When a car accident slows traffic, I am as morbid as any other rubber necker. Something about the harm that an accident can spawn draws me. The same is true of a crime, only more so. Intentional harm and its consequences mesmerizes.
So there I was in the wee hours of the morning reading a mass market publication regarding the Petit murders in Cheshire. St. Martin’s Press was the first to publish on the matter. Brian McDonald’s In the Middle of the Night: The Shocking True Story of a Family Killed in Cold Blood is a book I told myself I ought not to read. But in truth, I read it in one sitting.
What a colossal waste of time.
Advance press accounts of the book promised shocking new details. The book jacket announced "8 pages of startling photos." Why even the book’s subtitle evoked a classic in the true crime genre, Truman Capote’s In Cold Blood. McDonald had previously published. I wanted to see what a practiced hand could make of the chaos next door.
The writing is far from Capote. Leaden whoppers such as the following made it past a copy editor: The items stolen from homes by one of the accused amounted to a "veritable cross section of merchandise." Ugh. The photos are already familiar.
The book does not reflect any new and startling details of the case, at least not for readers of Connecticut newspapers. A lurid detail or two shocks, but press accounts of what has thus far been disclosed are already the stuff of nightmares. I read this book with a dawning and depressing sense of what Hannah Arendt once called "the banality of evil." The men accused of the crime, Joshua Komisarjevsky and Steven Hayes, aren’t satanic monsters capable of stunning acts of criminal boldness: they are two men with long histories of drug addiction. These men fought their own quotidian demons, and lost: Everyman as crackhead gone horribly wrong.
What is remarkable about the book is the fact that the author somehow scored four visits with Mr. Komisarjevsky before the good folks at the Department of Corrections figured out what was going on. Just how a reporter waltzed in for a few chats with one of the most securely confined pre-trial detainees in the state is a question that demands answers.
According to a report in The Hartford Courant, McDonald asserts that Mr. Komisarjevsky’s lawyers knew of the author’s visits, and of the author’s intention to write a tell-all in reliance on the interviews. When I first heard that claim, I scoffed. I know Jeremiah Donovan, and he is a good lawyer. Surely, he would not take such a risk with his client’s life.
But about two-thirds of the way through the book I noticed that I was growing strangely sympathetic to Mr. Komisrajevsky. Why, the young man is reportedly brilliant. He loves nature. He has shown compassion to suffering people at points in his life. He is well read. There are people who love and care for him.
I began to suspect that this book was really Exhibit A in the defense’s mitigation case: that’s the phase of trial after a jury has already found the client guilty, but must now determine whether to have him killed. Whether intentionally or not, McDonald’s book manages to render Mr. Komisarjevsky in terms that make him appear as something other than a ghoul.
Not so with Mr. Hayes. Of course, Mr. Hayes did not sit for interviews, or, for that matter, respond to letters that the author sent. Mr. Hayes remained silent, and he appears in this book as little more than as malevonet vector randomly seeking a destination.
This book interests less as a piece of writing than it does as a potential piece of evidence. Who permitted access to the prisoner and why? Whose interests are being served by publication of this work? And, fundamentally, is the Department of Corrections really as clueless as it seems? In the Middle of the Night is a black mark on the state’s criminal justice system. What next, Oprah on death row?
Reprinted with permission of the Connecticut Law Tribune.
Wednesday, September 30, 2009
Sunday, September 27, 2009
Cheshire Alert: Komisarjevsky Book Out This Week
On Tuesday, all Hell will break loose in the State of Connecticut. That is when Joshua Komisarjevsky's interviews will be published in a new book. That's the book in which he tells what really happened when a mother and her two daughters were were raped, beaten and set afire in a Cheshire home in July 2007. The man of the house, Dr. William Petit, was beaten with a baseball bat and left for dead. The book hits the stands this week.
Komisarjevsky, 29, is the youthful co-defendant among the two men accused of the triple homicides. His co-defendant Steven Hayes, 46, apparently played no role in producing the new book.
The real author is a fellow named Brian McDonald who scored three interviews with Mr. Komisarjevsky in a Connecticut prison before prison officials woke up and realized what was going on. McDonald claims everyone, including the defense team and prison officials, knew what was going on. I doubt it.
In the Middle of the Night: The Shocking Story of a Family Killed in Cold Blood, St. Martin's Press, is a mass market title, selling for $6.99. The copy writer for the book obviously hopes that readers will associate this work with Truman Capote's In Cold Blood. I've never read McDonald, although I find it hard to believe he writes as well as did Capote; few do or can.
Not surprisingly, Mr. Komisarjevsky lays blame for most of the wet work at the feet of his co-defendant. According to press reports, Mr. Komisarjevsky has already given police a 75-page statement laying blame on the older man. But details of that statement have been kept from public view, presumably to avoid inflaming public passion.
I am told by someone familiar with the book that it contains accounts of shocking violence that have thus far been kept from public view. The work is sure to inflame an already agitated and uneasy jury pool in Connecticut, where the two men await trial. Mr. Hayes is set for trial in January 2010; Mr. Komisarjevsky will be tried one year later.
I live one town over from where the slaughter took place. In the months that followed, you could almost see the fear in the air. Every bump in the night was a cause for alarm. There was anger everywhere: I spoke about the case at a local college and then reported threats I received the next day for standing up for the men's right to a fair trial to federal law enforcement. Things are only a touch calmer today. I suspect by Wednesday evening, public passion will once again be red hot.
I know the defense lawyers in these cases. There is no way they consented to Mr. Komisarjevsky's speaking to the press. By dint of these interviews, McDonald becomes one of the state's star witnesses. "Tell me, sir. What else did Mr. Komisarjevsky say?" the prosecutor will intone. And McDonald will tell all, thus boosting book sales yet more. Imagine Dominic Dunne on the stand.
How did the Department of Corrections let this happen? Mr. Hayes and Mr. Komisarjevsky are two of the most heavily guarded inmates in the state. A member of the public doesn't just sign up for a quick visit. Expect the defense to make a motion to find that McDonald was in the prison with the consent of the state, and then to suppress Mr. Komisarjevsky's statements. There is a cold logic to this position. The same state that prosecutes is the same state that holds the keys to the prison doors. It should not do for the prosecution to throw up its hands and say, "Oh, me; oh, my, I didn't know."
Publication of the book just months before the first trial in this case raises an interesting issue. What to do if a fair and impartial jury simply cannot be found?
New Haven Public Defender Thomas Ullman leads the defense team for Mr. Hayes. Mr. Ullman is a perfectionist at jury selection, routinely questioning each juror for an hour or more in a non-capital case. Jury selection alone in Mr. Hayes' case was already projected to last four to six months; once McDonald's book hits the stands I say double the estimate.
Suppose after ten or so months of jury selection a group of fair and impartial jurors just cannot be found. Suppose that this shocking case, a case that has transformed the name of a sleepy bedroom community into a national synonym for terror, so unnerves a jury pool that 12 men and women is more than the state can produce? Then what? Will the state then simply permit these men to plead to life without possibility of parole? The men are said to be willing to enter such pleas. Only vengeance and hysteria demands a trial and more blood spilled.
Of course, odds are a jury can be found. High-profile cases touch the imagination of all with the leisure and inclination to observe. Many folks, however, lead lives of such quiet desperation they have time for no one's sorrows but their own.
Whatever the outcome, these new book promises to re-ignite a flame and then to douse it with gasoline. The folks at the Department of Correction are to blame for this travesty. Just how do you hold two men in super-secure confinement and then wink when a reporter saunters in for a few questions?
Komisarjevsky, 29, is the youthful co-defendant among the two men accused of the triple homicides. His co-defendant Steven Hayes, 46, apparently played no role in producing the new book.
The real author is a fellow named Brian McDonald who scored three interviews with Mr. Komisarjevsky in a Connecticut prison before prison officials woke up and realized what was going on. McDonald claims everyone, including the defense team and prison officials, knew what was going on. I doubt it.
In the Middle of the Night: The Shocking Story of a Family Killed in Cold Blood, St. Martin's Press, is a mass market title, selling for $6.99. The copy writer for the book obviously hopes that readers will associate this work with Truman Capote's In Cold Blood. I've never read McDonald, although I find it hard to believe he writes as well as did Capote; few do or can.
Not surprisingly, Mr. Komisarjevsky lays blame for most of the wet work at the feet of his co-defendant. According to press reports, Mr. Komisarjevsky has already given police a 75-page statement laying blame on the older man. But details of that statement have been kept from public view, presumably to avoid inflaming public passion.
I am told by someone familiar with the book that it contains accounts of shocking violence that have thus far been kept from public view. The work is sure to inflame an already agitated and uneasy jury pool in Connecticut, where the two men await trial. Mr. Hayes is set for trial in January 2010; Mr. Komisarjevsky will be tried one year later.
I live one town over from where the slaughter took place. In the months that followed, you could almost see the fear in the air. Every bump in the night was a cause for alarm. There was anger everywhere: I spoke about the case at a local college and then reported threats I received the next day for standing up for the men's right to a fair trial to federal law enforcement. Things are only a touch calmer today. I suspect by Wednesday evening, public passion will once again be red hot.
I know the defense lawyers in these cases. There is no way they consented to Mr. Komisarjevsky's speaking to the press. By dint of these interviews, McDonald becomes one of the state's star witnesses. "Tell me, sir. What else did Mr. Komisarjevsky say?" the prosecutor will intone. And McDonald will tell all, thus boosting book sales yet more. Imagine Dominic Dunne on the stand.
How did the Department of Corrections let this happen? Mr. Hayes and Mr. Komisarjevsky are two of the most heavily guarded inmates in the state. A member of the public doesn't just sign up for a quick visit. Expect the defense to make a motion to find that McDonald was in the prison with the consent of the state, and then to suppress Mr. Komisarjevsky's statements. There is a cold logic to this position. The same state that prosecutes is the same state that holds the keys to the prison doors. It should not do for the prosecution to throw up its hands and say, "Oh, me; oh, my, I didn't know."
Publication of the book just months before the first trial in this case raises an interesting issue. What to do if a fair and impartial jury simply cannot be found?
New Haven Public Defender Thomas Ullman leads the defense team for Mr. Hayes. Mr. Ullman is a perfectionist at jury selection, routinely questioning each juror for an hour or more in a non-capital case. Jury selection alone in Mr. Hayes' case was already projected to last four to six months; once McDonald's book hits the stands I say double the estimate.
Suppose after ten or so months of jury selection a group of fair and impartial jurors just cannot be found. Suppose that this shocking case, a case that has transformed the name of a sleepy bedroom community into a national synonym for terror, so unnerves a jury pool that 12 men and women is more than the state can produce? Then what? Will the state then simply permit these men to plead to life without possibility of parole? The men are said to be willing to enter such pleas. Only vengeance and hysteria demands a trial and more blood spilled.
Of course, odds are a jury can be found. High-profile cases touch the imagination of all with the leisure and inclination to observe. Many folks, however, lead lives of such quiet desperation they have time for no one's sorrows but their own.
Whatever the outcome, these new book promises to re-ignite a flame and then to douse it with gasoline. The folks at the Department of Correction are to blame for this travesty. Just how do you hold two men in super-secure confinement and then wink when a reporter saunters in for a few questions?
The Times Fails In Sex Offender Story
Solomon Moore's piece in this morning's New York Times did less than nothing to advance understanding of the nation's sex offender laws. In fact, it set back understanding. Call it a high-class version of pandering to hysteria.
The headline was jarring enough: "Struggling to Keep Tabs on Paroled Sex Offenders."
Moore's piece reports on failures of parole. Agents can't keep up. One offender exposed himself to another person. Another kidnapped a 17-year-old girl. Another got in a shoot out with cops. And then there is the mother of all sex offenders, Phillip Garrido: He kidnapped a woman and raped her in 1991, and then held her as a sex slave in his backyard for 18 years, all under the apparently not-so-watchful eye of his parole officer.
These are notable failures of a system under stress. But what, really, is the cause of the stress? Do we need more prisons, longer sentences, more parole officers? Or do we need to do something no state seems really willing to do? To wit, make intelligent risk assessments about who is and is not a sex offender.
California is apparently the only state that places all released prisoners on parole. The crime of conviction does not matter. That means 120,000 men and women are placed on parole in California each year. It is no wonder that some of them slip through the cracks and commit horrendous crimes. When the state fails to attempt any intelligent risk assessment and wastes resources monitoring everyone, bad things will happen.
In California, as elsewhere, a young man convicted of consensual sex with a female just under the lawful age of consent is deemed a criminal. Statutory rape results in a conviction, prison and parole. But tell me, truly, are these young men really sex offenders in anything by name? To whom would Romeo have been required to report?
In some states, a person who urinates in public is guilty of a sex offense. In all states, looking at naked pictures of children is a crime. So is soliciting a young woman or man on line.
All this strikes me as the sort of silliness portrayed in the 1930s exploitation film "Reefer Madness." Why, but take a whiff of a marijuana cigarette and begin the inevitable descent into madness by way of all crimes imaginable. We forget now, viewing the film from the vantage point of changed mores and better understanding, that the film was not intended as farce or satire. The film first appeared as a straight up piece of public service, financed by a church group and distributed under the title "Tell Your Children."
We stoke a different sort of madness now. Ours is a culture dripping in libidinal images. Sex sells. Young women vie to become super models. Advertisements in some mainstream magazines are enough to make a modest person blush. Television has the look and feel of cheap seduction. Every where the libidinal engine is primed and fed the high octane of advertising. But let your desire once flourish outside the laws prescribed by law and you are at once branded for life a sex offender. Registration, imprisonment, parole and stigmatization are the norm.
There is something hypocritical about this dialectic: everywhere stoke the secret flames of desire and then descend with a vengeance on each and every flicker of lust. Do we hate ourselves this much?
The Times' story this morning failed to consider, much less ask, the question that really needs asking: Are all sex offenders, much less all felons, alike? The obvious answer is that they are not. There is a difference between a violent predator awaiting but an opportunity to strike again, and desire uncharacteristically inflames. The law's difference between the two is the real failure.
Hyper vigilance creates the very harm it seeks to avoid. When all are equally dangerous, scarce resources are stretched to the breaking point: There are greater opportunities for the dangerous to escape scrutiny and cause harm.
How do we identify those who are truly a risk of further harm? The truth is that we cannot. Every community is from time to time shocked when violence erupts from a spot once considered calm. But we do not eliminate this risk by locking down the entire nation and making the prison-industrial complex the new national pastime.
Shame on Solomon Moore and The New York Times. It missed a chance to educate. Instead, it merely titillated. I would expect this sort of thing from Fox News, but not the Gray Lady.
The headline was jarring enough: "Struggling to Keep Tabs on Paroled Sex Offenders."
Moore's piece reports on failures of parole. Agents can't keep up. One offender exposed himself to another person. Another kidnapped a 17-year-old girl. Another got in a shoot out with cops. And then there is the mother of all sex offenders, Phillip Garrido: He kidnapped a woman and raped her in 1991, and then held her as a sex slave in his backyard for 18 years, all under the apparently not-so-watchful eye of his parole officer.
These are notable failures of a system under stress. But what, really, is the cause of the stress? Do we need more prisons, longer sentences, more parole officers? Or do we need to do something no state seems really willing to do? To wit, make intelligent risk assessments about who is and is not a sex offender.
California is apparently the only state that places all released prisoners on parole. The crime of conviction does not matter. That means 120,000 men and women are placed on parole in California each year. It is no wonder that some of them slip through the cracks and commit horrendous crimes. When the state fails to attempt any intelligent risk assessment and wastes resources monitoring everyone, bad things will happen.
In California, as elsewhere, a young man convicted of consensual sex with a female just under the lawful age of consent is deemed a criminal. Statutory rape results in a conviction, prison and parole. But tell me, truly, are these young men really sex offenders in anything by name? To whom would Romeo have been required to report?
In some states, a person who urinates in public is guilty of a sex offense. In all states, looking at naked pictures of children is a crime. So is soliciting a young woman or man on line.
All this strikes me as the sort of silliness portrayed in the 1930s exploitation film "Reefer Madness." Why, but take a whiff of a marijuana cigarette and begin the inevitable descent into madness by way of all crimes imaginable. We forget now, viewing the film from the vantage point of changed mores and better understanding, that the film was not intended as farce or satire. The film first appeared as a straight up piece of public service, financed by a church group and distributed under the title "Tell Your Children."
We stoke a different sort of madness now. Ours is a culture dripping in libidinal images. Sex sells. Young women vie to become super models. Advertisements in some mainstream magazines are enough to make a modest person blush. Television has the look and feel of cheap seduction. Every where the libidinal engine is primed and fed the high octane of advertising. But let your desire once flourish outside the laws prescribed by law and you are at once branded for life a sex offender. Registration, imprisonment, parole and stigmatization are the norm.
There is something hypocritical about this dialectic: everywhere stoke the secret flames of desire and then descend with a vengeance on each and every flicker of lust. Do we hate ourselves this much?
The Times' story this morning failed to consider, much less ask, the question that really needs asking: Are all sex offenders, much less all felons, alike? The obvious answer is that they are not. There is a difference between a violent predator awaiting but an opportunity to strike again, and desire uncharacteristically inflames. The law's difference between the two is the real failure.
Hyper vigilance creates the very harm it seeks to avoid. When all are equally dangerous, scarce resources are stretched to the breaking point: There are greater opportunities for the dangerous to escape scrutiny and cause harm.
How do we identify those who are truly a risk of further harm? The truth is that we cannot. Every community is from time to time shocked when violence erupts from a spot once considered calm. But we do not eliminate this risk by locking down the entire nation and making the prison-industrial complex the new national pastime.
Shame on Solomon Moore and The New York Times. It missed a chance to educate. Instead, it merely titillated. I would expect this sort of thing from Fox News, but not the Gray Lady.
TLC: The Second Quintile Of Top Contributors
The last installment of top contributors to the Trial Lawyers College yielded two complaints about naming names. Once contributor demanded that her name be removed. No one from the college itself has raised an issue about publication of the list.
I am unaware of any legal principle that is breached by publishing the names, but I will this week refrain from naming individuals not already disclosed. I will provide mere initials for individuals. I will give the name of a charitable foundation that has contributed.
Nothing prevents the contributors from stepping forward to acknowledge their contribution in a comment. For that matter, nothing prevents readers from commenting on who these generous benefactors may be. The list is current as of June 2, 2009.
11. Gerry Spence. Lifetime contributions of $65,175.38. He last contributed $1,200 on February 26, 2009. His year-to-date total is $1,200.
12. L.J. Lifetime contributions of $63,675. Last contribution was $10,000 on November 16, 2005.
13. G.F. Lifetime contributions of $61,400. Last contribution was $50,000 on February 16, 2009. Year-to-date total is $50,000.
14. J.Z. Lifetime contributions of $60,750. Last contribution was $1,200 on February 26, 2009. Year-topdate total is $1,300.
15. M.C. Lifetime contributions of $57,750. Last contribution was $3,750 0n February 28, 2009. Year-to-date total is $8,925.
16. L.D. Lifetime contributions of $54,500. Last contribution was $1,000 on February 27, 2004.
17. R.H. Lifetime contributions of $51,400. Last contribution was $250 on September 30, 2005.
18. L.W. Lifetime contributions of $50,250. Last contributon was $250 on September 30, 2005.
19. J.S. Lifetime contributions of $43,125. Last contribution was $5,000 on March 11, 2008.
20. Columbia Charitable Foundation. Lifetime contributions of $39,000. Last contribution was $10,000 on November 27, 1996.
Next: 21-30. Preview: range is $38,575 to $29,400.
I am unaware of any legal principle that is breached by publishing the names, but I will this week refrain from naming individuals not already disclosed. I will provide mere initials for individuals. I will give the name of a charitable foundation that has contributed.
Nothing prevents the contributors from stepping forward to acknowledge their contribution in a comment. For that matter, nothing prevents readers from commenting on who these generous benefactors may be. The list is current as of June 2, 2009.
11. Gerry Spence. Lifetime contributions of $65,175.38. He last contributed $1,200 on February 26, 2009. His year-to-date total is $1,200.
12. L.J. Lifetime contributions of $63,675. Last contribution was $10,000 on November 16, 2005.
13. G.F. Lifetime contributions of $61,400. Last contribution was $50,000 on February 16, 2009. Year-to-date total is $50,000.
14. J.Z. Lifetime contributions of $60,750. Last contribution was $1,200 on February 26, 2009. Year-topdate total is $1,300.
15. M.C. Lifetime contributions of $57,750. Last contribution was $3,750 0n February 28, 2009. Year-to-date total is $8,925.
16. L.D. Lifetime contributions of $54,500. Last contribution was $1,000 on February 27, 2004.
17. R.H. Lifetime contributions of $51,400. Last contribution was $250 on September 30, 2005.
18. L.W. Lifetime contributions of $50,250. Last contributon was $250 on September 30, 2005.
19. J.S. Lifetime contributions of $43,125. Last contribution was $5,000 on March 11, 2008.
20. Columbia Charitable Foundation. Lifetime contributions of $39,000. Last contribution was $10,000 on November 27, 1996.
Next: 21-30. Preview: range is $38,575 to $29,400.
TLC: Morbidly Curious
I've received private notes and a few public comments asking why I have picked an unnecessary fight with Gerry Spence's Trial Lawyers College. One infuriated loyalist calls me obsessed, a soul in so much pain I cannot let it go. Another wants to know simply what happened to cause such disappointment. With some reservations, I give a more complete account.
I went to TLC in 1997 to learn to become a better lawyer. I was younger, ambitious and competitive. I did not see another lawyer at the ranch who so outclassed me that I felt over matched. I enjoyed the camaraderie, and, I wanted the approval of Gerry Spence. When asked to return as staff, I was thrilled: It was recognition of my skill. But it was also more.
My father abandoned my family when I was a child. In my initial psychodrama, Spence played my father. When things got a little intense, I accused him of abandoning me. I didn't know Spence well at the time, but I saw him flinch. I knew that I had struck a chord in him that resonated from his life experience, not mine. I recall the startled look of panic still. I let it go. I had never heard of psychodrama before this. I had no idea what was going on.
I am not sure how close Spence and I became in the years I ran around at the ranch. Some folks perceived us to be close, but that is different. I am a difficult person and don't yield easily to another's embrace. We spent time together at one location or another. He arranged a speaking gig for me in Idaho; we traveled to New York City together; I enjoyed that time, but I was worried that I was becoming too comfortable eating off of someone else's plate. No one fed Spence table scraps when he was learning to bark. It is hard for me to respect someone comfortable wearing a leash.
When I left the ranch, I did so for two reasons: First, I am ambitious. I had the sense that I was a favored son and could have carved out a comfortable place for myself at TLC. But I wanted to see how far I could fly on my own power. Living under the wing of another was too safe. Being a top dog at Gerry Spence's Trial Lawyers College was still living in someone else's kennel. And how could I agree that he is "America's Finest Trial Lawyer?" I cannot bend a knee to someone who makes that claim of himself. I just can't, and I cannot get used to the idea that others would settle learning to play only second fiddle.
I also left because the college was becoming something akin to a psychodramatic day ward. Each year another group of students arrived, each with headstrong and needy folks all its own. In each class there were new souls battling for the limited resource of recognition. When I was perceived close to Gerry, others wanted things from me. One current board member asked me to broker an approach to Gerry. I did, and the board seat was given. All this politicking cost me far more energy than the limited gains I received from attending.
So I broke free, and shook loose. I wrote about my need to get out from under Spence's shadow. And I got a very intense letter from Spence. I've hesitated until now to share its contents. But since folks keep assuming I have a screw loose for asking questions, I'll air some of it.
"Norm, let me tell you first that what you did, did hurt me. I have not felt this kind of hurt since my mother's death. It took me nearly thirty years to realize that her need to kill herself was hers, and that it was not my fault," he wrote. The letter is three pages long. It stunned me, and surprises me still. What, possibly, could I have meant to him and why? Our paths intersected briefly when he was about 70 years old. I did not respond to the letter. I simply walked away, as I knew the seduction of the man's shadow, and wanted to learn to cast my own.
A year or so ago, I went to watch Spence in action in Detroit in the Feiger trial. I had never seen him in trial. This was the first time he'd faced a jury in all the years I knew him. I wanted to see if he was good on his feet. He was, and I wrote about it. We talked, and resumed a guarded email communication.
Much to my surprise, he mentioned the letter about his pain again. I asked him to send me a new copy as I had long since discarded mine. He did, and as I read it I once again was startled. First, he had saved the letter. But more: how had I come to mean this much? Did all the bizarre energy in our relationship come just from me, or had he unleashed a hurricane all his own? I had been open about my paternal issues with him. I asked him to be open with me about his. Could two adults meet on a bridge of sorrows?
How had I become so important to him? I asked. The response disappointed, and disappoints still: "That's a good question." In fact, it is no response at all. Instead, our correspondence quickly dwindled to a farce. Spence manipulated the mirror to keep the focus on me, never acknowledging the mirror he was holding, and why he felt the need to hold it. It is a pattern I have observed in him over and over again, in things as small as his own blog page. He pronounces, others adore. But he never acknowledges the voice of another except as a reflection of his own. Hold a mirror to Spence and the image vanishes.
Friends and lovers share. I do not believe that Gerry did or does in any meaningful way. He takes particulars and gives universals: in exchange for your truth you receive platitudes. I felt manipulated. It is a nifty trick this receipt of love, contributions, and institutional immortality in exchange for wind-blown wafers.
So am I obsessed with TLC? I don't think so. I hardly thought of the institution at all for the nine years that lapsed between leaving and returning for a reunion. When I returned, I was stunned to see a place that had wilfully forgotten its past. I was saddened to see proud lawyers craning and crooning to become fixtures in another's crown. And I was startled to see how easily my need to believe could be rekindled. I am weak, and I know myself to be so.
When I got home from the reunion, folks sent me information about the financial underpinnings of the place. What I learned shocked me, and, frankly, no one at the ranch has yet come clean in any public forum about just who owns the ranch. Instead, ranks close, communications are shut down: the college no longer lists blog pages of alumni, but links merely to Gerry's. I'm told one board member hired a private investigator to poke into another's affairs. It's a hot house of misplaced desire.
I admit to a certain forensic fascination with what is going on there. One old hand told me he is writing a book about the history of the place. The dynamics that transform proud lawyers into shadow dancing souls content to sit second chair in life's great drama, and to contribute tens of thousands of dollars for the privilege of being counted a disciple, fascinates me. There is a netherworld bridging the gap between Kurtz in Heart of Darkness and the lost boys playing at survival in Lord of the Flies: that world is on display at the Thunderhead Ranch. Forgive me if I cannot help but look, mouth agape. This train wreck of the soul causes me to stare: how narrowly I missed the carnage myself.
Why have I not asked TLC for comment about the finances and board shenanigans? I suppose it was because I have already learned once that honest questions are met with evasion. The college knows what the issues are that I have raised. It refuses to answer honest questions. It won't answer because doing so shares its power with a critic. Starve a flame of oxygen and it expires. Keep taking but don't give. And if a truth is uttered that cannot be met, evade.
I will lose interest, eventually. I did once before and it will happen soon enough again. But until I do, I'll keep turning over the rocks to see what slithers away in the light of day. Obsessed? Call it that if you will. It feels more like morbid curiosity.
I went to TLC in 1997 to learn to become a better lawyer. I was younger, ambitious and competitive. I did not see another lawyer at the ranch who so outclassed me that I felt over matched. I enjoyed the camaraderie, and, I wanted the approval of Gerry Spence. When asked to return as staff, I was thrilled: It was recognition of my skill. But it was also more.
My father abandoned my family when I was a child. In my initial psychodrama, Spence played my father. When things got a little intense, I accused him of abandoning me. I didn't know Spence well at the time, but I saw him flinch. I knew that I had struck a chord in him that resonated from his life experience, not mine. I recall the startled look of panic still. I let it go. I had never heard of psychodrama before this. I had no idea what was going on.
I am not sure how close Spence and I became in the years I ran around at the ranch. Some folks perceived us to be close, but that is different. I am a difficult person and don't yield easily to another's embrace. We spent time together at one location or another. He arranged a speaking gig for me in Idaho; we traveled to New York City together; I enjoyed that time, but I was worried that I was becoming too comfortable eating off of someone else's plate. No one fed Spence table scraps when he was learning to bark. It is hard for me to respect someone comfortable wearing a leash.
When I left the ranch, I did so for two reasons: First, I am ambitious. I had the sense that I was a favored son and could have carved out a comfortable place for myself at TLC. But I wanted to see how far I could fly on my own power. Living under the wing of another was too safe. Being a top dog at Gerry Spence's Trial Lawyers College was still living in someone else's kennel. And how could I agree that he is "America's Finest Trial Lawyer?" I cannot bend a knee to someone who makes that claim of himself. I just can't, and I cannot get used to the idea that others would settle learning to play only second fiddle.
I also left because the college was becoming something akin to a psychodramatic day ward. Each year another group of students arrived, each with headstrong and needy folks all its own. In each class there were new souls battling for the limited resource of recognition. When I was perceived close to Gerry, others wanted things from me. One current board member asked me to broker an approach to Gerry. I did, and the board seat was given. All this politicking cost me far more energy than the limited gains I received from attending.
So I broke free, and shook loose. I wrote about my need to get out from under Spence's shadow. And I got a very intense letter from Spence. I've hesitated until now to share its contents. But since folks keep assuming I have a screw loose for asking questions, I'll air some of it.
"Norm, let me tell you first that what you did, did hurt me. I have not felt this kind of hurt since my mother's death. It took me nearly thirty years to realize that her need to kill herself was hers, and that it was not my fault," he wrote. The letter is three pages long. It stunned me, and surprises me still. What, possibly, could I have meant to him and why? Our paths intersected briefly when he was about 70 years old. I did not respond to the letter. I simply walked away, as I knew the seduction of the man's shadow, and wanted to learn to cast my own.
A year or so ago, I went to watch Spence in action in Detroit in the Feiger trial. I had never seen him in trial. This was the first time he'd faced a jury in all the years I knew him. I wanted to see if he was good on his feet. He was, and I wrote about it. We talked, and resumed a guarded email communication.
Much to my surprise, he mentioned the letter about his pain again. I asked him to send me a new copy as I had long since discarded mine. He did, and as I read it I once again was startled. First, he had saved the letter. But more: how had I come to mean this much? Did all the bizarre energy in our relationship come just from me, or had he unleashed a hurricane all his own? I had been open about my paternal issues with him. I asked him to be open with me about his. Could two adults meet on a bridge of sorrows?
How had I become so important to him? I asked. The response disappointed, and disappoints still: "That's a good question." In fact, it is no response at all. Instead, our correspondence quickly dwindled to a farce. Spence manipulated the mirror to keep the focus on me, never acknowledging the mirror he was holding, and why he felt the need to hold it. It is a pattern I have observed in him over and over again, in things as small as his own blog page. He pronounces, others adore. But he never acknowledges the voice of another except as a reflection of his own. Hold a mirror to Spence and the image vanishes.
Friends and lovers share. I do not believe that Gerry did or does in any meaningful way. He takes particulars and gives universals: in exchange for your truth you receive platitudes. I felt manipulated. It is a nifty trick this receipt of love, contributions, and institutional immortality in exchange for wind-blown wafers.
So am I obsessed with TLC? I don't think so. I hardly thought of the institution at all for the nine years that lapsed between leaving and returning for a reunion. When I returned, I was stunned to see a place that had wilfully forgotten its past. I was saddened to see proud lawyers craning and crooning to become fixtures in another's crown. And I was startled to see how easily my need to believe could be rekindled. I am weak, and I know myself to be so.
When I got home from the reunion, folks sent me information about the financial underpinnings of the place. What I learned shocked me, and, frankly, no one at the ranch has yet come clean in any public forum about just who owns the ranch. Instead, ranks close, communications are shut down: the college no longer lists blog pages of alumni, but links merely to Gerry's. I'm told one board member hired a private investigator to poke into another's affairs. It's a hot house of misplaced desire.
I admit to a certain forensic fascination with what is going on there. One old hand told me he is writing a book about the history of the place. The dynamics that transform proud lawyers into shadow dancing souls content to sit second chair in life's great drama, and to contribute tens of thousands of dollars for the privilege of being counted a disciple, fascinates me. There is a netherworld bridging the gap between Kurtz in Heart of Darkness and the lost boys playing at survival in Lord of the Flies: that world is on display at the Thunderhead Ranch. Forgive me if I cannot help but look, mouth agape. This train wreck of the soul causes me to stare: how narrowly I missed the carnage myself.
Why have I not asked TLC for comment about the finances and board shenanigans? I suppose it was because I have already learned once that honest questions are met with evasion. The college knows what the issues are that I have raised. It refuses to answer honest questions. It won't answer because doing so shares its power with a critic. Starve a flame of oxygen and it expires. Keep taking but don't give. And if a truth is uttered that cannot be met, evade.
I will lose interest, eventually. I did once before and it will happen soon enough again. But until I do, I'll keep turning over the rocks to see what slithers away in the light of day. Obsessed? Call it that if you will. It feels more like morbid curiosity.
Saturday, September 26, 2009
Win, Lose or Draw?
Trial lawyers speak of wins and losses. Sometimes the outcome of a case is less clear. I am reeling this morning after yesterday's verdict in a murder case I tried for the past four weeks in Hartford.
There was no disputing that my client shot one woman point blank in the head in the the kitchen of his home, killing her almost instantly. He shot another woman in the chest. She survived. He was a convicted felon. So the state charged murder, attempted murder, assault in the first degree and criminal possession of a firearm. The defense was self-defense: We claimed that he perceived a threat of great bodily harm as he shot.
Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.
The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?
I say we did, and it hurts. The client faces 30 years on the charges of conviction and the enhancement. While that is certainly better than what would have happened had he been convicted of murder -- 80 plus years was a foreseeable outcome in that case -- we pressed for a mere conviction on the firearms count. That was just five years.
The state must now chose whether to retry the murder count. I suspect it will. The victims' family and friends are understandably upset with the outcome. In the past 12 hours, I have received plenty of hostile comments, many printed as comments on posts below. As I walked passed a group of observers in court yesterday, one woman tried to taunt me: "Wizard of Oz, Wizard of Oz, Wizard of Oz," she hissed. It is an odd juxtaposition, this intersection between the raw emotion of a murder trial and readers checking out a lawyer's web page. Welcome to the future.
Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.
Throughout the proceedings, my client was willing to avoid the risk of a murder trial and plead to a term of 25 years. The best offer we could get from the state was 35 years. We countered by asking the state to consider 30 years. "No deal," said the state. My client could not accept that offer, so we went to trial. Ironically, after a month of trial, we ended up right where we started. That feels a lot like a draw, and like wasted effort.
But criminal court often feels like waste. It isn't about justice. As Clarence Darrow once observed, "there is no justice in or out of court." What there is is pain. Vengeance for a victim isn't justice. And neither, frankly, are acquittals. Nothing can right permanent loss. We play gods and goddess trying to rearrange suffering tokens at trial.
There are plenty of gaping wounds walking dazed in the wake of this week's verdict. My client faces substantial time. I failed to protect him. Those close to the victims feel cheated and now despise not just my client, but me. And anonymous malefactors come forward to spew venom, too. Death breeds pain ad infinitum.
One exchange during trial captured the subterranean emotional currents of a trial of this sort.
A witness testified that he took my client to a bus station in the wake of the shooting.
"You are lying, aren't you, sir?" I asked the witness, reminding him he was under oath.
"Yes," he stammered.
"And you are lying because you are afraid of people in this courtroom, isn't that right?"
"Yes."
"And those people are not sitting on my side of the aisle, are they?"
"No, they are not," he said.
"You are lying because your life has been threatened by the family of one of the victims, isn't that right?"
"Yes," he said.
"You are lying because you are afraid that if you tell the truth you will be killed, isn't that right?"
"Yes," he replied.
It was a wasted Perry Mason Moment. His testimony didn't matter a whit. All that mattered is what went down in the kitchen one night when four people argued. And as regards that conflict, a jury did not convict my client. That is a win we cannot savor. I suspect we will try the case again.
If the law was about justice, my client would not face another trial. We tell jurors that the presumption of innocence is a complete defense. We tell them, too, that the entire burden of proof is on the state. A verdict, we say, must be unanimous. Query: since the state failed in this case to win a conviction on murder, relying on a silly Sapphistic argument about "we women" and jealousy, why does it get to try the case again? If the answer is that the jury failed to make a unanimous finding of "Not Guilty" that sounds perilously close to imposing a silent burden of proof on my client.
Win, lose or draw, both sides now regroup and prepare for round two. Or will the state accept the offer my client made many, many months ago? Will my client still offer a plea to that much time? The state failed this time around, and there is no reason for the state to expect a better result next time. But reason doesn't govern in cases such as these, passions demand their due ...
There was no disputing that my client shot one woman point blank in the head in the the kitchen of his home, killing her almost instantly. He shot another woman in the chest. She survived. He was a convicted felon. So the state charged murder, attempted murder, assault in the first degree and criminal possession of a firearm. The defense was self-defense: We claimed that he perceived a threat of great bodily harm as he shot.
Yesterday the jury decided that it could not decide what happened as to the murder. It also decided that it could not decide whether there was an attempted murder. No verdict means a mistrial. The state can now bring him to trial all over again, at least as to the murder.
The jury convicted my client of assault in the first degree and the firearms count. It also found facts sufficient to enhance the penalty by five years. We expected to lose the firearms count, and hoped for acquittals in the remaining three counts. It did not happen. Did we lose?
I say we did, and it hurts. The client faces 30 years on the charges of conviction and the enhancement. While that is certainly better than what would have happened had he been convicted of murder -- 80 plus years was a foreseeable outcome in that case -- we pressed for a mere conviction on the firearms count. That was just five years.
The state must now chose whether to retry the murder count. I suspect it will. The victims' family and friends are understandably upset with the outcome. In the past 12 hours, I have received plenty of hostile comments, many printed as comments on posts below. As I walked passed a group of observers in court yesterday, one woman tried to taunt me: "Wizard of Oz, Wizard of Oz, Wizard of Oz," she hissed. It is an odd juxtaposition, this intersection between the raw emotion of a murder trial and readers checking out a lawyer's web page. Welcome to the future.
Some friends have congratulated me on the outcome. "Great job!" one wrote. Staring down murder and attempted murder charges in a case where apparently unarmed women were shot point-blank by a much larger man is not easy. But it does not feel like a win to me. Those taunting me for failing have found their mark. I am an easy bleed, I am afraid.
Throughout the proceedings, my client was willing to avoid the risk of a murder trial and plead to a term of 25 years. The best offer we could get from the state was 35 years. We countered by asking the state to consider 30 years. "No deal," said the state. My client could not accept that offer, so we went to trial. Ironically, after a month of trial, we ended up right where we started. That feels a lot like a draw, and like wasted effort.
But criminal court often feels like waste. It isn't about justice. As Clarence Darrow once observed, "there is no justice in or out of court." What there is is pain. Vengeance for a victim isn't justice. And neither, frankly, are acquittals. Nothing can right permanent loss. We play gods and goddess trying to rearrange suffering tokens at trial.
There are plenty of gaping wounds walking dazed in the wake of this week's verdict. My client faces substantial time. I failed to protect him. Those close to the victims feel cheated and now despise not just my client, but me. And anonymous malefactors come forward to spew venom, too. Death breeds pain ad infinitum.
One exchange during trial captured the subterranean emotional currents of a trial of this sort.
A witness testified that he took my client to a bus station in the wake of the shooting.
"You are lying, aren't you, sir?" I asked the witness, reminding him he was under oath.
"Yes," he stammered.
"And you are lying because you are afraid of people in this courtroom, isn't that right?"
"Yes."
"And those people are not sitting on my side of the aisle, are they?"
"No, they are not," he said.
"You are lying because your life has been threatened by the family of one of the victims, isn't that right?"
"Yes," he said.
"You are lying because you are afraid that if you tell the truth you will be killed, isn't that right?"
"Yes," he replied.
It was a wasted Perry Mason Moment. His testimony didn't matter a whit. All that mattered is what went down in the kitchen one night when four people argued. And as regards that conflict, a jury did not convict my client. That is a win we cannot savor. I suspect we will try the case again.
If the law was about justice, my client would not face another trial. We tell jurors that the presumption of innocence is a complete defense. We tell them, too, that the entire burden of proof is on the state. A verdict, we say, must be unanimous. Query: since the state failed in this case to win a conviction on murder, relying on a silly Sapphistic argument about "we women" and jealousy, why does it get to try the case again? If the answer is that the jury failed to make a unanimous finding of "Not Guilty" that sounds perilously close to imposing a silent burden of proof on my client.
Win, lose or draw, both sides now regroup and prepare for round two. Or will the state accept the offer my client made many, many months ago? Will my client still offer a plea to that much time? The state failed this time around, and there is no reason for the state to expect a better result next time. But reason doesn't govern in cases such as these, passions demand their due ...
Friday, September 25, 2009
Waiting ...
The jury has been out for the better part of two days now. They are considering four charges: murder, attempted murder, assault in the first degree and criminal possession of a firearm. My client was involved in an argument that turned deadly in the kitchen of his home with his common-law wife and two of her girlfriends. He shot one women and then turned the gun on a second, shooting her twice.
At the close of business yesterday, the jury reported that they are deadlocked on two charges and that no further deliberations were likely to result in a change. Little does the jury know that their real work begins now.
It is customary in cases such as these for the court to instruct the jury to keep deliberating, to heed the honestly held views of others, and to work together. The so-called Allen charge in federal courts is an invitation to reconsider; under state law in Connecticut we call it the Chip Smith charge.
During voir dire we were careful to explain to jurors their rights. And today that explanation may matter. "Do you understand that no one in this courthouse, and that includes the judge, can ask you to change your vote simply for the sake of a unanimous verdict?" Each juror said they understood.
We are hopeful on the defense side of the aisle. We all but conceded the criminal possession count. My client fired a pistol at two women he thought were attacking him. He is a convicted felon. Felons can't have guns. There isn't much to argue about and nullification is a gift we did not ask for, not when we were asking jurors for so much already: We asked them to conclude our client was justified in killing. That is a hard, hard thing for a juror to do. We know that.
If jurors have decided two of the four counts, but are not able to agree on two, we hope it means that they have acquitted on the murder and convicted on criminal possession. Nothing else makes sense. The first shot was the killing shot. If the jury concluded the murder was unjustified it would seem simple for them to conclude that the second victim's shooting was unjustified as well.
We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by delivering the Chip Smith charge. I am glad I am not a juror.
At the close of business yesterday, the jury reported that they are deadlocked on two charges and that no further deliberations were likely to result in a change. Little does the jury know that their real work begins now.
It is customary in cases such as these for the court to instruct the jury to keep deliberating, to heed the honestly held views of others, and to work together. The so-called Allen charge in federal courts is an invitation to reconsider; under state law in Connecticut we call it the Chip Smith charge.
During voir dire we were careful to explain to jurors their rights. And today that explanation may matter. "Do you understand that no one in this courthouse, and that includes the judge, can ask you to change your vote simply for the sake of a unanimous verdict?" Each juror said they understood.
We are hopeful on the defense side of the aisle. We all but conceded the criminal possession count. My client fired a pistol at two women he thought were attacking him. He is a convicted felon. Felons can't have guns. There isn't much to argue about and nullification is a gift we did not ask for, not when we were asking jurors for so much already: We asked them to conclude our client was justified in killing. That is a hard, hard thing for a juror to do. We know that.
If jurors have decided two of the four counts, but are not able to agree on two, we hope it means that they have acquitted on the murder and convicted on criminal possession. Nothing else makes sense. The first shot was the killing shot. If the jury concluded the murder was unjustified it would seem simple for them to conclude that the second victim's shooting was unjustified as well.
We are hopeful, but scared. The stakes are enormous and everything in my client's life depends today on the decision of twelve strangers now locked for a couple of days in a small room. The jurors will return to this pressure cooker today, and the judge will no doubt turn up the heat by delivering the Chip Smith charge. I am glad I am not a juror.
Thursday, September 24, 2009
The Magic Mirror
Once upon a time, a mighty man lived atop a windswept mountain. He was feared throughout the land. His words flew on death-dealing wings.
But he was alone when darkness fell. He filled his days with warring words and the press of combat. He lived by day, but at night he cowered. There were no battles to fight when darkness fell. The wind howled and he shuddered, a lamb alone.
The mighty man took a wife, a bride of prepossessing beauty. He took her to his mountain lair, and when the day’s battle was done, he filled his evening with loving conquest. But at night, when passion was spent, he cowered; there was neither battle nor desire by which to measure the soul within him. The wind howled and he shuddered, a lamb alone.
One night he found his wife’s mirror, left on a table where she would adorn herself with lover’s pearls.
"Ah," the mighty man said, "a mirror. I will not be alone any longer when the night wind howls." He held the mirror and looked into it, anticipating the sight; was he not a warrior mighty in love and war? But there was no image to be seen. The mirror reflected what was within the man. The glass was empty. And there was nothing, nothing when the man was alone and the wind howled, and he shuddered.
The man feared the mirror. But he was the master of his fear and he turned the mirror into a weapon. "My magic mirror," he called it. He learned to use the mirror to seduce others in gentler arts than war and love. As he grew old and time chisled tawny youth into pitted granite, he learned to conjure with the mirror, to bend others to his will.
"See, see how much I love you," he would say, and hold the mirror up so that another could behold their own satisfied smile. "You are great," he would say. "Like me, you are a mighty warrior," he would tell others. And they would look into the mirror, and know that all was well. They loved the mighty man for making them happy with his words and his presence. But they loved him most of all for holding a mirror tinged with the silent validation of their hopes.
The magic mirror became the mighty man’s prize possession. He created a castle in which to house it, and people came from far and wide to bask within the image it cast. All wanted to be like the mighty man, and when he sang sweet songs of praise to them while holding the mirror, each saw a better version of themselves, a version they could adore, much as they adored the mighty man.
But time steals vigor even from the mighty. The man grew tired of holding the mirror. He would try to put it away, but the quiet silence when there was no war, no love, no adoration left him empty. The winds would howl day and night, and he shuddered, a lamb alone. He needed to hold the mirror so that others could look at him and believe they were seeing themselves.
One day an admirer asked to hold the mirror. He wanted to hold it so that the masterful warrior could see the comforting image within. The admirer had taken the mighty man’s words to heart. "If I am loved, should I not love?" he said. "If I am great, should I not share the greatness?" He believed the mighty man’s words and wanted to return the things he had been given that the mighty man called gifts.
But the mighty man knew that the mirror was empty for him. And he recoiled in horror. He could not sit for a mirror held by another. He would lose his power if others knew that inside him there was not even wind, only a howling chasm that could only be filled by the conquest of another, whether in war, in love or fawning praise.
So the mighty man reached for the mirror, and as he did so it slipped from his grasp, shattering into tiny shards when it hit the dry dirt. The many who came to view themselves as he sang sweet songs of love were terrified. No magic mirror left them like the mighty man, empty and alone.
So they scurried, each of them, to find a tiny shard to cast a reflection. In a thousand directions they scattered. Each one struggled to find happiness in the wordless reflection of a fragment of the magic mirror. They had come to crave the mighty man’s praise. They sang to themselves but were not satisfied.
The mighty man now had nothing. No mirror to hold, no person looking toward him rapt as he held his magic tool before them. He withered, this man of oak. No war, no love, no one to beam at the sound of his voice. And the man died, becoming a silent wind, passing empty and alone over desolate places.
His admirers wept great tears the day the man was buried. They named the castle after him, and vowed never to forget how he made them feel. They put the pieces of the shattered mirror together and took turns holding it for one another. They pretended they, too, were mighty. But as days passed into weeks and then months, their tears continued and a great pond formed. They did not know what the mighty man knew: they were empty, so they poured themselves out in saline streams of sorrow.
The admirers would gather around the pool of tears and sing songs about the mighty man. They hoped he would return. They called him love and declaimed that love lasts forever. They vied for the honor of caring for the pond.
One day, an admirer bent to pick up a feather floating on the surface of the pond. As he bent, he saw his full reflection for the first time since the magic mirror was broken. The reflection was pure, there were no lines betraying the cracks of the reconstructed mirror.
"Look, look," he said to the others. "It is me. The magic is back. I am whole and I am alive," he said. His tears dried and he saw a smile, true joy on the water’s surface.
But the others saw only water from where they sat. Each looked away and then into a tiny shard of the shattered mirror. Each kept a tiny relic for themselves, savoring it. But in each mirror they saw only a silent reflection of what was once glory, and they hated their gleeful friend at the pond. They hated him because he was happy alone when the mighty wind came. The others did not want to be lambs alone; they preferred the comfort of the herd.
They sit still on the windswept mountain playing at might and cowering through the nights. And they are alone, forgotten when the winds howl. They sit still waiting for the mighty man to reappear with the magic mirror to make them feel as though they are alive. They sit waiting to die and not fearing death because they are not truly alive without the magic mirror and the mighty man to tell them how to live.
But he was alone when darkness fell. He filled his days with warring words and the press of combat. He lived by day, but at night he cowered. There were no battles to fight when darkness fell. The wind howled and he shuddered, a lamb alone.
The mighty man took a wife, a bride of prepossessing beauty. He took her to his mountain lair, and when the day’s battle was done, he filled his evening with loving conquest. But at night, when passion was spent, he cowered; there was neither battle nor desire by which to measure the soul within him. The wind howled and he shuddered, a lamb alone.
One night he found his wife’s mirror, left on a table where she would adorn herself with lover’s pearls.
"Ah," the mighty man said, "a mirror. I will not be alone any longer when the night wind howls." He held the mirror and looked into it, anticipating the sight; was he not a warrior mighty in love and war? But there was no image to be seen. The mirror reflected what was within the man. The glass was empty. And there was nothing, nothing when the man was alone and the wind howled, and he shuddered.
The man feared the mirror. But he was the master of his fear and he turned the mirror into a weapon. "My magic mirror," he called it. He learned to use the mirror to seduce others in gentler arts than war and love. As he grew old and time chisled tawny youth into pitted granite, he learned to conjure with the mirror, to bend others to his will.
"See, see how much I love you," he would say, and hold the mirror up so that another could behold their own satisfied smile. "You are great," he would say. "Like me, you are a mighty warrior," he would tell others. And they would look into the mirror, and know that all was well. They loved the mighty man for making them happy with his words and his presence. But they loved him most of all for holding a mirror tinged with the silent validation of their hopes.
The magic mirror became the mighty man’s prize possession. He created a castle in which to house it, and people came from far and wide to bask within the image it cast. All wanted to be like the mighty man, and when he sang sweet songs of praise to them while holding the mirror, each saw a better version of themselves, a version they could adore, much as they adored the mighty man.
But time steals vigor even from the mighty. The man grew tired of holding the mirror. He would try to put it away, but the quiet silence when there was no war, no love, no adoration left him empty. The winds would howl day and night, and he shuddered, a lamb alone. He needed to hold the mirror so that others could look at him and believe they were seeing themselves.
One day an admirer asked to hold the mirror. He wanted to hold it so that the masterful warrior could see the comforting image within. The admirer had taken the mighty man’s words to heart. "If I am loved, should I not love?" he said. "If I am great, should I not share the greatness?" He believed the mighty man’s words and wanted to return the things he had been given that the mighty man called gifts.
But the mighty man knew that the mirror was empty for him. And he recoiled in horror. He could not sit for a mirror held by another. He would lose his power if others knew that inside him there was not even wind, only a howling chasm that could only be filled by the conquest of another, whether in war, in love or fawning praise.
So the mighty man reached for the mirror, and as he did so it slipped from his grasp, shattering into tiny shards when it hit the dry dirt. The many who came to view themselves as he sang sweet songs of love were terrified. No magic mirror left them like the mighty man, empty and alone.
So they scurried, each of them, to find a tiny shard to cast a reflection. In a thousand directions they scattered. Each one struggled to find happiness in the wordless reflection of a fragment of the magic mirror. They had come to crave the mighty man’s praise. They sang to themselves but were not satisfied.
The mighty man now had nothing. No mirror to hold, no person looking toward him rapt as he held his magic tool before them. He withered, this man of oak. No war, no love, no one to beam at the sound of his voice. And the man died, becoming a silent wind, passing empty and alone over desolate places.
His admirers wept great tears the day the man was buried. They named the castle after him, and vowed never to forget how he made them feel. They put the pieces of the shattered mirror together and took turns holding it for one another. They pretended they, too, were mighty. But as days passed into weeks and then months, their tears continued and a great pond formed. They did not know what the mighty man knew: they were empty, so they poured themselves out in saline streams of sorrow.
The admirers would gather around the pool of tears and sing songs about the mighty man. They hoped he would return. They called him love and declaimed that love lasts forever. They vied for the honor of caring for the pond.
One day, an admirer bent to pick up a feather floating on the surface of the pond. As he bent, he saw his full reflection for the first time since the magic mirror was broken. The reflection was pure, there were no lines betraying the cracks of the reconstructed mirror.
"Look, look," he said to the others. "It is me. The magic is back. I am whole and I am alive," he said. His tears dried and he saw a smile, true joy on the water’s surface.
But the others saw only water from where they sat. Each looked away and then into a tiny shard of the shattered mirror. Each kept a tiny relic for themselves, savoring it. But in each mirror they saw only a silent reflection of what was once glory, and they hated their gleeful friend at the pond. They hated him because he was happy alone when the mighty wind came. The others did not want to be lambs alone; they preferred the comfort of the herd.
They sit still on the windswept mountain playing at might and cowering through the nights. And they are alone, forgotten when the winds howl. They sit still waiting for the mighty man to reappear with the magic mirror to make them feel as though they are alive. They sit waiting to die and not fearing death because they are not truly alive without the magic mirror and the mighty man to tell them how to live.
Wednesday, September 23, 2009
Pocket Pool And The Fourth Estate
New Haven Public Defender Thomas Ullman has never been one to pull a punch, but he did last week. He wants an investigation of who was leaking material about the murder of Annie Le to the press. But he’s asking that the investigation stop at the door of the local police station. Ullman doesn’t want reporters questioned.
Here is how the game of media pocket pool gets played and why the journalistic privilege is a bad idea.
Let’s say the media gets all hot and bothered about a topic. Reporters start calling around looking for information. (Our office just received a dozen or so calls from news organizations around the country. Were we representing the man accused of killing Ms. Le? Even The New York Times called saying they heard I had the case.)
Suppose you have an agenda during one of these frenzies. You can give the press information but do so on the condition that the material you provide is not for attribution. In other words, you can spin whatever you are selling to a reporter ready, willing and able to report it without anyone ever knowing you did it. It’s magic.
Nothing prevents a liar from making something up. Nothing prevents the portrayal of a half truth. There are no checks and balances to account for the spin given a set of facts. Indeed, there is nothing to assure that the anonymous person coughing up some juicy morsel is reliable at all.
Journalists will chime in at this point that professional ethics govern. Why, a reporter wouldn’t reprint just anything.
Perhaps that is true. But if you are a reliable source, a person known to the reporter, you can often get something into a newspaper without your fingerprints appearing on the story at all. I call this game Hide and Go Seek.
Press advocates say that the Fourth Estate is entitled to the use of a journalistic privilege because protecting the identity of sources yields broader and better debate about a wider scope of issues. That may be true. We have Deep Throat to thank for Watergate, and there are whistleblowers who speak in fear for life and limb.
But let’s not conflate metaphors. The Fourth Estate is not a fourth branch of government. Making the press unaccountable but shrouding it with impenetrable privileges does not fit within a system of checks and balances. Rather, it makes the press immune from the very sort of countervailing pressures at work in our constitutional system.
The relationship between lawyer and client is cloaked in a privilege. But even this privilege is not sacrosanct. The crime-fraud exception to the privilege permits discovery of communication when the lawyer becomes a participant in unlawful activity. Why shouldn’t a similar provision require the press to cough up a source? What justification permits a source to perpetrate a fraud or half-truth, peddle it to the press, and then permit the misinformation to be printed as gospel
with impunity?
The Le case shows just how badly reporters can be used. Four law enforcement agencies were called in to investigate in the early stages: The FBI, the New Haven Police Department, the Yale Police Department and the Connecticut State Police. Reporters have sources in all of these agencies, and press reports about the investigation were flooded not just with confidential information undisclosable to the defendant, but also with information that wasn’t even true. I have spoken to reporters who were so bewildered by all this, they did not know what to print.
Ullman wants to know who leaked all this swill. Who had an interest in making sure the press got fed? Who undermined the defendant’s right to a fair trial by polluting the media with material still under seal at the time of this writing?
Who has a motive? Members of the New Haven Police Department and the Yale Police Department. Both still have trousers around their ankles as they stumble away from the still unsolved Jovin case, now more than ten years old. Both want this time to get their man regardless of the consequences.
Does Ullman really expect the police to tell the truth? I say go the people who printed their words. Get the names from reporters, and stop letting cops play pocket pool with reporters desperate for a story. Don’t pull a punch. And don’t give a privilege to those willing to print the lies of folks who won’t give their name.
Reprinted courtesy of the Connecticut Law Tribune.
Here is how the game of media pocket pool gets played and why the journalistic privilege is a bad idea.
Let’s say the media gets all hot and bothered about a topic. Reporters start calling around looking for information. (Our office just received a dozen or so calls from news organizations around the country. Were we representing the man accused of killing Ms. Le? Even The New York Times called saying they heard I had the case.)
Suppose you have an agenda during one of these frenzies. You can give the press information but do so on the condition that the material you provide is not for attribution. In other words, you can spin whatever you are selling to a reporter ready, willing and able to report it without anyone ever knowing you did it. It’s magic.
Nothing prevents a liar from making something up. Nothing prevents the portrayal of a half truth. There are no checks and balances to account for the spin given a set of facts. Indeed, there is nothing to assure that the anonymous person coughing up some juicy morsel is reliable at all.
Journalists will chime in at this point that professional ethics govern. Why, a reporter wouldn’t reprint just anything.
Perhaps that is true. But if you are a reliable source, a person known to the reporter, you can often get something into a newspaper without your fingerprints appearing on the story at all. I call this game Hide and Go Seek.
Press advocates say that the Fourth Estate is entitled to the use of a journalistic privilege because protecting the identity of sources yields broader and better debate about a wider scope of issues. That may be true. We have Deep Throat to thank for Watergate, and there are whistleblowers who speak in fear for life and limb.
But let’s not conflate metaphors. The Fourth Estate is not a fourth branch of government. Making the press unaccountable but shrouding it with impenetrable privileges does not fit within a system of checks and balances. Rather, it makes the press immune from the very sort of countervailing pressures at work in our constitutional system.
The relationship between lawyer and client is cloaked in a privilege. But even this privilege is not sacrosanct. The crime-fraud exception to the privilege permits discovery of communication when the lawyer becomes a participant in unlawful activity. Why shouldn’t a similar provision require the press to cough up a source? What justification permits a source to perpetrate a fraud or half-truth, peddle it to the press, and then permit the misinformation to be printed as gospel
with impunity?
The Le case shows just how badly reporters can be used. Four law enforcement agencies were called in to investigate in the early stages: The FBI, the New Haven Police Department, the Yale Police Department and the Connecticut State Police. Reporters have sources in all of these agencies, and press reports about the investigation were flooded not just with confidential information undisclosable to the defendant, but also with information that wasn’t even true. I have spoken to reporters who were so bewildered by all this, they did not know what to print.
Ullman wants to know who leaked all this swill. Who had an interest in making sure the press got fed? Who undermined the defendant’s right to a fair trial by polluting the media with material still under seal at the time of this writing?
Who has a motive? Members of the New Haven Police Department and the Yale Police Department. Both still have trousers around their ankles as they stumble away from the still unsolved Jovin case, now more than ten years old. Both want this time to get their man regardless of the consequences.
Does Ullman really expect the police to tell the truth? I say go the people who printed their words. Get the names from reporters, and stop letting cops play pocket pool with reporters desperate for a story. Don’t pull a punch. And don’t give a privilege to those willing to print the lies of folks who won’t give their name.
Reprinted courtesy of the Connecticut Law Tribune.
Cigars On The Isle Of Lesbos
I still can't tell whether I just heard one of the best closing arguments of my career or whether it was one of the worst arguments conceivable. The jury is, literally, still out.
My client was accused of murder, attempted murder and assault. He shot two women in his kitchen one night. The women were at the marital home with his common-law wife. His wife and her friends decided to leave. One witness testified they were going out to buy snacks. The client's wife testified they were going out to buy Dutch Masters cigars, so that they could come back and make blunts, i.e., cigars stuffed with marijuana.
My client did not want his wife to go out. It was 1:30 a.m. He told her he did not want her to go. She said she was leaving. They argued. He demanded she leave her car keys; she had, after all, been drinking and had, at a minimum, popped an Ecstacy pill that night. She left. She left and was walking down the driveway with her friends. My client threw her clothing onto the driveway and told her not to come back.
One of his wife's girlfriends took umbrage with this. She went back to the house. There was spitting, shoving, a thrown beer bottle. In the end, my client was in a corner of his kitchen when he shot one of the women and wounded another. He testified that he was under attack and feared for his safety. My client's DNA is under the decedent's fingernails.
This is a hard case to defend. No question about it. At least one the victims was stoned. My client had been drinking. An ugly, ugly night with horrible consequences.
The jury in this case was two thirds women. Here is what the state argued, in sum:
You heard in voir dire the defense ask what you thought of the saying that a man's home is his castle. Translated that means women are mere chattel. Indeed, saith the prosecutor, other Americans of both genders were property for a long time in this country. (Obligatory nod to the African-American juror.)
The defendant here was jealous that his wife was going out with her girlfriends. He lured his wife back into the home by throwing her clothing on the driveway. He then shot her girlfriends because he could not intimidate and terrorize them the way he could her.
Did I hear this right? My client was jealous, perhaps sexually jealous, of the women my client's wife was partying with? When he threw the clothes out he used it as bait to lure all three back in so he could kill the other two? This sounds like a bad melodrama reflecting trailer life on the Isle of Lesbos. Where did this stuff come from?
After telling the jury that it need not find motive to convict, which is correct as a matter of law, the state then imported this libidinal motive from well beyond the bleechers in left field. (And while I am on the topic of sports, do not let me forget the cross examination of my client about his playing pick up basketball: since he played basketball without referees and is short, he knows how to avoid bigger bodies. Why, it was suggested, he could have picked and rolled his way out of the kitchen.)
How the state transformed this shooting into a manipulative plan to control the wife is beyond me. The women left. The gun was in arm's length when they left. How does his wife's walking out the door constitute his exercise of control? And what of this blatant and blunt appeal to race and gender: A man's home is his castle a code word for misogyny? What next, the Fourth Amendment a tool of sexism?
The argument seemed dumb when I heard it yesterday. It still seems dumb today. But what I think doesn't matter. Perhaps the state knew more about the jury than I knew. Perhaps this silent appeal to the the flip-side of misogyny will work. If it does, I concede that I did not see this coming. But then, I am a man.... Sometimes when I see a cigar all I really see is a cigar.
My client was accused of murder, attempted murder and assault. He shot two women in his kitchen one night. The women were at the marital home with his common-law wife. His wife and her friends decided to leave. One witness testified they were going out to buy snacks. The client's wife testified they were going out to buy Dutch Masters cigars, so that they could come back and make blunts, i.e., cigars stuffed with marijuana.
My client did not want his wife to go out. It was 1:30 a.m. He told her he did not want her to go. She said she was leaving. They argued. He demanded she leave her car keys; she had, after all, been drinking and had, at a minimum, popped an Ecstacy pill that night. She left. She left and was walking down the driveway with her friends. My client threw her clothing onto the driveway and told her not to come back.
One of his wife's girlfriends took umbrage with this. She went back to the house. There was spitting, shoving, a thrown beer bottle. In the end, my client was in a corner of his kitchen when he shot one of the women and wounded another. He testified that he was under attack and feared for his safety. My client's DNA is under the decedent's fingernails.
This is a hard case to defend. No question about it. At least one the victims was stoned. My client had been drinking. An ugly, ugly night with horrible consequences.
The jury in this case was two thirds women. Here is what the state argued, in sum:
You heard in voir dire the defense ask what you thought of the saying that a man's home is his castle. Translated that means women are mere chattel. Indeed, saith the prosecutor, other Americans of both genders were property for a long time in this country. (Obligatory nod to the African-American juror.)
The defendant here was jealous that his wife was going out with her girlfriends. He lured his wife back into the home by throwing her clothing on the driveway. He then shot her girlfriends because he could not intimidate and terrorize them the way he could her.
Did I hear this right? My client was jealous, perhaps sexually jealous, of the women my client's wife was partying with? When he threw the clothes out he used it as bait to lure all three back in so he could kill the other two? This sounds like a bad melodrama reflecting trailer life on the Isle of Lesbos. Where did this stuff come from?
After telling the jury that it need not find motive to convict, which is correct as a matter of law, the state then imported this libidinal motive from well beyond the bleechers in left field. (And while I am on the topic of sports, do not let me forget the cross examination of my client about his playing pick up basketball: since he played basketball without referees and is short, he knows how to avoid bigger bodies. Why, it was suggested, he could have picked and rolled his way out of the kitchen.)
How the state transformed this shooting into a manipulative plan to control the wife is beyond me. The women left. The gun was in arm's length when they left. How does his wife's walking out the door constitute his exercise of control? And what of this blatant and blunt appeal to race and gender: A man's home is his castle a code word for misogyny? What next, the Fourth Amendment a tool of sexism?
The argument seemed dumb when I heard it yesterday. It still seems dumb today. But what I think doesn't matter. Perhaps the state knew more about the jury than I knew. Perhaps this silent appeal to the the flip-side of misogyny will work. If it does, I concede that I did not see this coming. But then, I am a man.... Sometimes when I see a cigar all I really see is a cigar.
Tuesday, September 22, 2009
Suicide Ever So Cruel
The news hit me like a bullet, stopping me cold and numbing me.
"Are you still there?" my secretary asked.
She had just finished telling me a long-time client killed himself today. His blood had hardly dried before the press calls started. He walked out onto the grounds of his property, put a gun to his head, and ended it all. Tout suite. I am reeling still. Some part of me is begging the gods for relief. Bad things keep happening. Walking in the shadow of death haunts me.
I thought I might have seen enough death for one day. The state and I gave closing arguments in a murder trial today. I stood in a courtroom and asked a jury of 12 to find that my client was justified in shooting a young woman to death. Her family sat only feet away. The courtroom seemed ankle deep in blood; it was hard to keep my footing. I am sure I stumbled.
When arguments ended, yet another legal issue emerged relating to the law of self defense. The state and I met with the judge. This new issues appears undecided in any authoritative way. The answer seems obvious to me and to the state; unforntunately, the state's position and my position are polar opposites. The judge must make a call. We end early to give him time to think about the issue. In the meantime, the jury went home and I got in my car happy to have made it through a bad day.
And now my client is dead. By his own hand. He leaves behind many who love him, including me.
This man came to me years ago in trouble, and I did all that I could to help him avoid the trouble. We were largely successful. In the course of representing him, I would frequently travel to Florida, to stay at one of his homes. My wife and I were guests at his estate in Connecticut. I spent hours with him, learning his business and discussing everything from books to politics to the state of the law. Just yesterday we exchanged emails about a case on which I was working for him. He seemed down. I made a mental note to call him when I had my verdict, to see if there was anything I could do for him.
And now he is dead. Just like that. I am the underside of a scab.
I wanted to cry on the drive back to my office. And I almost did. Then the lawyer in me surfaced. Death yields issues, and issues, as lawyers know, means busywork. I set about making calls to see what needed doing to wind up a long life passionately lived.
My client was not an easy man. He was sometimes more feared than loved. He did not tolerate fools, and he was wealthy enough to speak his mind with impunity. Tonight his mind is gone, and the body that housed it is to be cremated. I am angry that he left without so much as a goodbye, and reminded again that we come and we go far too quickly.
I want to say something to him now. But I cannot. And I will never be able to do so again. This is wrong, and there is nothing to be done about it. Suicide is cruel.
"Are you still there?" my secretary asked.
She had just finished telling me a long-time client killed himself today. His blood had hardly dried before the press calls started. He walked out onto the grounds of his property, put a gun to his head, and ended it all. Tout suite. I am reeling still. Some part of me is begging the gods for relief. Bad things keep happening. Walking in the shadow of death haunts me.
I thought I might have seen enough death for one day. The state and I gave closing arguments in a murder trial today. I stood in a courtroom and asked a jury of 12 to find that my client was justified in shooting a young woman to death. Her family sat only feet away. The courtroom seemed ankle deep in blood; it was hard to keep my footing. I am sure I stumbled.
When arguments ended, yet another legal issue emerged relating to the law of self defense. The state and I met with the judge. This new issues appears undecided in any authoritative way. The answer seems obvious to me and to the state; unforntunately, the state's position and my position are polar opposites. The judge must make a call. We end early to give him time to think about the issue. In the meantime, the jury went home and I got in my car happy to have made it through a bad day.
And now my client is dead. By his own hand. He leaves behind many who love him, including me.
This man came to me years ago in trouble, and I did all that I could to help him avoid the trouble. We were largely successful. In the course of representing him, I would frequently travel to Florida, to stay at one of his homes. My wife and I were guests at his estate in Connecticut. I spent hours with him, learning his business and discussing everything from books to politics to the state of the law. Just yesterday we exchanged emails about a case on which I was working for him. He seemed down. I made a mental note to call him when I had my verdict, to see if there was anything I could do for him.
And now he is dead. Just like that. I am the underside of a scab.
I wanted to cry on the drive back to my office. And I almost did. Then the lawyer in me surfaced. Death yields issues, and issues, as lawyers know, means busywork. I set about making calls to see what needed doing to wind up a long life passionately lived.
My client was not an easy man. He was sometimes more feared than loved. He did not tolerate fools, and he was wealthy enough to speak his mind with impunity. Tonight his mind is gone, and the body that housed it is to be cremated. I am angry that he left without so much as a goodbye, and reminded again that we come and we go far too quickly.
I want to say something to him now. But I cannot. And I will never be able to do so again. This is wrong, and there is nothing to be done about it. Suicide is cruel.
Today's Terror
Closing argument is one reason people go to law school. The fantasy has it as follows: A client's life hangs in the balance. Through eloquence, wit and penetrating intellect, you save the client's life with words that will echo through the ages. Realty is a sleepless night and stubborn facts.
We will give closing arguments today in a murder case I have been in trial with for the past three weeks. My client is alleged to have shot one woman to death and to have attempted to murder another by shooting her in the chest. The shootings took place during an argument in the client's kitchen. His claim is self-defense.
The stakes are almost as high as the law permits us to wager in a criminal case. If convicted, it is virtually certain the client will die behind bars even if he lives to a ripe old age. The murder alone carries up to 60 years imprisonment. But the state's idea of a plea bargain in this case is obscene. We rejected the state's offer of decades behind bars on a plea. We demanded a jury.
This is where things get hinky.
On the sporting theory of the trial, I should be riding high. Client, co-counsel and I should be high-fiving in the locker room, applying war paint and getting ready to tumble out on the field. Perhaps the client's family can cheer as we enter. The game is on, and it is time to perform. Is this not what a lawyer trains for, decade by decade?
But trial is not a sport. It is not even an athletic competition. The sides are rarely evenly drawn, and the stakes are far higher than those of any game. A woman died in this case; another was injured. Their families sit in the courtroom, tense and respectful of the proceedings. I glance back at them from time to time and know now that my role in this drama is akin to the Devil's. They expect nothing good from me, and, hence, they see my faults highlighted through the prism of their grief. There is nothing I can do or say to them to convey my sorrow over the nature of the proceedings.
But my role is clear in this case. I am to defend a man to the exclusion of the world. His future is in my hands, and for days, I have stood in the well of the court questioning witnesses, trying to blunt the thrust of the state's damning accusations. My client, the state says, killed without justification, and then set out to kill again when all danger had passed. I know the force of the state's case has not been lost on the jurors. I wonder whether what I say will find welcoming ears.
Although lawyers are mere ambassadors of the troubles of others, we can't help but be influenced by the metaphors common in our culture: Lawyers speak of winning cases, although, for the life of me, there is no win in a courtroom steeped in blood: there is only pain, and the avoidance of inflicting yet more pain without sufficient and good cause.
Will I "win" the case we argue today? My ego demands that I do. Lawyers boast of never, or, almost never, losing. A verdict in my client's favor helps make my phone ring: it will foster something like hope in the hearts of others unstrung by fear.
I tried a good case. There is only one question I would not ask again, and that error is but a small part of the record in this case. My adversary was skilled and professional; the judge, although not perfect, was fair. I stormed, fumed, fussed, cajoled and then, finally, when it was clear that I could not bluster my way to the outcome I desired, I settled in to try a difficult case.
In the end, juries try to do the right thing for the right reasons. We place them in the terrifying cauldron of a courtroom and then present searing truths to people unaccustomed to the red hot chaos life often yields.
I did not choose the facts of the case I tried these past few weeks. They were created by others. But I did choose how to question witnesses, what law to rely upon, how best to meld law and fact in the combat of trial to persuade a jury of 12 that my client was justified in the acts leading to the death of another and the injury of yet another.
The outcome? It will soon be out of my hands and in the hands of strangers. Did I choose well? Will I "win"? Did the lawyering in this case matter at all or did the facts merely speak to unbiased minds?
Good questions all, but all dwarfed by the preoccupation that will define the time between now and the time the jury decides the case: Is my client guilty or not guilty? It all comes down to that. At once, I am reduced to impotence and feel what my client feels: terror in the face of the unknown.
We will give closing arguments today in a murder case I have been in trial with for the past three weeks. My client is alleged to have shot one woman to death and to have attempted to murder another by shooting her in the chest. The shootings took place during an argument in the client's kitchen. His claim is self-defense.
The stakes are almost as high as the law permits us to wager in a criminal case. If convicted, it is virtually certain the client will die behind bars even if he lives to a ripe old age. The murder alone carries up to 60 years imprisonment. But the state's idea of a plea bargain in this case is obscene. We rejected the state's offer of decades behind bars on a plea. We demanded a jury.
This is where things get hinky.
On the sporting theory of the trial, I should be riding high. Client, co-counsel and I should be high-fiving in the locker room, applying war paint and getting ready to tumble out on the field. Perhaps the client's family can cheer as we enter. The game is on, and it is time to perform. Is this not what a lawyer trains for, decade by decade?
But trial is not a sport. It is not even an athletic competition. The sides are rarely evenly drawn, and the stakes are far higher than those of any game. A woman died in this case; another was injured. Their families sit in the courtroom, tense and respectful of the proceedings. I glance back at them from time to time and know now that my role in this drama is akin to the Devil's. They expect nothing good from me, and, hence, they see my faults highlighted through the prism of their grief. There is nothing I can do or say to them to convey my sorrow over the nature of the proceedings.
But my role is clear in this case. I am to defend a man to the exclusion of the world. His future is in my hands, and for days, I have stood in the well of the court questioning witnesses, trying to blunt the thrust of the state's damning accusations. My client, the state says, killed without justification, and then set out to kill again when all danger had passed. I know the force of the state's case has not been lost on the jurors. I wonder whether what I say will find welcoming ears.
Although lawyers are mere ambassadors of the troubles of others, we can't help but be influenced by the metaphors common in our culture: Lawyers speak of winning cases, although, for the life of me, there is no win in a courtroom steeped in blood: there is only pain, and the avoidance of inflicting yet more pain without sufficient and good cause.
Will I "win" the case we argue today? My ego demands that I do. Lawyers boast of never, or, almost never, losing. A verdict in my client's favor helps make my phone ring: it will foster something like hope in the hearts of others unstrung by fear.
I tried a good case. There is only one question I would not ask again, and that error is but a small part of the record in this case. My adversary was skilled and professional; the judge, although not perfect, was fair. I stormed, fumed, fussed, cajoled and then, finally, when it was clear that I could not bluster my way to the outcome I desired, I settled in to try a difficult case.
In the end, juries try to do the right thing for the right reasons. We place them in the terrifying cauldron of a courtroom and then present searing truths to people unaccustomed to the red hot chaos life often yields.
I did not choose the facts of the case I tried these past few weeks. They were created by others. But I did choose how to question witnesses, what law to rely upon, how best to meld law and fact in the combat of trial to persuade a jury of 12 that my client was justified in the acts leading to the death of another and the injury of yet another.
The outcome? It will soon be out of my hands and in the hands of strangers. Did I choose well? Will I "win"? Did the lawyering in this case matter at all or did the facts merely speak to unbiased minds?
Good questions all, but all dwarfed by the preoccupation that will define the time between now and the time the jury decides the case: Is my client guilty or not guilty? It all comes down to that. At once, I am reduced to impotence and feel what my client feels: terror in the face of the unknown.
Sunday, September 20, 2009
Fairy Tales: Prince Hyancinth and the Dear Little Princess
Once upon a time, a princess's beauty bewitched a king. He broke a spell to win her as a bride, but fell upon a curse all his own. The king and his betrothed would have a son. But the son would not find happiness until the son learned a painful truth: his nose was too long.
In due course, a son was born. And, as the curse would have it, his nose was far, far too long. But he was a king's son, and the courtiers surrounding the boy never let on that they knew the truth about his nose. The boy grew up among flatterers.
The boy became a full-blooded prince and finally fell in love himself. As the prince was about to kiss the hand of his beloved, she vanished, and was whisked away by an enchanter. The prince was crushed and wandered the Earth looking for his beloved.
The prince met an old woman, a fairy. He sought her aid. She could not stop talking, first about the size of his nose, then about anything that passed through her mind. She served the famished prince a meal and chattered to her servants. The servants pretended great interest in all the fairy, who was once a princess, had to say. The servants were flatterers, you see, and the old woman loved to talk. They hung on her every word as though it were wisdom and not mere wind.
"How stupid people are not to see their own faults!" the prince mused to himself. "That comes of being a princess: she has been spoiled by flatterers, who have made her believe she is a moderate talker." The prince thought how sensible he was never to have fallen under the sway of the flattering sort. But he was still blind to his enormous nose.
The fairy made the prince's long lost love reappear. His beloved was in a crystal palace. The prince rushed to kiss her hand, but his nose was too long and kept his lips from finding their mark. He realized the length of his nose, and he was force to admit, for the first time, that his nose was too long. At once, the crtysal surrounding the princess shattered and the two were united in love.
"You see how self-love keeps us from knowing our own defects or mind and body. Our reason tries in vain to show them to us. We refuse to see them till we find them in the way of our interests."
Lucky the prince was to have love of something other than self provide him a motive to see a truth shared by others. All are not so lucky.
----
This is a complex tale, although Andrew Lang, in the Blue Fairy Book, relays it in just eight pages. But the moral is pointed. Self-love and flattery blind us, and they can keep from us the things we want most. We see painful truths only when we must, and then the truth hurts. We will avoid this revealing pain as long as we can. Social psychologists call this cognitive dissonance.
Vanity serves both the flatterer and the flatterer's object of admiration. The object sees an image of his own glory reflected in the bended words of the flatterer. And the flatterer gets validation in return: does not a great one heed what he, the little one, has to say? A strange and symbiotic relationship emerges, a relationship of mutual deceit. Both master and slave, as Hegel noted, are imprisoned in the stilted image possessed by the other.
Imagine, if you will, a man who declared himself the finest tradesman in all the land. He invites other in the same trade to his home, and he lavishes them with praise. "I love you," he tells them, and to each he shines a loving smile. The others lavish gifts of time and money on the finest. They can bask in the glow of his love so long as they give without real question and generously. They are a peer to the mighty, and suddenly, they too enjoy a reflected sense of self worth.
But the finest gets more and more lonely. He needs more and more praise to fill the emptiness within. His soul is a dark pit. As praise rises in the depths of this pit, the hollow echo of an empty heart merely changes tone. He is never filled.
A little voice turns louder in his mind, and at night, when there are no smiles to reassure him, his bedclothes become leaden walls. The mirror tells a truth that adoration cannot change. His time is coming to an end. More, he bellows, more!
So he gives the form of love to all who will accept it, and more gifts he receives. The walls of the crystal palace surrounding him grow thicker and thicker. His admirers sense the great one's inchoate need and lavish greater and greater gifts upon him. A monument rises to his name. All smile in the day's bright light: Love they have discovered, and the finest, he, finally, has found an uncritical admiration. He is the finest and they are his beloved. All is well behind the crystalline walls of a secret place, a place at which only new admirers are welcome. The spiral grows ever more frenzied.
But it is appointed unto all men, even the finest, to die. And in that revealing moment the bonds of flattery dissolve. The finest is no more, and what passed for the love he offered is vanished. The flatterers remain, alone, each with their thoughts and one another. But a flatterer without an icon is so much like a brooding hen without an egg. The flatterer clucks, scratches at the Earth, and frets. Such hens are masterless slaves.
How much better it would be for flatterer and flattered to be told a simple truth. There is no finest, and they are not elect because they have learned to feed another's need. Both lover and beloved live an illusion, an illusion in which love of self prevents them truly from seeing the other. Master and slave are bound, two halves forming less than a whole, wound forever in mutual wounds that no dressing can make into a thing of beauty.
Self-love is a poison. It hurts to purge a toxin. This is a pain all avoid until their interests force them to endure it. And only in fairy tales are there truly happy endings. Or in those lives fortunate to find a gentle love that gives without demanding tribute in return. A true beloved does not need her lover to call her the finest: her lover knows she is the finest without being told.
In due course, a son was born. And, as the curse would have it, his nose was far, far too long. But he was a king's son, and the courtiers surrounding the boy never let on that they knew the truth about his nose. The boy grew up among flatterers.
The boy became a full-blooded prince and finally fell in love himself. As the prince was about to kiss the hand of his beloved, she vanished, and was whisked away by an enchanter. The prince was crushed and wandered the Earth looking for his beloved.
The prince met an old woman, a fairy. He sought her aid. She could not stop talking, first about the size of his nose, then about anything that passed through her mind. She served the famished prince a meal and chattered to her servants. The servants pretended great interest in all the fairy, who was once a princess, had to say. The servants were flatterers, you see, and the old woman loved to talk. They hung on her every word as though it were wisdom and not mere wind.
"How stupid people are not to see their own faults!" the prince mused to himself. "That comes of being a princess: she has been spoiled by flatterers, who have made her believe she is a moderate talker." The prince thought how sensible he was never to have fallen under the sway of the flattering sort. But he was still blind to his enormous nose.
The fairy made the prince's long lost love reappear. His beloved was in a crystal palace. The prince rushed to kiss her hand, but his nose was too long and kept his lips from finding their mark. He realized the length of his nose, and he was force to admit, for the first time, that his nose was too long. At once, the crtysal surrounding the princess shattered and the two were united in love.
"You see how self-love keeps us from knowing our own defects or mind and body. Our reason tries in vain to show them to us. We refuse to see them till we find them in the way of our interests."
Lucky the prince was to have love of something other than self provide him a motive to see a truth shared by others. All are not so lucky.
----
This is a complex tale, although Andrew Lang, in the Blue Fairy Book, relays it in just eight pages. But the moral is pointed. Self-love and flattery blind us, and they can keep from us the things we want most. We see painful truths only when we must, and then the truth hurts. We will avoid this revealing pain as long as we can. Social psychologists call this cognitive dissonance.
Vanity serves both the flatterer and the flatterer's object of admiration. The object sees an image of his own glory reflected in the bended words of the flatterer. And the flatterer gets validation in return: does not a great one heed what he, the little one, has to say? A strange and symbiotic relationship emerges, a relationship of mutual deceit. Both master and slave, as Hegel noted, are imprisoned in the stilted image possessed by the other.
Imagine, if you will, a man who declared himself the finest tradesman in all the land. He invites other in the same trade to his home, and he lavishes them with praise. "I love you," he tells them, and to each he shines a loving smile. The others lavish gifts of time and money on the finest. They can bask in the glow of his love so long as they give without real question and generously. They are a peer to the mighty, and suddenly, they too enjoy a reflected sense of self worth.
But the finest gets more and more lonely. He needs more and more praise to fill the emptiness within. His soul is a dark pit. As praise rises in the depths of this pit, the hollow echo of an empty heart merely changes tone. He is never filled.
A little voice turns louder in his mind, and at night, when there are no smiles to reassure him, his bedclothes become leaden walls. The mirror tells a truth that adoration cannot change. His time is coming to an end. More, he bellows, more!
So he gives the form of love to all who will accept it, and more gifts he receives. The walls of the crystal palace surrounding him grow thicker and thicker. His admirers sense the great one's inchoate need and lavish greater and greater gifts upon him. A monument rises to his name. All smile in the day's bright light: Love they have discovered, and the finest, he, finally, has found an uncritical admiration. He is the finest and they are his beloved. All is well behind the crystalline walls of a secret place, a place at which only new admirers are welcome. The spiral grows ever more frenzied.
But it is appointed unto all men, even the finest, to die. And in that revealing moment the bonds of flattery dissolve. The finest is no more, and what passed for the love he offered is vanished. The flatterers remain, alone, each with their thoughts and one another. But a flatterer without an icon is so much like a brooding hen without an egg. The flatterer clucks, scratches at the Earth, and frets. Such hens are masterless slaves.
How much better it would be for flatterer and flattered to be told a simple truth. There is no finest, and they are not elect because they have learned to feed another's need. Both lover and beloved live an illusion, an illusion in which love of self prevents them truly from seeing the other. Master and slave are bound, two halves forming less than a whole, wound forever in mutual wounds that no dressing can make into a thing of beauty.
Self-love is a poison. It hurts to purge a toxin. This is a pain all avoid until their interests force them to endure it. And only in fairy tales are there truly happy endings. Or in those lives fortunate to find a gentle love that gives without demanding tribute in return. A true beloved does not need her lover to call her the finest: her lover knows she is the finest without being told.
TLC: The Top Ten Contributors
Who are the top ten donors at the Trial Lawyer's College? As of June 2, 2009, the leaders of the charitable pack are as follows:
1. Paul Luvera, a lifetime grand total of $205,250, with $25,000 contributed thus far this year.
2. Morris Dees, a lifetime total of $125,000. Dees last contributed in July 2000.
3. William Trine, a lifetime total of $117,610. Trine last contributed in March 2008.
4. Mark Mueller, a lifetime total of $110,065. Mueller last contributed in May 2009. His contribution this year is thus far $500.
5. The Spence Law Firm, LLC, a lifetime total of $110,000. The firm last contributed in October 2002.
6. Alejandro Blanco, a lifetime total of $89,676. Blanco's last contribution was in September 2008.
7. NAME DELETED AND CONTRIBUTOR'S REQUEST, a lifetime contribution of $83,000. Last contributed in August 2008.
8. Thomas Metier, a lifetime contribution of $79,675. Metier last contributed in December 2008.
9. R. Rex Parris, a lifetime contribution of $73,825. Parris's year-to-date contribution for 2009 is $100.
10. NAME DELETED BY REQUEST OF DONOR, a lifetime contribution of $72,450. She has contributed $3,000 thus far this year.
Trine and Parris are the only board members on the top ten.
Next: 11-20. Preview: contributor 11 is Gerry Spence.
1. Paul Luvera, a lifetime grand total of $205,250, with $25,000 contributed thus far this year.
2. Morris Dees, a lifetime total of $125,000. Dees last contributed in July 2000.
3. William Trine, a lifetime total of $117,610. Trine last contributed in March 2008.
4. Mark Mueller, a lifetime total of $110,065. Mueller last contributed in May 2009. His contribution this year is thus far $500.
5. The Spence Law Firm, LLC, a lifetime total of $110,000. The firm last contributed in October 2002.
6. Alejandro Blanco, a lifetime total of $89,676. Blanco's last contribution was in September 2008.
7. NAME DELETED AND CONTRIBUTOR'S REQUEST, a lifetime contribution of $83,000. Last contributed in August 2008.
8. Thomas Metier, a lifetime contribution of $79,675. Metier last contributed in December 2008.
9. R. Rex Parris, a lifetime contribution of $73,825. Parris's year-to-date contribution for 2009 is $100.
10. NAME DELETED BY REQUEST OF DONOR, a lifetime contribution of $72,450. She has contributed $3,000 thus far this year.
Trine and Parris are the only board members on the top ten.
Next: 11-20. Preview: contributor 11 is Gerry Spence.
Facebook, The Jury And The Lunch Truck
I've been in trial in a murder case for the past few weeks. Because we are in Connecticut, picking the jury inevitably lasts longer than presentation of evidence. It took eight days to pick jurors: under state law, we question each potential juror outside the presence of the others. We needed 12 jurors and three alternatives. Frankly, eight days was a little quicker than expected. We've now completed five days of evidence; both sides will rest either Monday or Tuesday of this week.
Each juror was warned when selected not to make inquiries about the case. Conduct no research, do not talk about the case, keep your own counsel regarding the proceedings. The warnings are repeated daily.
Imagine my surprise this week, then, when we were told that there might have been some errant communication by a juror on Facebook.
We checked out the lead, and it was true. Juror Number Ten had made a comment about the proceeding's intensity. The comment was posted at 11:50 a.m. during the very first day of evidence. One of the juror's readers cautioned the juror: "Aren't you supposed to avoid talking about the case?"
We learned of this information on Wednesday night. On Thursday, we brought it to the judge's attention. Our concern was that this comment was but the tip of the iceberg. Perhaps the juror was engaged in some sort of private dialogue about the case.
The juror was summoned into the courtroom for brief questioning, but only after the state demanded that we disclose how we had learned this: we refused to give up the source of the information, and were not ordered to do so. The state then suggested that someone had made inappropriate contact with the juror. It is hard to know what to make of that claim. If someone posts information on a social networking site, the information is hardly private, is it?
It turns out the juror had not spoken about the merits of the case; at least the juror did not acknowledge doing so. Still, it was unnerving that this near-misconduct would occur in the face of repeated admonishments.
But what of the admonisher? The day before the Facebook revelation, the trial judge himself acknowledged that he had briefly described the case to the operator of a lunch truck that parks outside the courthouse. During this conversation, a juror came for coffee. What was said? Did the juror hear something that might affect the outcome of the case? What did the judge say?
The juror was questioned. He heard nothing. His attitude toward the case was unchanged by anything that took place outside the courtroom. The lunch truck operator was questioned. All he heard was a brief description of the case, and that the judge had referred to it as a "crazy" case. I questioned the judge, who did not recall referring to the case as crazy, but merely as unusual. The judge is a good man, and he expressed deep regret at having, in effect, violated his own order.
In the case of both the juror and the judge, I was unable to unearth any evidence that suggests that arguable misconduct had any impact on the jury. Thus, even if the court's orders were violated, I cannot prove prejudice. But I did learn enough last week to make me wonder whether we kid ourselves when we recite the mantra that a properly instructed jury is presumed to the follow the law. How much confidence can we have in that maxim when even the judge violates the rule?
Perhaps it is time to revisit sequestration of jurors. Sure, it would be expensive to house and feed jurors during trial. But it also adds great expense to hospital care to assure sterile operating rooms.
It seems naive to believe that folks aren't doing independent research on the issues they are asked to decide. When even the judge has difficulty following the rules, how much confidence can we have that jurors are doing any better?
Each juror was warned when selected not to make inquiries about the case. Conduct no research, do not talk about the case, keep your own counsel regarding the proceedings. The warnings are repeated daily.
Imagine my surprise this week, then, when we were told that there might have been some errant communication by a juror on Facebook.
We checked out the lead, and it was true. Juror Number Ten had made a comment about the proceeding's intensity. The comment was posted at 11:50 a.m. during the very first day of evidence. One of the juror's readers cautioned the juror: "Aren't you supposed to avoid talking about the case?"
We learned of this information on Wednesday night. On Thursday, we brought it to the judge's attention. Our concern was that this comment was but the tip of the iceberg. Perhaps the juror was engaged in some sort of private dialogue about the case.
The juror was summoned into the courtroom for brief questioning, but only after the state demanded that we disclose how we had learned this: we refused to give up the source of the information, and were not ordered to do so. The state then suggested that someone had made inappropriate contact with the juror. It is hard to know what to make of that claim. If someone posts information on a social networking site, the information is hardly private, is it?
It turns out the juror had not spoken about the merits of the case; at least the juror did not acknowledge doing so. Still, it was unnerving that this near-misconduct would occur in the face of repeated admonishments.
But what of the admonisher? The day before the Facebook revelation, the trial judge himself acknowledged that he had briefly described the case to the operator of a lunch truck that parks outside the courthouse. During this conversation, a juror came for coffee. What was said? Did the juror hear something that might affect the outcome of the case? What did the judge say?
The juror was questioned. He heard nothing. His attitude toward the case was unchanged by anything that took place outside the courtroom. The lunch truck operator was questioned. All he heard was a brief description of the case, and that the judge had referred to it as a "crazy" case. I questioned the judge, who did not recall referring to the case as crazy, but merely as unusual. The judge is a good man, and he expressed deep regret at having, in effect, violated his own order.
In the case of both the juror and the judge, I was unable to unearth any evidence that suggests that arguable misconduct had any impact on the jury. Thus, even if the court's orders were violated, I cannot prove prejudice. But I did learn enough last week to make me wonder whether we kid ourselves when we recite the mantra that a properly instructed jury is presumed to the follow the law. How much confidence can we have in that maxim when even the judge violates the rule?
Perhaps it is time to revisit sequestration of jurors. Sure, it would be expensive to house and feed jurors during trial. But it also adds great expense to hospital care to assure sterile operating rooms.
It seems naive to believe that folks aren't doing independent research on the issues they are asked to decide. When even the judge has difficulty following the rules, how much confidence can we have that jurors are doing any better?
Thursday, September 17, 2009
The Schizophrenic State
I sometimes have trouble explaining to clients that there really is no such thing as the State of Connecticut. The concept is an abstract noun, a legal fiction. The state is something akin to a necessary placekeeper in a vast equation. Like God, it is ever present and always absent.
But it feels different when you are standing in the well of a courtroom and a judge intones state versus you. All at once, this fiction acquires power. Clients then begin to wonder: If the state is prosecuting, does that mean the the prosecution is working hand in glove with the Department of Children and Families, the tax man, the Department of Motor Vehicles, the entire administrative apparatus of all things bearing the state's seal? After all, if the state exists, doesn’t it form intentions, have plans and otherwise coordinate its activities?
In fact, the answer is no. If the state has a personality, it is diseased. The state is a schizophrenic. Not only does the right hand not know what the left is doing. It is far worse. The state doesn’t even know how many hands it has. It is a cacaphonous beast, the stuff of myth or legend. Its no wonder we fear it.
This is nowhere so evident as in our courts, where the state struts, huffs and puffs in pursuit of something called justice. The state prosecutes crime, saying it seeks justice. And justice, we sometimes rhaphsodize, is eternal. Make that eternally scattered.
Consider the following: In the criminal courts, cases that are not resolved by way of a plea are typically placed on something called the “trial list.” Presiding judges in the various judicial districts throughout the state anxiously fondle their lists. Moving cases, closing them out by verdict or plea, that’s justice for the men and women monitoring the assembly line. So lawyers and clients are told they are on one-hour and two-hour notice. Cases can be called to trial at any time, except that they aren’t. Most cases molder on trial lists and go to seed several times over before trial every takes place.
It sometimes happen that one lawyer’s cases are called in to trial at the same time in different places. This is state schizophrenia at its best. Two presiding judges demand a lawyer’s presence. There is no centralized planning system, no coordination, not even much communication between courthouses on the matter of scheduling. When two judges want the same lawyer at the same time, something has to give. The presiding judges square off like gunslingers, posturing to see who has the biggest gavel.
I am caught between two judges right now, and my clients may well suffer. I am ordered to appear in one court soon for a manslaughter trial. I asked for a date certain long ago so that I would have time to prepare a difficult case. We try a lot of cases in my office. I can’t do business on a two-hour notice basis. I’ve got trials booked well into the spring of next year.
But that did not matter to another presiding judge. I am ordered to appear in a child sex case. The schedule of the child sex case conflicts with the manslaugher case. I alerted the second judge to my scheduling conflict, but the order to appear still entered.
Both judges have conferred and tried to iron out the obvious problem here: I cannot be in two places at once. But neither judge appears content with when I can be available. Discussions appear to have broken down. So I am now soon ordered to be in two places at once by the schizophrenic principalities in the judicial branch. Didn’t Dickens say that law was an ass?
So which trial do I prepare for? How do I explain this to clients? How is respect for a judiciary that cannot coordinate a statewide docket fostered amid this mess? It would not be hard to come up with a master plan to govern such conflicts were the state a well-ordered personality. But we know the state is a legal fiction. It acts through individuals with interests all their own. Sometimes those interests have little to do with justice. Sometimes the state is simply schizophrenic.
Reprinted courtesy of the Connecticut Law Tribune.
But it feels different when you are standing in the well of a courtroom and a judge intones state versus you. All at once, this fiction acquires power. Clients then begin to wonder: If the state is prosecuting, does that mean the the prosecution is working hand in glove with the Department of Children and Families, the tax man, the Department of Motor Vehicles, the entire administrative apparatus of all things bearing the state's seal? After all, if the state exists, doesn’t it form intentions, have plans and otherwise coordinate its activities?
In fact, the answer is no. If the state has a personality, it is diseased. The state is a schizophrenic. Not only does the right hand not know what the left is doing. It is far worse. The state doesn’t even know how many hands it has. It is a cacaphonous beast, the stuff of myth or legend. Its no wonder we fear it.
This is nowhere so evident as in our courts, where the state struts, huffs and puffs in pursuit of something called justice. The state prosecutes crime, saying it seeks justice. And justice, we sometimes rhaphsodize, is eternal. Make that eternally scattered.
Consider the following: In the criminal courts, cases that are not resolved by way of a plea are typically placed on something called the “trial list.” Presiding judges in the various judicial districts throughout the state anxiously fondle their lists. Moving cases, closing them out by verdict or plea, that’s justice for the men and women monitoring the assembly line. So lawyers and clients are told they are on one-hour and two-hour notice. Cases can be called to trial at any time, except that they aren’t. Most cases molder on trial lists and go to seed several times over before trial every takes place.
It sometimes happen that one lawyer’s cases are called in to trial at the same time in different places. This is state schizophrenia at its best. Two presiding judges demand a lawyer’s presence. There is no centralized planning system, no coordination, not even much communication between courthouses on the matter of scheduling. When two judges want the same lawyer at the same time, something has to give. The presiding judges square off like gunslingers, posturing to see who has the biggest gavel.
I am caught between two judges right now, and my clients may well suffer. I am ordered to appear in one court soon for a manslaughter trial. I asked for a date certain long ago so that I would have time to prepare a difficult case. We try a lot of cases in my office. I can’t do business on a two-hour notice basis. I’ve got trials booked well into the spring of next year.
But that did not matter to another presiding judge. I am ordered to appear in a child sex case. The schedule of the child sex case conflicts with the manslaugher case. I alerted the second judge to my scheduling conflict, but the order to appear still entered.
Both judges have conferred and tried to iron out the obvious problem here: I cannot be in two places at once. But neither judge appears content with when I can be available. Discussions appear to have broken down. So I am now soon ordered to be in two places at once by the schizophrenic principalities in the judicial branch. Didn’t Dickens say that law was an ass?
So which trial do I prepare for? How do I explain this to clients? How is respect for a judiciary that cannot coordinate a statewide docket fostered amid this mess? It would not be hard to come up with a master plan to govern such conflicts were the state a well-ordered personality. But we know the state is a legal fiction. It acts through individuals with interests all their own. Sometimes those interests have little to do with justice. Sometimes the state is simply schizophrenic.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, September 16, 2009
Home Court To The Prosecution
Lawyers who travel from one state to another impress me, but I can't help but wonder if they are effective in foreign courts. So much is nuance in a courtroom.
I keep making the rounds of the same old cities in my tiny state to try my cases: One month it might be Bridgeport, another it might be New Haven. This month, it happens to be Hartford.
But tonight, I feel a kinship with the traveling class. I am trying a murder case and I don't have the home court advantage. I am feeling it just now in the form of discretionary rulings that are, simply, bizarre.
The prosecution confided before trial that our case is the third or fourth trial she has had in front of Judge X this year. Both the prosecution and the judge share a common limiting disability in the form of a hearing loss. I wondered how these factors might play out at trial. Today I found out.
My client's defense is self-defense. Everything depends on whether the jury believes the state's witnesses. Today, a young woman took the stand for the state. She was a surviving witness, and she was a good witness for the state.
Sizing witnesses up is an art, not a science. Some witnesses can be confronted, others have to be courted. A young woman shooting victim needs courting, and that takes patience. But the key to a patient cross examination is listening. What to do when the trial court appears to have trouble hearing the witness? And what to do when the prosecution objects to questions merely because the questions, if answered, would hurt?
Today I was moving in for close scrutiny of the key issue in the case: What did the decedent do with her hands in the moments just before she was shot? The witness gave a version. I set about what doing what the Sixth Amendment permits: confronting the witness.
My intent was to cast doubt on the witness's testimony. She described pushing, but made it sound slow, calm and deliberate. The witness had been traumatized by what she saw and underwent. I suspect in her mind the events have been replayed a thousand times, and that, like the rest of us, she can replay trauma frame by frame, creating the illusion of timelessness in recollection of events that took but a moment to occur.
"Fair to say that you have replayed these events in your mind many times?" I asked.
"I try not to think about them," she said.
"That's not an answer to the question I asked," I said. "Fair to say that you have replayed these events in your mind many times?" I repeated.
"Objection," said the state. "Argumentative."
"Sustained," saith the court. So I quickly calculate that the objection must be directed to my comment about the witness's failure to answer my question.
"Fair to say that you have replayed these events in your minds many times?" I ask again, careful to make sure the substantive question is identical in form.
"Objection. Asked and answered," the state asserts.
"Sustained."
I ask for the jury to be excused and the series of questions replayed. I argue that the question was never answered. Rather it was evaded. The state is trying to block an effective cross examination with meaningless objections.
On replay, the court sustains the objection agin. But I press on. The court cannot deny my logic: The question was never answered. I press for some legal grounds for the objection other than that the state does not like where the question is leading the witness. "Argumentative," the state chimes. This is simply tripe, but the judge swallows it and announces it tastes like justice.
To punish me for pressing, the judge raises an issue all his own: I am accused of registering dissatisfaction with answers by facial gestures the jury can see. I am to stop doing so, the judge orders. Perhaps he'd prefer I place a bag over my head as I question reluctant witnesses.
This evidentiary error is the sort of thing appellate courts forgive by calling it harmless error, error that does not affect the outcome of a trial. How do the judges know this? And who can say that that an accumulation of such errors does not taint an entire trial?
Looking for reason, and finding none, I ask to adjourn for the day. Motion granted. We break 15 minutes early.
I keep reviewing this exchange and several others from trial today, wondering what happened and why. I see no logic and no law supporting some of what went on. As sleep flees it occurs to me I am in a foreign court. It is as if I have traveled to a foreign state to try a case among folks who know one another well and view my ways as foreign. I lack a home court advantage here: there are now bonds of trust between prosecutor and judge built by working together case after case. Discretion, when it is abused in this case, favors the familiar party, and in this case, that is the state.
I am unnerved by this and bitter. The law may not insist on a perfect trial, but it demands a fair one. The subtle bonds of familiarity between prosecutor and judge breed a contempt for the outsider. My client deserves better, and tomorrow I must find a way to deliver it. That will require more kindness and patience still, and tonight I am struggling to summon it.
I feel like Dorothy: I'm not in Connecticut anymore. But where, exactly, am? Where is the judge?
I keep making the rounds of the same old cities in my tiny state to try my cases: One month it might be Bridgeport, another it might be New Haven. This month, it happens to be Hartford.
But tonight, I feel a kinship with the traveling class. I am trying a murder case and I don't have the home court advantage. I am feeling it just now in the form of discretionary rulings that are, simply, bizarre.
The prosecution confided before trial that our case is the third or fourth trial she has had in front of Judge X this year. Both the prosecution and the judge share a common limiting disability in the form of a hearing loss. I wondered how these factors might play out at trial. Today I found out.
My client's defense is self-defense. Everything depends on whether the jury believes the state's witnesses. Today, a young woman took the stand for the state. She was a surviving witness, and she was a good witness for the state.
Sizing witnesses up is an art, not a science. Some witnesses can be confronted, others have to be courted. A young woman shooting victim needs courting, and that takes patience. But the key to a patient cross examination is listening. What to do when the trial court appears to have trouble hearing the witness? And what to do when the prosecution objects to questions merely because the questions, if answered, would hurt?
Today I was moving in for close scrutiny of the key issue in the case: What did the decedent do with her hands in the moments just before she was shot? The witness gave a version. I set about what doing what the Sixth Amendment permits: confronting the witness.
My intent was to cast doubt on the witness's testimony. She described pushing, but made it sound slow, calm and deliberate. The witness had been traumatized by what she saw and underwent. I suspect in her mind the events have been replayed a thousand times, and that, like the rest of us, she can replay trauma frame by frame, creating the illusion of timelessness in recollection of events that took but a moment to occur.
"Fair to say that you have replayed these events in your mind many times?" I asked.
"I try not to think about them," she said.
"That's not an answer to the question I asked," I said. "Fair to say that you have replayed these events in your mind many times?" I repeated.
"Objection," said the state. "Argumentative."
"Sustained," saith the court. So I quickly calculate that the objection must be directed to my comment about the witness's failure to answer my question.
"Fair to say that you have replayed these events in your minds many times?" I ask again, careful to make sure the substantive question is identical in form.
"Objection. Asked and answered," the state asserts.
"Sustained."
I ask for the jury to be excused and the series of questions replayed. I argue that the question was never answered. Rather it was evaded. The state is trying to block an effective cross examination with meaningless objections.
On replay, the court sustains the objection agin. But I press on. The court cannot deny my logic: The question was never answered. I press for some legal grounds for the objection other than that the state does not like where the question is leading the witness. "Argumentative," the state chimes. This is simply tripe, but the judge swallows it and announces it tastes like justice.
To punish me for pressing, the judge raises an issue all his own: I am accused of registering dissatisfaction with answers by facial gestures the jury can see. I am to stop doing so, the judge orders. Perhaps he'd prefer I place a bag over my head as I question reluctant witnesses.
This evidentiary error is the sort of thing appellate courts forgive by calling it harmless error, error that does not affect the outcome of a trial. How do the judges know this? And who can say that that an accumulation of such errors does not taint an entire trial?
Looking for reason, and finding none, I ask to adjourn for the day. Motion granted. We break 15 minutes early.
I keep reviewing this exchange and several others from trial today, wondering what happened and why. I see no logic and no law supporting some of what went on. As sleep flees it occurs to me I am in a foreign court. It is as if I have traveled to a foreign state to try a case among folks who know one another well and view my ways as foreign. I lack a home court advantage here: there are now bonds of trust between prosecutor and judge built by working together case after case. Discretion, when it is abused in this case, favors the familiar party, and in this case, that is the state.
I am unnerved by this and bitter. The law may not insist on a perfect trial, but it demands a fair one. The subtle bonds of familiarity between prosecutor and judge breed a contempt for the outsider. My client deserves better, and tomorrow I must find a way to deliver it. That will require more kindness and patience still, and tonight I am struggling to summon it.
I feel like Dorothy: I'm not in Connecticut anymore. But where, exactly, am? Where is the judge?
TLC: Campfires Aglow In Other Locales
Thanks to all the callers and writers who have expressed interest in meeting to discuss trials and lawyering in locales other than Wyoming or under TLC's embroidered thunderbolt. In the past few days, I've learned of interest throughout the country, and of incipient planning for group meetings in several states. Those of you who have written need to let me know whether I can pass your name along to those in regions near you. I would encourage you simply to be open about what you are doing. Secrecy breeds a sort of sinister power that serves no healthy purpose.
From the outset, I would like to make the nature of my interest in these doings clear.
What I learned at the Ranch is that there is power in groups. A great deal can be learned by shedding personal defenses in an atmosphere of trust. Other lawyers can enrich my ability to tell stories effectively and to spot issues of all sorts. This experience needn't be costly. This power is the possession of no group or man.
Whatever value TLC has for others, there are those, and I count myself among them, who find little value in group adoration of a common figure. The expense and intrigue necessary to make an institution out of charisma is self-defeating. Love it or leave it, I say of TLC. I left it years ago; a brief look back recently confirms it was the right choice. Plenty of others have had the same experience of the place. Those who love it are free to put their money and mouths to the service of their ideals and idol.
The pedagogic magic we experienced in Wyoming is not a gift given by one man and is not confined to a place: It is the function of joint willingness to explore new techniques and tactics in the highly structured practice of trial lawyering. Quite frankly, that magic is alive wherever lawyers are willing to press boundaries to the breaking point. Exploration of that boundary excites me; learning to play within lines drawn by others repels me. It really is that simple.
I am thrilled to learn that others are laying the ground work for meetings elsewhere among lawyers committed to both personal and professional growth, and I look forward to attending several of these meetings in the years to come. Recognizing my strengths and weaknesses, I intend no role in organizing these meetings. I am simply grateful for the invitations.
There is nothing heretical about walking off the Ranch. And remaining is a choice others may make if they find what they need there. As for me, I am shaking the dust from my sandals as I walk away from Thunderhead Ranch: I perceive an abandonment of critical reason there among folks who really ought to know better. But, as Handel majestically wrote, "all we like sheep have gone astray." I simply prefer to graze elsewhere.
From the outset, I would like to make the nature of my interest in these doings clear.
What I learned at the Ranch is that there is power in groups. A great deal can be learned by shedding personal defenses in an atmosphere of trust. Other lawyers can enrich my ability to tell stories effectively and to spot issues of all sorts. This experience needn't be costly. This power is the possession of no group or man.
Whatever value TLC has for others, there are those, and I count myself among them, who find little value in group adoration of a common figure. The expense and intrigue necessary to make an institution out of charisma is self-defeating. Love it or leave it, I say of TLC. I left it years ago; a brief look back recently confirms it was the right choice. Plenty of others have had the same experience of the place. Those who love it are free to put their money and mouths to the service of their ideals and idol.
The pedagogic magic we experienced in Wyoming is not a gift given by one man and is not confined to a place: It is the function of joint willingness to explore new techniques and tactics in the highly structured practice of trial lawyering. Quite frankly, that magic is alive wherever lawyers are willing to press boundaries to the breaking point. Exploration of that boundary excites me; learning to play within lines drawn by others repels me. It really is that simple.
I am thrilled to learn that others are laying the ground work for meetings elsewhere among lawyers committed to both personal and professional growth, and I look forward to attending several of these meetings in the years to come. Recognizing my strengths and weaknesses, I intend no role in organizing these meetings. I am simply grateful for the invitations.
There is nothing heretical about walking off the Ranch. And remaining is a choice others may make if they find what they need there. As for me, I am shaking the dust from my sandals as I walk away from Thunderhead Ranch: I perceive an abandonment of critical reason there among folks who really ought to know better. But, as Handel majestically wrote, "all we like sheep have gone astray." I simply prefer to graze elsewhere.
Monday, September 14, 2009
TLC: A Call To Expatriates
The comments I've received on the TLC pieces appearing here come in all shapes and sizes. I leave the vitriolic defense of the college to others. But there is a groundswell of longing in some of the notes and calls, a longing for days past, when the college was a laboratory for ideas. These were the days before Baron von Spence decided to create little monsters in his own image and set them singing loose on the world.
In "TLC: A More Nuanced View," one alum pretty well nailed what went wrong. The college went from an apparent commitment to hybrid vigor to mulitgenerational inbreeding. Method triumphed over creativity, and something was lost. Several comments by anonymous writers noted much the same thing. So have several callers. It turns out there is an expatriate community of sorts of there.
I recall the excitement I felt when I headed to the ranch in 1997. I read the brochure again and again. It was a who's who of lawyers I admired. I listened to each, hoping that some of their magic would rub off. By the time I walked off the ranch for keeps one fine morning in the summer of 2000, things had changed: Endless staff meetings; a drumbeat of conformity; the mad press of successive waves of students striving to become staff. And what was only inchoate at the time, but still ever so real: the press to raise more and more money. It wasn't good any more. I've played alone for the past nine years.
Apparently, there are still folks out there with a hunger to learn about trial. These folks, like me, appreciate Spence's genius and success at trial, but also realize that genius can't be taught. We each have flames of various sorts burning within. A retreat were all can gather and warm one another by a common fire created by these flames is what we sought. My sense is that more than a few of us left the ranch when creativity got stifled as the ranch became less a place of light than one of the darkness bred of Gerry's quest for immortality.
One old ranch hand to whom I spoke in recent weeks commented on how much he/she missed the ranch. Frankly, I miss it, too, even if my recent trip back had the feel of the set of the Night of the Living Dead.
What would happen if a dozen old souls gathered somewhere to reminisce and to talk about trial? We'd have no leader. Indeed, we'd have to find someone to organize a weekend away somewhere. There'd be no star present, no marquis presence demanding his due and tribute for coming. Sure, we'd need to bury the past, perhaps a psychodramatic funeral is in order. But on the other side of this death might be a rebirth of the creative energy and spirit we each sought and cherished before TLC became a product to be sold and mass produced.
I toss the idea out there for what it is worth. There are half a dozen folks I could imagine spending time with. I'd like to hear what they have been reading, what cases they have tried in the past decade, where they think the law is heading. We might learn something from one another and might also share a sense of camaraderie well away from the cult-like pressing of each year's need for new students to be validated by the principalities and powers of a place that is no longer home to any of us.
Any ideas out there?
Write to me privately if you care to: napatty1@aol.com
In "TLC: A More Nuanced View," one alum pretty well nailed what went wrong. The college went from an apparent commitment to hybrid vigor to mulitgenerational inbreeding. Method triumphed over creativity, and something was lost. Several comments by anonymous writers noted much the same thing. So have several callers. It turns out there is an expatriate community of sorts of there.
I recall the excitement I felt when I headed to the ranch in 1997. I read the brochure again and again. It was a who's who of lawyers I admired. I listened to each, hoping that some of their magic would rub off. By the time I walked off the ranch for keeps one fine morning in the summer of 2000, things had changed: Endless staff meetings; a drumbeat of conformity; the mad press of successive waves of students striving to become staff. And what was only inchoate at the time, but still ever so real: the press to raise more and more money. It wasn't good any more. I've played alone for the past nine years.
Apparently, there are still folks out there with a hunger to learn about trial. These folks, like me, appreciate Spence's genius and success at trial, but also realize that genius can't be taught. We each have flames of various sorts burning within. A retreat were all can gather and warm one another by a common fire created by these flames is what we sought. My sense is that more than a few of us left the ranch when creativity got stifled as the ranch became less a place of light than one of the darkness bred of Gerry's quest for immortality.
One old ranch hand to whom I spoke in recent weeks commented on how much he/she missed the ranch. Frankly, I miss it, too, even if my recent trip back had the feel of the set of the Night of the Living Dead.
What would happen if a dozen old souls gathered somewhere to reminisce and to talk about trial? We'd have no leader. Indeed, we'd have to find someone to organize a weekend away somewhere. There'd be no star present, no marquis presence demanding his due and tribute for coming. Sure, we'd need to bury the past, perhaps a psychodramatic funeral is in order. But on the other side of this death might be a rebirth of the creative energy and spirit we each sought and cherished before TLC became a product to be sold and mass produced.
I toss the idea out there for what it is worth. There are half a dozen folks I could imagine spending time with. I'd like to hear what they have been reading, what cases they have tried in the past decade, where they think the law is heading. We might learn something from one another and might also share a sense of camaraderie well away from the cult-like pressing of each year's need for new students to be validated by the principalities and powers of a place that is no longer home to any of us.
Any ideas out there?
Write to me privately if you care to: napatty1@aol.com
Sunday, September 13, 2009
TLC: A More Nuanced View
Quite a few folks have sent me emails privately commenting on the Trial Lawyers College pieces that have appeared here. What follows is one that was sent by someone who wishes to remain anonymous. The writer worries that if their identity were known, friends would shun the writer. That seems sad, but passions run high at Kamp Kool Aid.
In any case, I found these comments among the best I have received. I pass them along for your edification. For what it is worth, I agree wholeheartedly with this assessment. There is much of value going in Wyoming. But all that glitter might conceal more than a little fool's gold.
"Although I have been a supporter of the Trial Lawyers College, I have serious concerns about the school and its future.
"It almost seems that the Trial Lawyer’s College comes in two parts. Part one is a trial practice academy and probably the best that I have ever seen. Part two is much more difficult to describe, but it is almost the equivalent of a religious conversion, with the Gerry Spence method of trying cases being offered and accepted as the one true way. It is with part two that I have serious issues for therein lies hero worship, the destruction of individuality and the development of the so-called TLC cult.
"In the early years, this atmosphere was offset by diversity among the members of the educational staff. Indeed, the first faculties of the Trial Lawyer’s College consisted of a “who’s who” of some of the best trial lawyers in America. Each offered his or her unique strategies and insights into the art of trial practice.
"But by the tenth reunion of the college in 2004, the dynamics of TLC had changed. The faculty from the early years was pretty much gone, replaced by former students of the school itself. While these were all good lawyers in their own right, there now seemed to be something almost incestuous about the methodology. Let me say it this way: by 2004 the Trial Lawyer’s College did not seem to be a breeding ground for open dialogue and alternative theories of trial practice. It seemed to be more about teaching established doctrine.
"I have the brochure for the first session of the Trial Lawyers College from 1994. One section of the brochure poses the question: WHO WILL TEACH? The answer reads, “We teach each other at Trial Lawyer’s College. We learn and grow from being colleagues in the great adventure of learning by doing – participants and trial masters alike. You yourself will both teach and learn.”
"Another section of the brochure asks: WILL WE OFFER A DEGREE? And the answer reads, “No. A degree suggests that you have attended one of those institutions from which you have learned a good deal that you must unlearn if you are to become a successful trial lawyer for the people. You can tell your friends and clients you attended the Trial Lawyer’s College and, if you want, we will certify you as one of the very few who have attended our college.”
"What happened to those promises? And why does the college now conduct a graduation ceremony and offer the equivalent of a degree that can also be obtained by attending the requisite number of regional programs?
"The Trial Lawyer's College also seems to breed dependency. Whereas once there was only the month-long program at the ranch, there are now regional programs, graduate programs and advanced programs. The birds are never expected to leave the nest.
"I don’t think there is any better training ground for trial lawyers than the Trial Lawyer s College. But it is running on but a fraction of its potential. Oh what it could be."
In any case, I found these comments among the best I have received. I pass them along for your edification. For what it is worth, I agree wholeheartedly with this assessment. There is much of value going in Wyoming. But all that glitter might conceal more than a little fool's gold.
"Although I have been a supporter of the Trial Lawyers College, I have serious concerns about the school and its future.
"It almost seems that the Trial Lawyer’s College comes in two parts. Part one is a trial practice academy and probably the best that I have ever seen. Part two is much more difficult to describe, but it is almost the equivalent of a religious conversion, with the Gerry Spence method of trying cases being offered and accepted as the one true way. It is with part two that I have serious issues for therein lies hero worship, the destruction of individuality and the development of the so-called TLC cult.
"In the early years, this atmosphere was offset by diversity among the members of the educational staff. Indeed, the first faculties of the Trial Lawyer’s College consisted of a “who’s who” of some of the best trial lawyers in America. Each offered his or her unique strategies and insights into the art of trial practice.
"But by the tenth reunion of the college in 2004, the dynamics of TLC had changed. The faculty from the early years was pretty much gone, replaced by former students of the school itself. While these were all good lawyers in their own right, there now seemed to be something almost incestuous about the methodology. Let me say it this way: by 2004 the Trial Lawyer’s College did not seem to be a breeding ground for open dialogue and alternative theories of trial practice. It seemed to be more about teaching established doctrine.
"I have the brochure for the first session of the Trial Lawyers College from 1994. One section of the brochure poses the question: WHO WILL TEACH? The answer reads, “We teach each other at Trial Lawyer’s College. We learn and grow from being colleagues in the great adventure of learning by doing – participants and trial masters alike. You yourself will both teach and learn.”
"Another section of the brochure asks: WILL WE OFFER A DEGREE? And the answer reads, “No. A degree suggests that you have attended one of those institutions from which you have learned a good deal that you must unlearn if you are to become a successful trial lawyer for the people. You can tell your friends and clients you attended the Trial Lawyer’s College and, if you want, we will certify you as one of the very few who have attended our college.”
"What happened to those promises? And why does the college now conduct a graduation ceremony and offer the equivalent of a degree that can also be obtained by attending the requisite number of regional programs?
"The Trial Lawyer's College also seems to breed dependency. Whereas once there was only the month-long program at the ranch, there are now regional programs, graduate programs and advanced programs. The birds are never expected to leave the nest.
"I don’t think there is any better training ground for trial lawyers than the Trial Lawyer s College. But it is running on but a fraction of its potential. Oh what it could be."
Fairy Tales: The Bronze Ring
Trial lawyers are story tellers. The great ones are master story tellers. And the best stories, the stories that resonate deepest in the minds of ordinary folks, are folk tales, also known as fairy tales. I have a hunger to review the tales we tell our children to learn what I can about how better to communicate, and how best to recognize the simple archetypes that lay beneath the apparent diversity in the "fact patterns" that comprise my practice. Where best to find these stories now?
I had the pleasure not long ago to discover Andrew Lang's works. Lang was born in Scotland in 1844, and was trained in classics at Oxford. He is renowned for his so-called "colored fairy books," compilations of folk tales that were extremely popular in the United States at the time L.Frank Baum wrote about the Wizard of Oz. The first of these books is the Blue Fairy Book, first published in 1889. The first fairy tale in that book is "The Bronze Ring."
This simple story is scarcely 12 pages long, yet it contains everything. Enchantment itself opens the tale: "Once upon a time," we are told. And I am reminded at once of the mystery of origins: Romulus and Remus, Helen at Troy, Adam and Eve. The narrative impulse defines us and every story has a beginning, so we start in places we have never been and cannot go out of the necessity to sing of the day's events. Once upon a time is an invitation to dream. The words are irresistible.
A king's garden lays fallow. He wants it to blossom. A humble gardener is recruited. The gardener tends the Earth and it blossoms. The gardener's son and the king's daughter fall in love. Hope leaps across the great divide of class, status and power. The king wants his daughter to marry the son of his Prime Minister, but she loves the gardener's son. So the king sets a contest that only the Prime Minister's son should win: the two suitors will travel to a distant city and return. The winner will take the hand of the king's daughter.
Sorrow descends on the reader. Surely the king's son has every advantage. But didn't the story begin with words of magic: "Once upon a time ..."? We know these are hopeful words. If we but have the courage to persist and risk all, even our ordinary expectations, hope will be redeemed.
And so it is. A magic ring brings power. Fortunes are reversed. Bad men surface and triumph for a time. But innocence is redeemed in the end. The king's daughter and gardener's son marry; evil is vanquished and destroyed; hope is redeemed.
I read the story yesterday morning and all day and into the night I brooded. I was bidden to suspend disbelief in the implausible, and I responded by doing so. I read, and then re-read hungrily. What sustained me was not so much doubt as the inevitable outcome. The form of the story carried with it the guarantee of success. The hunger I experienced was the need to nourish hope in the face of realism's despair. Yes, the world is darkness and I believe that darkness claims us in the end. All die.
But this death seems less compelling, less real, less sustaining and alive than the need to believe. It would be a silent sort of death to stop hoping. I found myself revising Descartes: "I hope therefor I am." Or perhaps Shakespeare meant this when he reminded that we are such stuff as dreams are made of.
The reality of our days are made of such dismal straw. We struggle, we break, we rage, we err, and, in the end, we simple become undone by time and pass into nothing. But these hard meager truths inspire nothing so much as a passivity at once at odds with a stirring I cannot stop: the stirring that is me, and than must be expressed. Fairy tells give content to my hidden hopes.
I cannot claim to understand the deeper significance of "The Bronze Ring," but I know that each day in countless ways I reach for a ring of my own. The odds are against me. There is danger everywhere, and my hopes are foolish. But, oh, how I love to hope, and, oh, cynical fool that I am, how much of a hypocrite I am and willingly remain. This simple tale nourishes a flicker I want to transform into a flame. I believe this tale although I know it is folly to do so.
Perhaps that is the power of fairy tales: their ability to fire the illusions necessary to live fully.
There is magic in these tales, I tell you it is true. I will try to understand the magic better and share what I can discern here in an occasional series appearing under the banner: Fairy Tale Project.
Next: "Prince Hyancith and the Dear Little Princess"
I had the pleasure not long ago to discover Andrew Lang's works. Lang was born in Scotland in 1844, and was trained in classics at Oxford. He is renowned for his so-called "colored fairy books," compilations of folk tales that were extremely popular in the United States at the time L.Frank Baum wrote about the Wizard of Oz. The first of these books is the Blue Fairy Book, first published in 1889. The first fairy tale in that book is "The Bronze Ring."
This simple story is scarcely 12 pages long, yet it contains everything. Enchantment itself opens the tale: "Once upon a time," we are told. And I am reminded at once of the mystery of origins: Romulus and Remus, Helen at Troy, Adam and Eve. The narrative impulse defines us and every story has a beginning, so we start in places we have never been and cannot go out of the necessity to sing of the day's events. Once upon a time is an invitation to dream. The words are irresistible.
A king's garden lays fallow. He wants it to blossom. A humble gardener is recruited. The gardener tends the Earth and it blossoms. The gardener's son and the king's daughter fall in love. Hope leaps across the great divide of class, status and power. The king wants his daughter to marry the son of his Prime Minister, but she loves the gardener's son. So the king sets a contest that only the Prime Minister's son should win: the two suitors will travel to a distant city and return. The winner will take the hand of the king's daughter.
Sorrow descends on the reader. Surely the king's son has every advantage. But didn't the story begin with words of magic: "Once upon a time ..."? We know these are hopeful words. If we but have the courage to persist and risk all, even our ordinary expectations, hope will be redeemed.
And so it is. A magic ring brings power. Fortunes are reversed. Bad men surface and triumph for a time. But innocence is redeemed in the end. The king's daughter and gardener's son marry; evil is vanquished and destroyed; hope is redeemed.
I read the story yesterday morning and all day and into the night I brooded. I was bidden to suspend disbelief in the implausible, and I responded by doing so. I read, and then re-read hungrily. What sustained me was not so much doubt as the inevitable outcome. The form of the story carried with it the guarantee of success. The hunger I experienced was the need to nourish hope in the face of realism's despair. Yes, the world is darkness and I believe that darkness claims us in the end. All die.
But this death seems less compelling, less real, less sustaining and alive than the need to believe. It would be a silent sort of death to stop hoping. I found myself revising Descartes: "I hope therefor I am." Or perhaps Shakespeare meant this when he reminded that we are such stuff as dreams are made of.
The reality of our days are made of such dismal straw. We struggle, we break, we rage, we err, and, in the end, we simple become undone by time and pass into nothing. But these hard meager truths inspire nothing so much as a passivity at once at odds with a stirring I cannot stop: the stirring that is me, and than must be expressed. Fairy tells give content to my hidden hopes.
I cannot claim to understand the deeper significance of "The Bronze Ring," but I know that each day in countless ways I reach for a ring of my own. The odds are against me. There is danger everywhere, and my hopes are foolish. But, oh, how I love to hope, and, oh, cynical fool that I am, how much of a hypocrite I am and willingly remain. This simple tale nourishes a flicker I want to transform into a flame. I believe this tale although I know it is folly to do so.
Perhaps that is the power of fairy tales: their ability to fire the illusions necessary to live fully.
There is magic in these tales, I tell you it is true. I will try to understand the magic better and share what I can discern here in an occasional series appearing under the banner: Fairy Tale Project.
Next: "Prince Hyancith and the Dear Little Princess"
TLC: J.R. Clary, Writing For The College
I originally posted a splenetic piece that was great fun to write. It was too much fun to write, frankly; sort of like running a race against a one-legged man. It was critical of a lawyer whom I have never met and who apparently took a few shots at me. I've decided to pull the vitriole. What's the point?
I commend Clary's piece for all who want the perspective of TLC loyalists. http://jrclaryjr.blogspot.com/
J.R.'s a hero to tribe insiders. God bless him. He is a member of the junior board associated with the TLC, the so-called F-Warriors board. In two years, he'll get a seat on the big board as F-Warrior representative. I am told that he was recently offered the position of Executive Director but turned it down.
As for the rest of his silliness, res ipsa loquitur.
I commend Clary's piece for all who want the perspective of TLC loyalists. http://jrclaryjr.blogspot.com/
J.R.'s a hero to tribe insiders. God bless him. He is a member of the junior board associated with the TLC, the so-called F-Warriors board. In two years, he'll get a seat on the big board as F-Warrior representative. I am told that he was recently offered the position of Executive Director but turned it down.
As for the rest of his silliness, res ipsa loquitur.
In The Shadow Of Gothic Towers
When things go bump in the night at Yale University it becomes national news. I've never really understood why that is the case, but I have been sucked up in the maelstrom of Yale-related hype: More than a decade ago, I found myself on Good Morning America wondering why the prosecution of a young man for forging transcripts to gain admission to Yale was such a big deal.
This weekend a new whirlwind churns: A young Yale graduate student has turned up missing. Annie Le, 24, went to her laboratory to work on Tuesday at about 10 a.m. She has not been seen since. She was set to marry later in the week. But she is gone. Now it is national news. Why?
Yesterday local television stations broke into the broadcast of nationally televised college football games to report on the Le case. We learned that bloody clothing was found hidden behind ceiling tiles in the building in which she was last seen. Still later, we learned that law enforcement held a press conference. Ms. Le is still missing. Today the Internet is abuzz: The FBI is checking a Hartford landfill with scent-trained dogs. I suspect People magazine will have a big spread on the story in its next issue.
The loss of innocence is always compelling, and the Le disappearances sings of such loss. This demur young woman represents hope. She is young. She is beautiful. She was soon to be wed to her very own Prince Charming. And the young woman was brilliant, too, a doctoral candidate at one of the nation's leading universities.
But sorrow falls all trees in the forest, given enough time. Why the national angst over this beautiful young stranger?
I start evidence in a trial tomorrow in which my client is accused of murdering one young woman and shooting another young woman with the intent to kill her. They were in the man's kitchen. He claims self-defense. The kitchen was a tiny room, the two women and another woman attacked him. He shot to survive. Is this not as American a tragedy as the disappearance of Annie Le? Yet we will not fight off throngs of reporters to gain admission to the courthouse. The case may well go unreported in the press. You see, the victims and client are lower middle-class, and their dreams never carried them across the threshold of one of the nation's status palaces. They were lucky to pay each week's bills, living, as they did, off the sweat of their brows.
When ordinary people die it isn't news.
Yale's Gothic towers cast a long shadow not just over New Haven, but over the dreams and imagination of millions of Americans. We may be a land promising equality to all, but the secret desire to escape the chains of necessity common to all and to live a charmed life is given tangible shape at such places as Yale.
Is it any wonder that so many of our fairy tales involve king's castles, commoners becoming princes, and reversals of fortunes transforming commoners into virtuous nobles? Our fascination with the Le case arises not out of the quotidian details of yet another life undone. No, this time it is our dreams that have been assaulted. Ms. Le was a commoner en route to becoming a princess. Yet she's gone missing now from the king's palace, and this before she was to wed.
We are transfixed by the Le disappearance not out of genuine concern for her, but because her disappearance robs us of hope. Yale stands not so much as an institution of higher education in the minds of many Americans as it does a wondrous palace where miracles happen to ordinary people.
Only this time we are reminded that our fairy tales sometimes cannot withstand the horrific nightmares that define the lives of all too many Americans.
This weekend a new whirlwind churns: A young Yale graduate student has turned up missing. Annie Le, 24, went to her laboratory to work on Tuesday at about 10 a.m. She has not been seen since. She was set to marry later in the week. But she is gone. Now it is national news. Why?
Yesterday local television stations broke into the broadcast of nationally televised college football games to report on the Le case. We learned that bloody clothing was found hidden behind ceiling tiles in the building in which she was last seen. Still later, we learned that law enforcement held a press conference. Ms. Le is still missing. Today the Internet is abuzz: The FBI is checking a Hartford landfill with scent-trained dogs. I suspect People magazine will have a big spread on the story in its next issue.
The loss of innocence is always compelling, and the Le disappearances sings of such loss. This demur young woman represents hope. She is young. She is beautiful. She was soon to be wed to her very own Prince Charming. And the young woman was brilliant, too, a doctoral candidate at one of the nation's leading universities.
But sorrow falls all trees in the forest, given enough time. Why the national angst over this beautiful young stranger?
I start evidence in a trial tomorrow in which my client is accused of murdering one young woman and shooting another young woman with the intent to kill her. They were in the man's kitchen. He claims self-defense. The kitchen was a tiny room, the two women and another woman attacked him. He shot to survive. Is this not as American a tragedy as the disappearance of Annie Le? Yet we will not fight off throngs of reporters to gain admission to the courthouse. The case may well go unreported in the press. You see, the victims and client are lower middle-class, and their dreams never carried them across the threshold of one of the nation's status palaces. They were lucky to pay each week's bills, living, as they did, off the sweat of their brows.
When ordinary people die it isn't news.
Yale's Gothic towers cast a long shadow not just over New Haven, but over the dreams and imagination of millions of Americans. We may be a land promising equality to all, but the secret desire to escape the chains of necessity common to all and to live a charmed life is given tangible shape at such places as Yale.
Is it any wonder that so many of our fairy tales involve king's castles, commoners becoming princes, and reversals of fortunes transforming commoners into virtuous nobles? Our fascination with the Le case arises not out of the quotidian details of yet another life undone. No, this time it is our dreams that have been assaulted. Ms. Le was a commoner en route to becoming a princess. Yet she's gone missing now from the king's palace, and this before she was to wed.
We are transfixed by the Le disappearance not out of genuine concern for her, but because her disappearance robs us of hope. Yale stands not so much as an institution of higher education in the minds of many Americans as it does a wondrous palace where miracles happen to ordinary people.
Only this time we are reminded that our fairy tales sometimes cannot withstand the horrific nightmares that define the lives of all too many Americans.
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