncooperative with examiners, and he was eventually found competent by another judge. This time, the court found that Mr. Connor was a malingerer and that he was capable of standing trial.
When the case was reached for trial before yet another judge, Mr. Connor again complained about his lawyer. He then demanded the right to represent himself. After extensive questioning by the court, he was granted the right to self-representation and almost inevitably convicted.
The state of the law at the time of trial was governed by the case of US v. Godinez, 509 U.S. 389 (1993), which held that the legal standard for waiving the Sixth Amendment right to counsel was identical to that for determining competency. But Godinez merely grazed the real issue, missing the mark by a nuanced mile: In Godinez, the defendant waived his right to counsel and then plead guilty. Would he have been competent to conduct a trial?
In Indiana v. Edwards, 128 S.Ct.2379 (2008), the Supreme Court made clear that mere competence to stand trial requires so minimal a mental state that it does not warrant the assumption that competence entails the ability to actually conduct a trial. Say what you want about trial lawyers, but it takes special skill to try a case: imagine playing chess on several dimensions, while tap-dancing, and all the while attempting to display calm amid chaos. Try tap dancing on a lava pool without getting burned.
"[A] right of self-representation at trial will not affirm the dignity of a defendant who lacks the mental capacity to conduct his defense ... the spectacle that could well result from [the representation of the nominally competent] is at least as likely to prove humiliating as ennobling," the Edwards court noted.
While the Edwards decision does not overrule Godinez, it left the states free to confront as they see fit the stark reality that "a defendant, although minimally competent to stand trial, is not necessarily competent to represent himself at trial." The result of this is a new doctrine in Connecticut, which, since the state's Supreme Court chose not to name it, I will: the doctrine of nominal competence.
Brace yourself. Here is the doctrine:
"[U]pon a finding that a mentally ill or mentally incapacitated defendant is competent to stand trial and to waive his right to counsel at that trial, the trial court must make another determination, that is, whether the defendant also is competent to conduct the trial proceedings without counsel." State v. Connor, 292 Conn. 483, 518-519 (2009).
I am not sure whether to applaud or weep.
Why are we trying mentally ill or incapacitated people at all? Prison for the ill is a sick and perverted mockery. In the zero-sum universe of trial, the loser pays with his liberty, and prison is the last place I'd want a mentally ill loved one to go. Our Supreme Court's jurisprudence regarding the mentally ill has the look and feel of Jimmy Hendrix in a leper colony: all his brilliance will not yield music once he's lost the touch of his strings because his fingers are just stubs. (A recent decision of my firm's, State v. Madigosky, had justices straining to hear the sounds of justice, but all was, in the decision at least, Purple Haze.)
But there is some hope, I suppose. The law is becoming more nuanced, recognizing that not all minds are alike; some folks have been bent beyond recognition by sorrow, others never had a chance. Merely understanding that one is at trial and being able to deny a charge is not enough to permit a person to try their own case; frankly, it ought not even be enough to be competence.
The immediate practical significance of this decision will be a boon to forensic psychiatrists. The battle lines will now shift not so much to the bare bones of competency determination, but, to whether a defendant is capable of the nuanced calculations necessary to try a case. Just how do to that is far from obvious: From where I sit, there are plenty of lawyers out there trying cases who have little business appearing in a courtroom.
Sacco and Vanzetti: Searching for Inspiration
I am sucking wind just now, searching for inspiration. My wife and I took a lot of time off this summer, and now we are back. After about six weeks off during the past ten weeks, I am looking down the long barrel of a tough trial schedule stretching well into 2010. My clients are scared, and feeling neglected. My staff is dispirited and feeling rudderless. The firm's coffers are empty. It feels like a whole lot more than I can handle. But is this not the life I have chosen?
It is my custom to work Sundays. A quiet office day begins the week. No one else is here; the phone is, for the most part, silent. I can read neglected mail. Study briefs. Do a little writing. In the silence of a long Sunday I can summon courage for the week to come.
But today courage is in short supply. Where to turn?
I picked up a copy of Felix Frankfurter's brief analysis of the Sacco and Vanzetti case, expecting to linger for a chapter or two, and then to press on to other things. Instead, I was gripped by the work's simple elegance. I moved through its 120 pages as if in a trance, bewitched and angered by a tale of the law's abandonment of reason and justice's sacrifice to prejudice.
The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen, was first published by Little, Brown, and Company in 1927. My copy is a reprint done in 2003 by a small house, William S. Hein & Co. I was gripped in part for personal reasons.
On April 15, 1920, two men were shot to death in Braintree, Massachusetts. The men were carrying the cash payroll of a shoe factory called Slater and Morrill. Theives made of with almost $16,000. Sacco and Vanzetti were ultimately arrested, convicted and executed for these crimes. They were almost certainly innocent.
"Those crimes were committed by desperadoes -- men whose profession it was to take life if necessary and who freely used guns to hold bystanders at bay in order to make their `get-away,'" Frankfurter wrote. Those words cut me to the bone.
My father was a professional armed robber. He was born about the time of the Braintree murders, and snuck into the country with his father from Crete during the depression. During the 1940s and 1950s he lived by the barrel of a gun, planning and executing armed robberies throughout the Midwest and Northeast. In 1954, he shot a man in Detroit, and needed to flee the city as law enforcement was hot on his heels. He left town for Chicago, taking with him a much younger girl with whom he was in love. They became my parents the next year. He tried to make a go of the workaday world with us, but left far too soon to suit me in an effort to return to what he called "the life."
Forty or so years passed before I saw him again. I last saw him when he was buried in Williamsburg, Virginia, surrounded by a family most of whom did not even know I existed. A dapperly dressed man from my father's past man spoke at the funeral; I did not have the nerve to ask him about my father. I was almost afraid of what I would learn; I also feared that the vanilla quality of my life would not measure up to the tastes of this elegant stranger.
Was my father a desperado? I suppose he was. He fled the responsibilities of parenthood as if I were a heist gone wrong. My father would have let Sacco and Vanzetti die for his crimes. Yet I am drawn to defending his side of life's line. Perhaps it is genetic; or perhaps its an acquired taste for the darkness at life's margins.
From time to time we prosecute innocent men merely because prejudice permits it. My father was lucky. Guilty of many crimes, he never faced trial; indeed, he was crafty enough never to be charged. (When I showed him around the state in which I now live, he asked about a clock factory in one town. "How'd you know about that place?" I asked. He winced.) And even when the facts suggest factual guilt, the presumption of innocence requires a defense.
I confess to never having read much about the Sacco and Vanzetti trial. I was aware of the controversy surrounding it. Two left-leaning Italian immigrants prosecuted on flimsy evidence and convicted amid prejudice and the hysteria of the Palmer Red Scare. That's the textbook answer, acquired on the fly. But until reading Frankfurter's expose, I was unaware of the venality of the trial judge, Webster Thayer. Frankfurter describes a post-trial decision of Judge Thayer by calling it "a farrago of misquotations, misrepresentations, suppressions and mutilations" -- I've seen a few of those sorts of decisions. And I was unaware of just how badly consciousness of guilt evidence was used at the trial. Or to what extent prosecutorial misconduct contributed to the conviction: appeals to passion and prejudice were common, evidence was hidden from view, and justice scorned.
Frankfurter's book has not restored the fighting frame of mind I'll need to confront the morrow. But I commend this short read to trial lawyers in need of quick inspiration. We do fight for justice. Our clients depend on us in conflicts that transform their lives for better or worse. And, in the end, we stand alone sometimes defiant to the end and insisting that even the most scorned among us are entitled to all that the law, our passion, our intellect and our heart can provide. And when these higher sources of inspiration run dry, there's always the simple truth that every defendant is someone's father, mother, sister, brother. My father may have been a desperado, but for all that I still had too few chances to call him Dad.
It is my custom to work Sundays. A quiet office day begins the week. No one else is here; the phone is, for the most part, silent. I can read neglected mail. Study briefs. Do a little writing. In the silence of a long Sunday I can summon courage for the week to come.
But today courage is in short supply. Where to turn?
I picked up a copy of Felix Frankfurter's brief analysis of the Sacco and Vanzetti case, expecting to linger for a chapter or two, and then to press on to other things. Instead, I was gripped by the work's simple elegance. I moved through its 120 pages as if in a trance, bewitched and angered by a tale of the law's abandonment of reason and justice's sacrifice to prejudice.
The Case of Sacco and Vanzetti: A Critical Analysis for Lawyers and Laymen, was first published by Little, Brown, and Company in 1927. My copy is a reprint done in 2003 by a small house, William S. Hein & Co. I was gripped in part for personal reasons.
On April 15, 1920, two men were shot to death in Braintree, Massachusetts. The men were carrying the cash payroll of a shoe factory called Slater and Morrill. Theives made of with almost $16,000. Sacco and Vanzetti were ultimately arrested, convicted and executed for these crimes. They were almost certainly innocent.
"Those crimes were committed by desperadoes -- men whose profession it was to take life if necessary and who freely used guns to hold bystanders at bay in order to make their `get-away,'" Frankfurter wrote. Those words cut me to the bone.
My father was a professional armed robber. He was born about the time of the Braintree murders, and snuck into the country with his father from Crete during the depression. During the 1940s and 1950s he lived by the barrel of a gun, planning and executing armed robberies throughout the Midwest and Northeast. In 1954, he shot a man in Detroit, and needed to flee the city as law enforcement was hot on his heels. He left town for Chicago, taking with him a much younger girl with whom he was in love. They became my parents the next year. He tried to make a go of the workaday world with us, but left far too soon to suit me in an effort to return to what he called "the life."
Forty or so years passed before I saw him again. I last saw him when he was buried in Williamsburg, Virginia, surrounded by a family most of whom did not even know I existed. A dapperly dressed man from my father's past man spoke at the funeral; I did not have the nerve to ask him about my father. I was almost afraid of what I would learn; I also feared that the vanilla quality of my life would not measure up to the tastes of this elegant stranger.
Was my father a desperado? I suppose he was. He fled the responsibilities of parenthood as if I were a heist gone wrong. My father would have let Sacco and Vanzetti die for his crimes. Yet I am drawn to defending his side of life's line. Perhaps it is genetic; or perhaps its an acquired taste for the darkness at life's margins.
From time to time we prosecute innocent men merely because prejudice permits it. My father was lucky. Guilty of many crimes, he never faced trial; indeed, he was crafty enough never to be charged. (When I showed him around the state in which I now live, he asked about a clock factory in one town. "How'd you know about that place?" I asked. He winced.) And even when the facts suggest factual guilt, the presumption of innocence requires a defense.
I confess to never having read much about the Sacco and Vanzetti trial. I was aware of the controversy surrounding it. Two left-leaning Italian immigrants prosecuted on flimsy evidence and convicted amid prejudice and the hysteria of the Palmer Red Scare. That's the textbook answer, acquired on the fly. But until reading Frankfurter's expose, I was unaware of the venality of the trial judge, Webster Thayer. Frankfurter describes a post-trial decision of Judge Thayer by calling it "a farrago of misquotations, misrepresentations, suppressions and mutilations" -- I've seen a few of those sorts of decisions. And I was unaware of just how badly consciousness of guilt evidence was used at the trial. Or to what extent prosecutorial misconduct contributed to the conviction: appeals to passion and prejudice were common, evidence was hidden from view, and justice scorned.
Frankfurter's book has not restored the fighting frame of mind I'll need to confront the morrow. But I commend this short read to trial lawyers in need of quick inspiration. We do fight for justice. Our clients depend on us in conflicts that transform their lives for better or worse. And, in the end, we stand alone sometimes defiant to the end and insisting that even the most scorned among us are entitled to all that the law, our passion, our intellect and our heart can provide. And when these higher sources of inspiration run dry, there's always the simple truth that every defendant is someone's father, mother, sister, brother. My father may have been a desperado, but for all that I still had too few chances to call him Dad.
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