I moan a lot and rarely speak well of the things I love, at least not in public. It is easier somehow to show a dark streak than it is to share what little light I possess. So I'll try something new here. Let me greet the new year by publicly giving thanks.
First and foremost: I have a wonderful and loving wife. She not only tolerates my moods and long hours, but she enjoys the time we spend together. I genuinely do not know why I deserve the good fortune to be loved so completely, but I am thankful.
Second, our three children are healthy, loving and complete human beings. Somehow, each still enjoys time with me. (They have all graduated college and flown the coop.) I watch them with joy and thank them for enriching my life.
Third, I am in good health and still able to shoulder the loads I have selected. My hair is turning gray, my eyes aren't what they were and I could be more fit, but I am blessed by a family with longevity and by good health.
Fourth, the folks I work with are wonderful. I tell each of them when hired that they are now a part of my family. I don't always get things right, and I sometimes make horrible mistakes -- that happens in a family. But I am fortunate to have the loyalty of good people in my life.
Fifth, I have readers! It's been ten years now since I started writing a weekly column on the law in the Connecticut Law Tribune. Mike Cernovich over at Crime and Federalism started me blogging in 2005. I have stopped and started both the column and blogging from time to time, but I enjoy verbal expression, and am thrilled you read.
Finally, I am grateful to the clients who trust me. I worry that I am far less equipped in terms of wisdom and patience than many of them need. Next year I promise to give my all.
Happy New Year
Thursday, December 31, 2009
Wednesday, December 30, 2009
Hey, Homeland Security: Fuck Off!
The security police have been busy this holiday season. Why just yesterday, Special Agent Robert Flaherty turned up on the doorstep of a blogger with what purported to be a subpoena and threatened the blogger with arrest if he did not reveal the source of information posted on the blogger's web site. What kind of knuckle-dragging Nazism is this? A rap at the door, waving a piece of paper, a threat of arrest? All this for publication of information?
Apparently yet another federal security directive was issued immediately after the failed Christmas Day airline attack in Detroit. The directive issued new standards on who to search and how to search them. Apparently two travel bloggers, Steven Frischling and Christopher Elliot, ran stories about the new directive. Neither had big brother's permission to do so.
Elliot, who runs a site called eliot.org posted the directive online. So did Frischling, who writes Flying with the Fish. Within days, the feds came knocking and demanding answers.
The directive instructs airlines and commercial carriers to disseminate the new security rules to "senior management personnel, ground security coordinators, and supervisory security personnel." Other airline security types are to be briefed on the new pat-down procedures, physical inspections and other security measures. But, the memo warns, dissemination to others requires the "prior approval of the Assistant Secretary for the Transportation Security Administration. Unauthorized dissemination of ... the information ... is prohibited 49 CFR 1520."
I looked up the regulations to see what authority a federal agent with subpoena envy had to wander around threatening to arrest people. Here's the sanction for violation of the administrative regulation: "§ 1520.17 Consequences of unauthorized disclosure of SSI. Violation of this part is grounds for a civil penalty and other enforcement or corrective action by DHS, and appropriate personnel actions for Federal employees. Corrective action may include issuance of an order requiring retrieval of SSI to remedy unauthorized disclosure or an order to cease future unauthorized disclosure."
Translated into plain English: there is no such authority.
This is a deeply troubling case. Special Agent Flaherty may or may not have had a subpoena. If he did, the recipient of the subpoena had a right to move to quash it, or, at a minimum, to be counseled on his legal remedies and responsibilities. Telling the recipient to either bend and spread or be arrested is a form of terror near and dear to totalitarian countries.
I'm told by a caller this evening with personal knowledge that one of the two bloggers gave the feds his computer in response to a knock on the door. The computer has since been returned, damaged. The other blogger may fight the feds on this one. I'm rooting for the fighter.
No, I don't want to get blown to smithereens on an airplane by some suicidal goofball on a mission. But I dread that about as much as being summoned by two-bit thugs earning government paychecks. The ends don't justify the means. Not if the rule of law means anything.
Apparently yet another federal security directive was issued immediately after the failed Christmas Day airline attack in Detroit. The directive issued new standards on who to search and how to search them. Apparently two travel bloggers, Steven Frischling and Christopher Elliot, ran stories about the new directive. Neither had big brother's permission to do so.
Elliot, who runs a site called eliot.org posted the directive online. So did Frischling, who writes Flying with the Fish. Within days, the feds came knocking and demanding answers.
The directive instructs airlines and commercial carriers to disseminate the new security rules to "senior management personnel, ground security coordinators, and supervisory security personnel." Other airline security types are to be briefed on the new pat-down procedures, physical inspections and other security measures. But, the memo warns, dissemination to others requires the "prior approval of the Assistant Secretary for the Transportation Security Administration. Unauthorized dissemination of ... the information ... is prohibited 49 CFR 1520."
I looked up the regulations to see what authority a federal agent with subpoena envy had to wander around threatening to arrest people. Here's the sanction for violation of the administrative regulation: "§ 1520.17 Consequences of unauthorized disclosure of SSI. Violation of this part is grounds for a civil penalty and other enforcement or corrective action by DHS, and appropriate personnel actions for Federal employees. Corrective action may include issuance of an order requiring retrieval of SSI to remedy unauthorized disclosure or an order to cease future unauthorized disclosure."
Translated into plain English: there is no such authority.
This is a deeply troubling case. Special Agent Flaherty may or may not have had a subpoena. If he did, the recipient of the subpoena had a right to move to quash it, or, at a minimum, to be counseled on his legal remedies and responsibilities. Telling the recipient to either bend and spread or be arrested is a form of terror near and dear to totalitarian countries.
I'm told by a caller this evening with personal knowledge that one of the two bloggers gave the feds his computer in response to a knock on the door. The computer has since been returned, damaged. The other blogger may fight the feds on this one. I'm rooting for the fighter.
No, I don't want to get blown to smithereens on an airplane by some suicidal goofball on a mission. But I dread that about as much as being summoned by two-bit thugs earning government paychecks. The ends don't justify the means. Not if the rule of law means anything.
Tuesday, December 29, 2009
Fiddling About the Super Bowl
If there is a God, and if that God has a wicked sense of humor, the following lyrics will be sung at this year's half-time performance at the Super Bowl.
"I'm your wicked Uncle Ernie
I'm glad you won't see or hear me
As I fiddle about ....
"Your mother left me here to mind you
Now I'm doing what I want to
As I fiddle about ....
"Down with the bedclothes
Up with the nightshirt....
"You won't shout as I fiddle about."
The lyrics come from a song named, appropriately enough, "Fiddle About." The song is part of a rock opera called Tommy, performed by The Who, who have, as you have no doubt heard by now, been invited to perform at the half-time show in this year's Super Bowl.
Only there is a hitch. Pete Townsend, guitarist and chief song writer for the Who, was required for a time to register as a sex offender in Great Britain. It turns out that he once accessed child pornography. And although he is now off the the British sex offender registry, Florida law -- the Super Bowl will be played in Miami this year -- requires that he present himself to law enforcement to register upon arrival in the Sunshine State.
Townsend was convicted of accessing a child porn site in 2003. He claims he was viewing material for research. From 2003 to 2008 he was registered as a sex offender in Britain. In Florida, he is still regarded as such.
Child Abuse Watch and Protect Our Children are raising Hell with the NFL, the state of Florida and the Immigration and Naturalization Service, and anyone else who will listen. How was a pervert permitted entry to the US? Shouldn't Florida take Townsend into custody immediately upon his entry into the state? How could the NFL so undermine family values?
This is all hysterical gibberish. Even if Townsend looked at some pictures, it does not make him a danger. The law prohibits viewing these pictures for two reasons: first, the fear that viewing them encourages a market for new images, thereby placing children at risk; and, second, the fear, unproven, that looking at pictures is but a prelude to greater harm. I suppose there will soon come a day in which acts of violence cannot be shown on the silver screen, either, for fear that will inspire others to copy the violence, therefore causing harm to others.
Pete Townsend viewed prohibited images. He was convicted of a crime. Deterrence was served. But he is not a moral leper, any more than are the thousands of other folks who now bear a scarlet SO on their foreheads. The NFL had the good sense to see through the hysteria. It invited a talented musician to play at the Super Bowl.
Tommy has sold millions of records and CDS. Fiddle About is known to most Americans over the age of 50. I'd love to see The Who perform that piece at the Super Bowl. It might just help pop the bubble of hysteria that suffocates each person convicted of a so-called sex crime in the United States. Performing the piece would certainly go a long way toward demonstrating our sexophrenia: when it comes to sex, we just can't decide whether to love it or hate it.
"I'm your wicked Uncle Ernie
I'm glad you won't see or hear me
As I fiddle about ....
"Your mother left me here to mind you
Now I'm doing what I want to
As I fiddle about ....
"Down with the bedclothes
Up with the nightshirt....
"You won't shout as I fiddle about."
The lyrics come from a song named, appropriately enough, "Fiddle About." The song is part of a rock opera called Tommy, performed by The Who, who have, as you have no doubt heard by now, been invited to perform at the half-time show in this year's Super Bowl.
Only there is a hitch. Pete Townsend, guitarist and chief song writer for the Who, was required for a time to register as a sex offender in Great Britain. It turns out that he once accessed child pornography. And although he is now off the the British sex offender registry, Florida law -- the Super Bowl will be played in Miami this year -- requires that he present himself to law enforcement to register upon arrival in the Sunshine State.
Townsend was convicted of accessing a child porn site in 2003. He claims he was viewing material for research. From 2003 to 2008 he was registered as a sex offender in Britain. In Florida, he is still regarded as such.
Child Abuse Watch and Protect Our Children are raising Hell with the NFL, the state of Florida and the Immigration and Naturalization Service, and anyone else who will listen. How was a pervert permitted entry to the US? Shouldn't Florida take Townsend into custody immediately upon his entry into the state? How could the NFL so undermine family values?
This is all hysterical gibberish. Even if Townsend looked at some pictures, it does not make him a danger. The law prohibits viewing these pictures for two reasons: first, the fear that viewing them encourages a market for new images, thereby placing children at risk; and, second, the fear, unproven, that looking at pictures is but a prelude to greater harm. I suppose there will soon come a day in which acts of violence cannot be shown on the silver screen, either, for fear that will inspire others to copy the violence, therefore causing harm to others.
Pete Townsend viewed prohibited images. He was convicted of a crime. Deterrence was served. But he is not a moral leper, any more than are the thousands of other folks who now bear a scarlet SO on their foreheads. The NFL had the good sense to see through the hysteria. It invited a talented musician to play at the Super Bowl.
Tommy has sold millions of records and CDS. Fiddle About is known to most Americans over the age of 50. I'd love to see The Who perform that piece at the Super Bowl. It might just help pop the bubble of hysteria that suffocates each person convicted of a so-called sex crime in the United States. Performing the piece would certainly go a long way toward demonstrating our sexophrenia: when it comes to sex, we just can't decide whether to love it or hate it.
Another Year In The Trenches
Come next week, I start another trial. This one is a capital felony, although the state is not seeking death. I suppose it's hard for the state to get up enough blood lust when there are no photographs of a mangled corpse to show the jury. In this case, a young woman simply disappeared many years ago. Comes now my client, accused of raping her, murdering her and then disposing of her body in some still hidden place. Happy New Year, all.
Summoning fight is usually not hard for me. I was born on the other side of the tracks and know firsthand how thin the line that separates me from the folks I represent. And for all my bold irreverence, I know a truth Christians know: All have sinned, and fallen well short of the glory of God.
But I am having a hard time summoning fight just now. I am tired, discouraged and filled with misgivings about the law and my role as a lawyer.
It all seemed simple a couple decades ago. The adversary system tested the truth. The state brought charges. Trial ensued. A jury decided not so much guilt or innocence as whether the proof was sufficient to convict. On the civil side, parties claiming injury could seek recompense. More strangers deciding destiny. And at the center of it all, a contemporary Odysseus, a wily lawyer of many strategies. Over the years, I thought, I will become stronger, wiser, better able to master the fates contesting in the well of the court.
I did not count on becoming a friend of sorrow. Or fatigue. Or seeing clients put guns to their heads to avoid the consequences of a judge's scorn. Or mothers kneeling at my feet holding my hands weeping in a crowded hallway and begging me to do something for their son. Or responding to emails telling me how hard it was to keep from swallowing a jar of pills to make the night go away. I never thought I'd see so much suffering. I thought I would be able to prevent it from happening or make it stop. I thought I would be a hero.
But no one is a hero to a client spending his life behind bars.
For many years, Satan in Milton's Paradise Lost was hero enough for me. "Better to reign in hell then serve in Heaven," he told his dispirited ranks as they descended to Hell. The proud defiance energized me. Yes, I thought, far better to be in Hell -- with all my friends. But I didn't realize that Hell was a real place, a place filled with broken people who pay their fees for counsel in lumps of sulphur.
Law students are taught about clients who bargain in the law's shadow. Reasonable people populate the textbooks on torts. The penal code strives to hold people accountable for the consequences of intentional acts that cause harm. But as the years go by these perspectives on the conflicts filling the courts ring hollow. These lucid fictions collapse against the ever present weight of the irrational. Law is not the rule of reason in human affairs; law is fear's fiction slapped against the gaping wounds of those incurably injured.
As the year ends, I find myself combing through the Diagnostic and Statistical Manual of Mental Disorders looking for context. All these broken people. How do they fit together? What do they expect of me? A stray line from Harold Lasswell's Psychopathology and Politics yields perspective: "The pathological mind, if one may indulge in a lame analogy, is like an automobile with its control lever stuck in one gear: the normal mind can shift."
And I realize at once that all these rumbling gears are active in me as well. Mine still shift, or so it seems. But as I read through the DSM-IV-TR, I know that nothing human is really foreign to me, or to any lawyer. And hence the sorrow.
I've wondered, sometimes, about whether a state's penal code can be reorganized under headings corresponding to the Seven Deadly Sins. I tried to sketch it out the other night. Associating lust and sex crimes seemed fairly easy. But isn't anger also at the core of many sex crimes? And what to do with sloth or gluttony? The human spirit easily bends and becomes frozen into so many caricatures.
I inspired uncommon hatred among some in the past year. I know this because I write about my trials, and the families and friends of complaining witnesses reach out to tell me all about my many failings as a human being and as a lawyer. As the year ends, and I put the demons these folks unleashed to bed, I realize that my sin is pride. I strut, I preen, I crow, I conjure what magic I can in the effort to win each trial I undertake. And on the occasions I do not win, I am crushed. Is it any wonder that I am so easily ridiculed as vain? I own this, sinner that I am, and I know there is little hope of redemption for the likes of me, at least none that I can foresee.
So another year begins, and with it another round of bitter trials. More clients who want miracles, and me, just proud enough even on a bad day to think I can turn any sow's ear into a silken purse. But I am no longer young, and no longer confident enough to think that anything is possible. I have seen good men handcuffed and taken into dark places where they will now die because I could not prevent harm from befalling them.
I need courage, just now, but I am so much more comfortable counting sins than courting virtue. Where to turn for courage? Where when I am spent and weariness feels more like a companion than a visitor?
Somehow even now, Milton's Satan summons. But is it enough? Is it enough to say with Satan: "So farewell hope, and with hope farewell fear,/ Farewell remorse: all good to me is lost"? Frankly, it is not. But as the new year dawns and old wounds continue to fester, I have little choice.
When the law beckoned, I assumed it would mean a life of toil. But somehow I never really foresaw how hard the work would be. I see it now. And at once my knees tremble, and I know something I have not felt so powerfully in a long time: fear. A new year dawns and I am still bruised by the year just passed. Another year dawns and uncommon cunning is required yet again, and faith, too; yet I lack faith.
The law is hard; I must, somehow, become harder than sorrow.
Summoning fight is usually not hard for me. I was born on the other side of the tracks and know firsthand how thin the line that separates me from the folks I represent. And for all my bold irreverence, I know a truth Christians know: All have sinned, and fallen well short of the glory of God.
But I am having a hard time summoning fight just now. I am tired, discouraged and filled with misgivings about the law and my role as a lawyer.
It all seemed simple a couple decades ago. The adversary system tested the truth. The state brought charges. Trial ensued. A jury decided not so much guilt or innocence as whether the proof was sufficient to convict. On the civil side, parties claiming injury could seek recompense. More strangers deciding destiny. And at the center of it all, a contemporary Odysseus, a wily lawyer of many strategies. Over the years, I thought, I will become stronger, wiser, better able to master the fates contesting in the well of the court.
I did not count on becoming a friend of sorrow. Or fatigue. Or seeing clients put guns to their heads to avoid the consequences of a judge's scorn. Or mothers kneeling at my feet holding my hands weeping in a crowded hallway and begging me to do something for their son. Or responding to emails telling me how hard it was to keep from swallowing a jar of pills to make the night go away. I never thought I'd see so much suffering. I thought I would be able to prevent it from happening or make it stop. I thought I would be a hero.
But no one is a hero to a client spending his life behind bars.
For many years, Satan in Milton's Paradise Lost was hero enough for me. "Better to reign in hell then serve in Heaven," he told his dispirited ranks as they descended to Hell. The proud defiance energized me. Yes, I thought, far better to be in Hell -- with all my friends. But I didn't realize that Hell was a real place, a place filled with broken people who pay their fees for counsel in lumps of sulphur.
Law students are taught about clients who bargain in the law's shadow. Reasonable people populate the textbooks on torts. The penal code strives to hold people accountable for the consequences of intentional acts that cause harm. But as the years go by these perspectives on the conflicts filling the courts ring hollow. These lucid fictions collapse against the ever present weight of the irrational. Law is not the rule of reason in human affairs; law is fear's fiction slapped against the gaping wounds of those incurably injured.
As the year ends, I find myself combing through the Diagnostic and Statistical Manual of Mental Disorders looking for context. All these broken people. How do they fit together? What do they expect of me? A stray line from Harold Lasswell's Psychopathology and Politics yields perspective: "The pathological mind, if one may indulge in a lame analogy, is like an automobile with its control lever stuck in one gear: the normal mind can shift."
And I realize at once that all these rumbling gears are active in me as well. Mine still shift, or so it seems. But as I read through the DSM-IV-TR, I know that nothing human is really foreign to me, or to any lawyer. And hence the sorrow.
I've wondered, sometimes, about whether a state's penal code can be reorganized under headings corresponding to the Seven Deadly Sins. I tried to sketch it out the other night. Associating lust and sex crimes seemed fairly easy. But isn't anger also at the core of many sex crimes? And what to do with sloth or gluttony? The human spirit easily bends and becomes frozen into so many caricatures.
I inspired uncommon hatred among some in the past year. I know this because I write about my trials, and the families and friends of complaining witnesses reach out to tell me all about my many failings as a human being and as a lawyer. As the year ends, and I put the demons these folks unleashed to bed, I realize that my sin is pride. I strut, I preen, I crow, I conjure what magic I can in the effort to win each trial I undertake. And on the occasions I do not win, I am crushed. Is it any wonder that I am so easily ridiculed as vain? I own this, sinner that I am, and I know there is little hope of redemption for the likes of me, at least none that I can foresee.
So another year begins, and with it another round of bitter trials. More clients who want miracles, and me, just proud enough even on a bad day to think I can turn any sow's ear into a silken purse. But I am no longer young, and no longer confident enough to think that anything is possible. I have seen good men handcuffed and taken into dark places where they will now die because I could not prevent harm from befalling them.
I need courage, just now, but I am so much more comfortable counting sins than courting virtue. Where to turn for courage? Where when I am spent and weariness feels more like a companion than a visitor?
Somehow even now, Milton's Satan summons. But is it enough? Is it enough to say with Satan: "So farewell hope, and with hope farewell fear,/ Farewell remorse: all good to me is lost"? Frankly, it is not. But as the new year dawns and old wounds continue to fester, I have little choice.
When the law beckoned, I assumed it would mean a life of toil. But somehow I never really foresaw how hard the work would be. I see it now. And at once my knees tremble, and I know something I have not felt so powerfully in a long time: fear. A new year dawns and I am still bruised by the year just passed. Another year dawns and uncommon cunning is required yet again, and faith, too; yet I lack faith.
The law is hard; I must, somehow, become harder than sorrow.
Monday, December 28, 2009
Night of the Living Dead, Maryland Style...
The murder of 11-year-old Sarah Haley Foxwell in Maryland is already the stuff of legend. Two days before Christmas, the child turned up missing. Her aunt, with whom she lived, had briefly dated a sex offender. As the frantic residents of Salisbury searched for her, panic spread: 3,000 people combed through neighboring fields and forests. She was found dead on Christmas day.
A report in the Baltimore Sun two days after the murder was almost as disturbing as the murder itself. Outraged citizens demand immediate action; exhausted law men forego sleep as they stalk every lead. Lawmakers are quick to demand new laws. No one seems willing to stop to think about the obvious: rage, grief and fear are not the stuff of sound public policy.
Ms. Foxwell is believed to have been murdered by Thomas James Leggs Jr. But as of the day the Sun wrote, Leggs had not been charged with the killing. He was being held without bail. Leggs was convicted of third degree sexual assault in 1998 and, according to the Sun, was designated a "high risk" sex offender for the "rape of a minor" in 2001.
His record is troubling, but it is hard to know just how bad it is. Legg is now 30; in 2001, he would have been 21. The "rape" of a minor may well have been sexual contact with a child too young as a matter of law to give consent. The Sun simply doesn't give any report about the man's sexual history beyond mere incantation.
Legg's reord is enough to for the likes of Jerry Norton, who heads Citizens for Jessica's Law in Maryland. Norton was pestering lawmakers by telephone on Saturday.
"My heart goes out to the friends and family of this 11-year-old child," he said. "We need to make it clear to citizens of Maryland that we are not going to let these pedophiles molest our children with just a slap on wrist. We're tired of these watered-down sentences -- they come out and do it again."
"What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."
Maryland lawmakers are already behaving as though they have won a libidinal lottery ticket. State Sen. Nancy Jacobs (R-Harford) is screaming for blood. She intends to "go ... as far we can" in tough new laws to crack down on sex offenders. Jacobs co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. The legistation was named for another child martyr, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender. On the legislative docket: abandoning parole of sex offenders, limitations on plea bargaining and permitting wiretapping of suspected sex offenders.
This is not responsible lawmaking. It is pandering to the lowest common denominator in a community torn asunder by grief. In the wake of the great pain and grief caused by the murder of young Miss Foxwell, it is understandable that folks want to rush to do something, anything, to make sure such a crime never happens again. But mass hysteria isn't a reasoned response to evil. Maryland lawmakers resemble nothing so much today as cast members of the old horror film, "Night of the Living Dead." They stumbled along in a twilight of grief, blindly lashing out at phantoms.
Every time the murder of a child becomes national news, we get harsh new laws. There's Megan's Law, Jessica's Law, the Adam Walsh Act, and still Sarah Haley Foxwell was murdered. When will lawmakers learn that throwing printer's ink in the form of new laws at recent grief merely yields a different sort of grief, one visited upon countless others dragged within in the hideous net of overbroad laws passed by folks behaving as though they were at a wake, and not attending to the serious business of passing law.
More and tougher laws about sex offenders will not prevent the abuse of children. Another tragic death is always a heart beat away. The grim logic of those who think we can legislate our way to safety forget the obvious truth that laws are only as good as the people who make them. When hysterics make the rules, everyone gets hurt.
Mourn Sarah Haley Foxwell. Weep over the loss of her life and our lost innocence. But before we pass another law on sex offenders won't someone please stop to think about whether the laws already on the books are doing more harm than good.
A report in the Baltimore Sun two days after the murder was almost as disturbing as the murder itself. Outraged citizens demand immediate action; exhausted law men forego sleep as they stalk every lead. Lawmakers are quick to demand new laws. No one seems willing to stop to think about the obvious: rage, grief and fear are not the stuff of sound public policy.
Ms. Foxwell is believed to have been murdered by Thomas James Leggs Jr. But as of the day the Sun wrote, Leggs had not been charged with the killing. He was being held without bail. Leggs was convicted of third degree sexual assault in 1998 and, according to the Sun, was designated a "high risk" sex offender for the "rape of a minor" in 2001.
His record is troubling, but it is hard to know just how bad it is. Legg is now 30; in 2001, he would have been 21. The "rape" of a minor may well have been sexual contact with a child too young as a matter of law to give consent. The Sun simply doesn't give any report about the man's sexual history beyond mere incantation.
Legg's reord is enough to for the likes of Jerry Norton, who heads Citizens for Jessica's Law in Maryland. Norton was pestering lawmakers by telephone on Saturday.
"My heart goes out to the friends and family of this 11-year-old child," he said. "We need to make it clear to citizens of Maryland that we are not going to let these pedophiles molest our children with just a slap on wrist. We're tired of these watered-down sentences -- they come out and do it again."
"What . . . is he doing back out on the street, and what is he doing having contact with this child?" he said. "I think the problem is with these guys going through a revolving door."
Maryland lawmakers are already behaving as though they have won a libidinal lottery ticket. State Sen. Nancy Jacobs (R-Harford) is screaming for blood. She intends to "go ... as far we can" in tough new laws to crack down on sex offenders. Jacobs co-sponsored Maryland's version of Jessica's Law, a bill passed in 2006 that set sentencing guidelines for child sex offenders. The legistation was named for another child martyr, a 9-year-old Florida girl who was kidnapped, sexually abused and killed by a convicted child sex offender. On the legislative docket: abandoning parole of sex offenders, limitations on plea bargaining and permitting wiretapping of suspected sex offenders.
This is not responsible lawmaking. It is pandering to the lowest common denominator in a community torn asunder by grief. In the wake of the great pain and grief caused by the murder of young Miss Foxwell, it is understandable that folks want to rush to do something, anything, to make sure such a crime never happens again. But mass hysteria isn't a reasoned response to evil. Maryland lawmakers resemble nothing so much today as cast members of the old horror film, "Night of the Living Dead." They stumbled along in a twilight of grief, blindly lashing out at phantoms.
Every time the murder of a child becomes national news, we get harsh new laws. There's Megan's Law, Jessica's Law, the Adam Walsh Act, and still Sarah Haley Foxwell was murdered. When will lawmakers learn that throwing printer's ink in the form of new laws at recent grief merely yields a different sort of grief, one visited upon countless others dragged within in the hideous net of overbroad laws passed by folks behaving as though they were at a wake, and not attending to the serious business of passing law.
More and tougher laws about sex offenders will not prevent the abuse of children. Another tragic death is always a heart beat away. The grim logic of those who think we can legislate our way to safety forget the obvious truth that laws are only as good as the people who make them. When hysterics make the rules, everyone gets hurt.
Mourn Sarah Haley Foxwell. Weep over the loss of her life and our lost innocence. But before we pass another law on sex offenders won't someone please stop to think about whether the laws already on the books are doing more harm than good.
Thursday, December 24, 2009
When Even Your Adversaries Agree ...
A week or so ago, I wrote about a child sex case I had recently tried and lost. The case was terrifying. A girl claimed her uncle had fondled her when she was between the ages of 7 and 10. She first made these allegations when she was a teenager. She testified against my client when she was seventeen.
My client denied the conduct, and there was no corroboration of the girl's claims. Indeed, by the time the case went to trial, my client was unable even to recall many of the events surrounding the allegations. Small wonder. Who among us recalls all our contacts with nieces and nephews? Is it time to carry a webcam to record each and every moment we spend with a young person so as to have proof later in life that we never erred?
At trial, the state spent hours corroborating the inessential. Yes, Virginia, there was a living room, and a bed room, and a house with doors and windows, and family gatherings. The state did a masterful job of setting the scene for the allegations.
But bringing such claims a decade after the fact is simply wrong. And so is relying upon such evidentiary swill as "expert" testimony on so-called delayed disclosure and incremental disclosure of childhood memories. There is something wishy-washy about the testimony of an expert that explains away all inconsistencies. Indeed, a theory capable of explaining everything typically explains nothing much at all.
I wrote about that here and then moved on to another case.
Last week I was in several courthouses around the state meeting with prosecutors to discuss pending criminal cases. Two of them mentioned they had read my recent column, and, making sure that no one was looking, they told me they agreed. They are reluctant to use the so-called experts in these cases and they find fundamentally odd and unfair treating child sex cases as some sort of special phenomenon requiring new and relaxed rules of proof.
Neither prosecutor worked with the other. Both were in separate cities. And in neither instance did I bring up the topic, the loss and its consequences for my client are painful.
I find it hopeful that prosecutors harbor doubts about the virtual suspension of statutes of limitations in allegations of child sex. Hopeful, too, is the recognition that the recent tendency to credit virtually any such claim works a disservice to defendants, many of whom are literally blindsided a decade or so after an alleged event and have no idea what the complaining witness is talking about.
Child sex abuse is a serious issue, to be sure. No one denies that it occurs. But the latest bandwagon resembles the hysteria in Salem in the 1600s when it took but little to be accused, convicted and killed for being a witch. Too often, I suspect, child sex abuse claims are the tip of a larger iceberg. Submerged just beneath the surface are chaotic familial structures begging for release. That these forces erupt at the expense of often innocence defendants is a national tragedy we will be talking about in decades to come.
There is not a remedy for every wrong. Equity teaches that. Somehow trying to make the world safe for the fantasies of children has become a waking nightmare for many adults. I am glad that even adversaries in the courts are beginning to see this.
My client denied the conduct, and there was no corroboration of the girl's claims. Indeed, by the time the case went to trial, my client was unable even to recall many of the events surrounding the allegations. Small wonder. Who among us recalls all our contacts with nieces and nephews? Is it time to carry a webcam to record each and every moment we spend with a young person so as to have proof later in life that we never erred?
At trial, the state spent hours corroborating the inessential. Yes, Virginia, there was a living room, and a bed room, and a house with doors and windows, and family gatherings. The state did a masterful job of setting the scene for the allegations.
But bringing such claims a decade after the fact is simply wrong. And so is relying upon such evidentiary swill as "expert" testimony on so-called delayed disclosure and incremental disclosure of childhood memories. There is something wishy-washy about the testimony of an expert that explains away all inconsistencies. Indeed, a theory capable of explaining everything typically explains nothing much at all.
I wrote about that here and then moved on to another case.
Last week I was in several courthouses around the state meeting with prosecutors to discuss pending criminal cases. Two of them mentioned they had read my recent column, and, making sure that no one was looking, they told me they agreed. They are reluctant to use the so-called experts in these cases and they find fundamentally odd and unfair treating child sex cases as some sort of special phenomenon requiring new and relaxed rules of proof.
Neither prosecutor worked with the other. Both were in separate cities. And in neither instance did I bring up the topic, the loss and its consequences for my client are painful.
I find it hopeful that prosecutors harbor doubts about the virtual suspension of statutes of limitations in allegations of child sex. Hopeful, too, is the recognition that the recent tendency to credit virtually any such claim works a disservice to defendants, many of whom are literally blindsided a decade or so after an alleged event and have no idea what the complaining witness is talking about.
Child sex abuse is a serious issue, to be sure. No one denies that it occurs. But the latest bandwagon resembles the hysteria in Salem in the 1600s when it took but little to be accused, convicted and killed for being a witch. Too often, I suspect, child sex abuse claims are the tip of a larger iceberg. Submerged just beneath the surface are chaotic familial structures begging for release. That these forces erupt at the expense of often innocence defendants is a national tragedy we will be talking about in decades to come.
There is not a remedy for every wrong. Equity teaches that. Somehow trying to make the world safe for the fantasies of children has become a waking nightmare for many adults. I am glad that even adversaries in the courts are beginning to see this.
Wednesday, December 23, 2009
Saying Farewell To A Cherished Friend
The morning has a depressive and uncertain sort of feel to it. As the day begins, all of my parts are in order. But I know that when night falls, the surgery will be over. Some significant part of me will be removed. Come tomorrow I will make do with what remains. I am calm. But I am also frightened. Responding to this crisis is not a choice I want to make.
And so I prepare to say good bye to a paralegal who has been with me for the better part of 17 years. It is inconceivable to me that she will leave. Yet I know it is true. I will have to learn to function as a lawyer without the daily friendship and support of Gail Stemborski.
When she came to see me the other day, I could tell something was amiss. Her voice had dropped an octave, and she looked sad. We've been through a lot together. I've attended funerals and weddings for her family members. I've had to ask her to watch my back when family crises of my own made it unclear to me how I would get from one day to the next. What crisis looms? I wondered.
"I have bad news," she said.
I swear my heart stopped. When Gail speaks, I listen. Despite the hectic rush of trial preparation and screaming phones, I closed the door to my office.
"What's wrong?"
"I've decided it's time to retire." She was nearly in tears.
My first reaction was one of joy, and I told her so. She is a good woman. Her children are grown and gone. She and her husband have their health. There is twilight left in the years. They should take the time to enjoy one another's company and the setting Sun. There are only so many days before blind fury crushes us all. Seize the day.
But then it hit me, hard. She is leaving me. I want what is best for her, but I cannot let go of my own needs. She has been so constant, so faithful, so dependable that I cannot conceive of an office without her.
Trial lawyers cast big shadows. We enjoy being stars in dramas involving other people's lives. But not one of us can stand alone. I cannot recall the number of times Gail has organized a file for trial. After all the years, she can do it just so without being told: a file for each witness, statements organized chronologically. And she somehow manages to keep track of all the odds and ends I seem to misplace daily. I imagine she has a repetitive nightmare consisting of my starting each sentence by saying: "Gail, have you seen...."
"You know," she told me as we sat staring into a chasm, "in all the years we've been together, we've never spoken a cross word to one another. I have always loved coming to work." And I have loved having her in my life.
I am tempestuous and difficult. Somehow, Gail saw through that all and knew how to get out of the way of my ineptitude. In all our years, I cannot recall ever being cross at her. She simply knew how to make me feel comfortable, and had the uncanny gift of putting my chaos into perspective. Did I take all that for granted?
I do not know what she saw in me. And I do not know what I did to deserve such a faithful friend.
The lucky among us have a Gail in the office minding the store while we are out grabbing headlines and glory. I think we sometimes forget that we are really only as strong as the links forged by the arms of those who love us and support us.
I know I feel weakened today. I am heading out to court as soon as I finish this column. Gail is here now. But what if I don't make it back before she leaves? What if I cannot say goodbye to a colleague I have come to love and cherish?
The fact is that I do not want to say goodbye. I want her to remain forever. And so she shall, in some silent place. But the silence will be nurtured today with tears. So let me say here what I cannot summon the courage to say face to face: "Thank you, Gail, and fare well in the chapter that begins today. I will miss you."
Reprinted courtesy of the Connecticut Law Tribune.
And so I prepare to say good bye to a paralegal who has been with me for the better part of 17 years. It is inconceivable to me that she will leave. Yet I know it is true. I will have to learn to function as a lawyer without the daily friendship and support of Gail Stemborski.
When she came to see me the other day, I could tell something was amiss. Her voice had dropped an octave, and she looked sad. We've been through a lot together. I've attended funerals and weddings for her family members. I've had to ask her to watch my back when family crises of my own made it unclear to me how I would get from one day to the next. What crisis looms? I wondered.
"I have bad news," she said.
I swear my heart stopped. When Gail speaks, I listen. Despite the hectic rush of trial preparation and screaming phones, I closed the door to my office.
"What's wrong?"
"I've decided it's time to retire." She was nearly in tears.
My first reaction was one of joy, and I told her so. She is a good woman. Her children are grown and gone. She and her husband have their health. There is twilight left in the years. They should take the time to enjoy one another's company and the setting Sun. There are only so many days before blind fury crushes us all. Seize the day.
But then it hit me, hard. She is leaving me. I want what is best for her, but I cannot let go of my own needs. She has been so constant, so faithful, so dependable that I cannot conceive of an office without her.
Trial lawyers cast big shadows. We enjoy being stars in dramas involving other people's lives. But not one of us can stand alone. I cannot recall the number of times Gail has organized a file for trial. After all the years, she can do it just so without being told: a file for each witness, statements organized chronologically. And she somehow manages to keep track of all the odds and ends I seem to misplace daily. I imagine she has a repetitive nightmare consisting of my starting each sentence by saying: "Gail, have you seen...."
"You know," she told me as we sat staring into a chasm, "in all the years we've been together, we've never spoken a cross word to one another. I have always loved coming to work." And I have loved having her in my life.
I am tempestuous and difficult. Somehow, Gail saw through that all and knew how to get out of the way of my ineptitude. In all our years, I cannot recall ever being cross at her. She simply knew how to make me feel comfortable, and had the uncanny gift of putting my chaos into perspective. Did I take all that for granted?
I do not know what she saw in me. And I do not know what I did to deserve such a faithful friend.
The lucky among us have a Gail in the office minding the store while we are out grabbing headlines and glory. I think we sometimes forget that we are really only as strong as the links forged by the arms of those who love us and support us.
I know I feel weakened today. I am heading out to court as soon as I finish this column. Gail is here now. But what if I don't make it back before she leaves? What if I cannot say goodbye to a colleague I have come to love and cherish?
The fact is that I do not want to say goodbye. I want her to remain forever. And so she shall, in some silent place. But the silence will be nurtured today with tears. So let me say here what I cannot summon the courage to say face to face: "Thank you, Gail, and fare well in the chapter that begins today. I will miss you."
Reprinted courtesy of the Connecticut Law Tribune.
Monday, December 21, 2009
Was Monroe v. Pape Wrongly Decided?
The New Year is a time to ask big questions, to put nagging issues and concerns into perspective, and to chart a course which, perhaps, will make the world a more elegant place in which to live and work. So I ask this question on the cusp of 2010. It is a question that has been on my mind for the past few years. I simply have not had the courage to ask it.
Was Monroe v. Pape wrongly decided?
It sure feels as though most judges think it was. But none of them seem willing to think things through to their logical conclusion. So let me offer a helping hand.
The 1961 Supreme Court decision is the lodestone of modern civil rights practice. It clearly established that individuals can bring a federal cause of action against state actors for abusing a person's constitutional rights. This single decision breathed new life into the Ku Klux Klan Act, codified at 42 U.S.C. Section 1983. And for several decades, litigation under the act was robust. During the past decade, however, the courts have done all they could to trim the sails of civil rights litigants. All, that is, except the one thing remaining: overturn Monroe v. Pape.
Here are the facts of the case: Chicago police officers investigating a murder burst into the Monroe home in Chicago. They rousted the family, forcing them to stand naked in the livingroom while they ransacked the family apartment. They then whisked Mr. Monroe to the police station for a couple days of interrogation. It was Gestapo treatment, pure and simple.
Monroe sued the officers in federal court. The police officers argued that they were not acting under color of law. Their acts were, in effect, ultra vires. If Monroe had a beef, he should and could raise the claims in state-law tort actions. His claims had no business in federal court.
A majority of the Supreme Court thought otherwise, and thus was spawned a complex jurisprudence filled with crazy patchwork logic: You can sue a cop for money damages, but only in his individual capacity. To do otherwise is to violate Eleventh Amendment immunity. And thus was born a public policy that has municipalities throughout the nation in effect providing free insurance to police officers who break the law in the performance of their duties. Sue a cop for violating the right to be free from unreasonable force, and he'll get a city-appointed lawyer; why, the city will even pay damages in most jurisdictions.
The law, Dickens noted, is an ass.
Justice Felix Frankfurter dissented in Monroe v. Pape. His logic is elegant. When a cop violates the law, they lose the cloak of lawman. A thug is a thug is a thug. Ultra vires acts transform a cop into a citizen, and citizens can bring tort claims against one another under state common law. (Good luck with the state-law immunities.)
The federal courts are now behaving as though Frankfurter's dissent is the law of the land, only the judges won't admit it. In the past decade of so a judicial doctrine you'll never hear a rock-ribbed conservative fuss and moan about prevents most cases from ever seeing the light of a courtroom floor. Qualified immunity has become a judicial fantasy land. All but the most egregious conduct by state actors is now forgiven by lifetime appointees.
The federal courts also show hostility to these claims by adopting new rules requiring heightened pleading standards, a boon to the defense bar, which blithely bills every hour. And there are special rules on emotional distress damages. A single witness can testify to a crime, but emotional distress requires corroboration by other witnesses.
The fact is that the federal courts have lost interest in claims of official misconduct. If that is the case, then why not reconsider Monroe v. Pape? Is a little intellectual honesty from the judiciary too much to expect?
Happy New Year, and if you see a cop on the road, genuflect: the law requires it.
Reprinted courtesy of the Connecticut Law Tribune.
Was Monroe v. Pape wrongly decided?
It sure feels as though most judges think it was. But none of them seem willing to think things through to their logical conclusion. So let me offer a helping hand.
The 1961 Supreme Court decision is the lodestone of modern civil rights practice. It clearly established that individuals can bring a federal cause of action against state actors for abusing a person's constitutional rights. This single decision breathed new life into the Ku Klux Klan Act, codified at 42 U.S.C. Section 1983. And for several decades, litigation under the act was robust. During the past decade, however, the courts have done all they could to trim the sails of civil rights litigants. All, that is, except the one thing remaining: overturn Monroe v. Pape.
Here are the facts of the case: Chicago police officers investigating a murder burst into the Monroe home in Chicago. They rousted the family, forcing them to stand naked in the livingroom while they ransacked the family apartment. They then whisked Mr. Monroe to the police station for a couple days of interrogation. It was Gestapo treatment, pure and simple.
Monroe sued the officers in federal court. The police officers argued that they were not acting under color of law. Their acts were, in effect, ultra vires. If Monroe had a beef, he should and could raise the claims in state-law tort actions. His claims had no business in federal court.
A majority of the Supreme Court thought otherwise, and thus was spawned a complex jurisprudence filled with crazy patchwork logic: You can sue a cop for money damages, but only in his individual capacity. To do otherwise is to violate Eleventh Amendment immunity. And thus was born a public policy that has municipalities throughout the nation in effect providing free insurance to police officers who break the law in the performance of their duties. Sue a cop for violating the right to be free from unreasonable force, and he'll get a city-appointed lawyer; why, the city will even pay damages in most jurisdictions.
The law, Dickens noted, is an ass.
Justice Felix Frankfurter dissented in Monroe v. Pape. His logic is elegant. When a cop violates the law, they lose the cloak of lawman. A thug is a thug is a thug. Ultra vires acts transform a cop into a citizen, and citizens can bring tort claims against one another under state common law. (Good luck with the state-law immunities.)
The federal courts are now behaving as though Frankfurter's dissent is the law of the land, only the judges won't admit it. In the past decade of so a judicial doctrine you'll never hear a rock-ribbed conservative fuss and moan about prevents most cases from ever seeing the light of a courtroom floor. Qualified immunity has become a judicial fantasy land. All but the most egregious conduct by state actors is now forgiven by lifetime appointees.
The federal courts also show hostility to these claims by adopting new rules requiring heightened pleading standards, a boon to the defense bar, which blithely bills every hour. And there are special rules on emotional distress damages. A single witness can testify to a crime, but emotional distress requires corroboration by other witnesses.
The fact is that the federal courts have lost interest in claims of official misconduct. If that is the case, then why not reconsider Monroe v. Pape? Is a little intellectual honesty from the judiciary too much to expect?
Happy New Year, and if you see a cop on the road, genuflect: the law requires it.
Reprinted courtesy of the Connecticut Law Tribune.
Tuesday, December 15, 2009
Tme For Universal Public Defender System
Connecticut was the first state in the nation to adopt a Public Defender system, so we have a tradition of leading the way when it comes to the pursuit of justice. It's time we advanced the claims of justice once again. What's needed now is a universal public defender system. In plain English, each and every person accused of a crime in this state should have court-appointed counsel.
I suspect more than a few of you spat out a spray of coffee as you read the preceding paragraph. "Public defenders for all!?" "That's preposterous. Think of the expense!"
Indeed, let's think of the expense.
First, we fully fund each and every prosecution in the State of Connecticut. And we do so without even the insulating effect of a grand jury to protect us from prosecutions that are just plain silly. Not long ago, an associate of mine won a criminal case. It arose from a neighbor dispute. The jury acquitted and then expressed chagrin. Why had the state brought this silly claim to trial?
Here are some reasons why the court system sometimes wastes its time. First, the state constitution gives victims of all sorts of offenses, large and small, a right to be heard. That means prosecutors are often loathe to exercise their discretion to dump a bad case. "Let the jury decide" becomes a means of avoiding responsibility.
But we taxpayers fund each prosecution, no matter how grave or frivolous. The state calls upon the services of trained attorneys, investigators and police officers to develop any case it chooses. Also on tap are legions of state-employed experts, available free of charge to the state. Nobody does a cost-benefit analysis of what we purchase with each prosecution. The cost of doing justice is, apparently, a fixed and irrevocable cost of government.
But the costs of defense are spread unevenly. The indigent get public defenders. But those just above the level of indigency are on their own. They must hire lawyers. And they must also hire investigators and experts of their own. The wealthy can match the state dollar for dollar. But those folks in the middle can't. Private lawyers often lament that they cannot hire the experts they would like because their clients are broke.
Why not create a system that funds both prosecution and defense equally? Retain the adversarial system but house it in a single agency. Call it, despite its Orwellian overtones, the Ministry of Justice.
Under such a regime, the prosecution division would be given a budget for each fiscal year, and it would be expected to give an accounting of what it spent prosecuting each case. The defenders division would be given an equal budget; it too would have to give an accounting of what is spent on each case. At the end of each year, lawmakers could see the consequences of the annual expansion of the penal code. Are we getting social utility for each new addition to the list of prohibited acts?
Let's not forget that under the American rule, the loser always bears his or her own costs. There is something wrong with a criminal justice system that empowers victims, lacks the protection of a grand jury system, and permits prosecutors to pursue each and every claim for which probable cause can be found. Such a system promotes waste, and invites scorn for the law.
The system I propose requires that the work of seeking justice in the criminal law be funded by the state. It would assure a level playing field in all sorts of cases. Just now, a new bevy of so-called experts are being unleashed on defendants in child sex cases: testifying about such gibberish as incremental disclosure, and disclosure of repeated acts in the same location. If the state is going to fund this swill, shouldn't it also finance the defense experts? Isn't there a danger that people of few means will be convicted because they cannot afford to meet the state's case?
Under such a regime anyone would have the right to opt out and hire the high-rolling titans of the bar. But those without means to buy all the bells and whistles would not be whistling in the dark because they have no dough.
A public defender system for all is long overdue. Justice requires it.
Reprinted courtesy of the Connecticut Law Tribune.
I suspect more than a few of you spat out a spray of coffee as you read the preceding paragraph. "Public defenders for all!?" "That's preposterous. Think of the expense!"
Indeed, let's think of the expense.
First, we fully fund each and every prosecution in the State of Connecticut. And we do so without even the insulating effect of a grand jury to protect us from prosecutions that are just plain silly. Not long ago, an associate of mine won a criminal case. It arose from a neighbor dispute. The jury acquitted and then expressed chagrin. Why had the state brought this silly claim to trial?
Here are some reasons why the court system sometimes wastes its time. First, the state constitution gives victims of all sorts of offenses, large and small, a right to be heard. That means prosecutors are often loathe to exercise their discretion to dump a bad case. "Let the jury decide" becomes a means of avoiding responsibility.
But we taxpayers fund each prosecution, no matter how grave or frivolous. The state calls upon the services of trained attorneys, investigators and police officers to develop any case it chooses. Also on tap are legions of state-employed experts, available free of charge to the state. Nobody does a cost-benefit analysis of what we purchase with each prosecution. The cost of doing justice is, apparently, a fixed and irrevocable cost of government.
But the costs of defense are spread unevenly. The indigent get public defenders. But those just above the level of indigency are on their own. They must hire lawyers. And they must also hire investigators and experts of their own. The wealthy can match the state dollar for dollar. But those folks in the middle can't. Private lawyers often lament that they cannot hire the experts they would like because their clients are broke.
Why not create a system that funds both prosecution and defense equally? Retain the adversarial system but house it in a single agency. Call it, despite its Orwellian overtones, the Ministry of Justice.
Under such a regime, the prosecution division would be given a budget for each fiscal year, and it would be expected to give an accounting of what it spent prosecuting each case. The defenders division would be given an equal budget; it too would have to give an accounting of what is spent on each case. At the end of each year, lawmakers could see the consequences of the annual expansion of the penal code. Are we getting social utility for each new addition to the list of prohibited acts?
Let's not forget that under the American rule, the loser always bears his or her own costs. There is something wrong with a criminal justice system that empowers victims, lacks the protection of a grand jury system, and permits prosecutors to pursue each and every claim for which probable cause can be found. Such a system promotes waste, and invites scorn for the law.
The system I propose requires that the work of seeking justice in the criminal law be funded by the state. It would assure a level playing field in all sorts of cases. Just now, a new bevy of so-called experts are being unleashed on defendants in child sex cases: testifying about such gibberish as incremental disclosure, and disclosure of repeated acts in the same location. If the state is going to fund this swill, shouldn't it also finance the defense experts? Isn't there a danger that people of few means will be convicted because they cannot afford to meet the state's case?
Under such a regime anyone would have the right to opt out and hire the high-rolling titans of the bar. But those without means to buy all the bells and whistles would not be whistling in the dark because they have no dough.
A public defender system for all is long overdue. Justice requires it.
Reprinted courtesy of the Connecticut Law Tribune.
Bill of Rights Day: A Reminder
Tim Lynch at the Cato Institute brightened my day by sending along a piece he wrote commemorating Bill of Rights day. I needed a pick-me-up, as I am still licking my wounds after a defeat in a criminal case today.
I pass the link along. Read through it, and be sure to click on the links embedded within his piece. We've come along way in the past 225 years. I am not sure the road we have travelled has made us any freer. Indeed, I suspect the contrary is true. Lynch's piece reminds that the Constitution is still worth fighting over, even if its meaning and import has been transformed beyond recognition during our lifetime.
http://www.cato-at-liberty.org/2009/12/15/bill-of-rights-day-3/
I pass the link along. Read through it, and be sure to click on the links embedded within his piece. We've come along way in the past 225 years. I am not sure the road we have travelled has made us any freer. Indeed, I suspect the contrary is true. Lynch's piece reminds that the Constitution is still worth fighting over, even if its meaning and import has been transformed beyond recognition during our lifetime.
http://www.cato-at-liberty.org/2009/12/15/bill-of-rights-day-3/
Why Criminal Defense Lawyers Are Necessary
My client was convicted yesterday of seven counts of crimes he says he did not commit. I believe my client. Of course, only he and the complaining witness really know what what down, if anything. A jury convicted as it chose to believe the young woman.
Should I have not waived closing argument and told the jury what I thought? Certainly, the decision not to do so is controversial. But I stand by the tactical decision. A jury prepared to convict on the decade's old allegation of a single witness without corroboration is a runaway train. Better perhaps to have thrown myself in front of it, I suppose.
But stunning though the verdict was, the response by way of emails reminds me why criminal defense lawyers are necessary. The world is filled with self-righteous hatred, and foolish bigots prepared to tar, feather and burn their own shadows. I reprint in full one email I received within an hour of the verdict.
The writer is someone who saw part of the trial and heard about the rest. They knew the verdict before it was published. They knew there were six jurors and two alternates who heard the case, but are not familiar with the fact that only six jurors decided it. Odds are the post is not a courthouse staffer, but a relative of the complaining witness or interested witness. The pain in the email makes evident why criminal trials are futile: New pain simply replaces old. Slaking the rage of strangers is an endless task.
I am betting the writer is either a therapist who testified with the slack-jawed elegance of bar hop, or, perhaps, the mother of the complaining witness.
In any case, I pass along the following of a visceral reminder of the power of hate, and why lawyers are, after all, necessary, tactical decisions and all. It takes a certain amount of courage to stand up for another. Of course, it takes none to post anonymously, and so, until the hissies stop fitting, I will disable anonymous posting for a while. The last time I did it, a complaining witness's family was wishing that I would die in prison, the victim of rape. Today's swill is the same old stuff, merely one step removed from naked rage.
IN WHICH I AM REVEALED A SLOVENLY, GOD-FORSAKEN, SELF-CENTERED FOOL IN NEED OF A HAIRCUT ...
"GUILTY ON ALL 7 COUNTS - by an eight member jury within a day's review of all evidence. Everything... from the subject matter experts, to the quality and credibility of witnesses - to the slovenly way the defense attorney and defendant presented themselves at their table. It all added up - and it was an unequivocal and obvious GUILTY verdict. Does anyone understand?... why would the defendant coach a young girls soccer team for a couple seasons?... with no children of his own (much less daughters!) - always wanting to be with the children at family functions!... and we trusted this poor, pathetic, sick individual. I PRAY that this guilty party never harmed or preyed upon any of his other young family members or other children that were placed in his stead all these years (although it is unlikely). I pray that if they find out about the justice handed down today - that THEY will be brave and come forward as well. Shallow is the comfort for the horrific, scarring experiences of an innocent child - her innocence violated repeatedly - who's own life and the life of her family - was threatened repeatedly if she were ever to 'tell anyone'. STRONG - was the victim's will to bring justice and closure to all of this - so she can live a happy and normal life... for the rest of her life. The guilty criminal was wrong! We LOVE and BELIEVE the victim! We would NOT run and hide. We would NOT let the feelings of SHAME diminish our overriding and unending love for this precious child - this gift from God.
"It is in the LIGHT, where truth is revealed – for ALL to see - no matter what the cost or the pain might be. It is the only way to peace and freedom from such a horrific act like this – perpetrated upon an innocent child. This was a little girl who loved and adored her ‘uncle’ and aunt. She had no reason whatsoever to contrive such an awful list of abuse. Tell me… who of you, were in the courtroom to hear testimony - to actually witness the testimony? Would you blindly believe this self-indulgent, narcissistic atheist - that spews trite on this blog without any other evidence at all to present to you at all – except his own? How just and fair is that? Were you there to look into the victim's eyes - and see... and listen to the long list of family, friends and professionals that stood behind the victim and testified against a sloppy, pride filled and smug defense? Were you there to FEEL these events unfold?
"It may seem to work well Norm - this one-sided approach to pontificating your own personal world view of how your client could NEVER have done this – here in the safety of your blogosphere... but the reality of it is - GUILTY!... on ALL seven counts. Move on to your next trial and try it again. You know in your stone cold, heart of hearts – that this was only a payday for you… nothing more… nothing less. As articulate as you may appear to be in your writing style - here in your ‘blog womb’... you are an aberration and an abomination of what justice truly stands for - and it was self evident in the result of this trial.
"And Norm?... lose the ponytail. It is SO passé.
"Let's see how long this ANONYMOUS post stays up. I'd be willing to bet a good wager that ol' Norm takes down the ones that don't suit his particular agenda. I'll get a snapshot of this to show that it was up - and check back over the next few days... let's just SEE if Norm has the testicular fortitude to accept an opposing view - yes? Read carefully and thoroughly between the lines of what exists in this virtual space. Then know... there IS a God - and there IS real justice where there is TRUTH."
Should I have not waived closing argument and told the jury what I thought? Certainly, the decision not to do so is controversial. But I stand by the tactical decision. A jury prepared to convict on the decade's old allegation of a single witness without corroboration is a runaway train. Better perhaps to have thrown myself in front of it, I suppose.
But stunning though the verdict was, the response by way of emails reminds me why criminal defense lawyers are necessary. The world is filled with self-righteous hatred, and foolish bigots prepared to tar, feather and burn their own shadows. I reprint in full one email I received within an hour of the verdict.
The writer is someone who saw part of the trial and heard about the rest. They knew the verdict before it was published. They knew there were six jurors and two alternates who heard the case, but are not familiar with the fact that only six jurors decided it. Odds are the post is not a courthouse staffer, but a relative of the complaining witness or interested witness. The pain in the email makes evident why criminal trials are futile: New pain simply replaces old. Slaking the rage of strangers is an endless task.
I am betting the writer is either a therapist who testified with the slack-jawed elegance of bar hop, or, perhaps, the mother of the complaining witness.
In any case, I pass along the following of a visceral reminder of the power of hate, and why lawyers are, after all, necessary, tactical decisions and all. It takes a certain amount of courage to stand up for another. Of course, it takes none to post anonymously, and so, until the hissies stop fitting, I will disable anonymous posting for a while. The last time I did it, a complaining witness's family was wishing that I would die in prison, the victim of rape. Today's swill is the same old stuff, merely one step removed from naked rage.
IN WHICH I AM REVEALED A SLOVENLY, GOD-FORSAKEN, SELF-CENTERED FOOL IN NEED OF A HAIRCUT ...
"GUILTY ON ALL 7 COUNTS - by an eight member jury within a day's review of all evidence. Everything... from the subject matter experts, to the quality and credibility of witnesses - to the slovenly way the defense attorney and defendant presented themselves at their table. It all added up - and it was an unequivocal and obvious GUILTY verdict. Does anyone understand?... why would the defendant coach a young girls soccer team for a couple seasons?... with no children of his own (much less daughters!) - always wanting to be with the children at family functions!... and we trusted this poor, pathetic, sick individual. I PRAY that this guilty party never harmed or preyed upon any of his other young family members or other children that were placed in his stead all these years (although it is unlikely). I pray that if they find out about the justice handed down today - that THEY will be brave and come forward as well. Shallow is the comfort for the horrific, scarring experiences of an innocent child - her innocence violated repeatedly - who's own life and the life of her family - was threatened repeatedly if she were ever to 'tell anyone'. STRONG - was the victim's will to bring justice and closure to all of this - so she can live a happy and normal life... for the rest of her life. The guilty criminal was wrong! We LOVE and BELIEVE the victim! We would NOT run and hide. We would NOT let the feelings of SHAME diminish our overriding and unending love for this precious child - this gift from God.
"It is in the LIGHT, where truth is revealed – for ALL to see - no matter what the cost or the pain might be. It is the only way to peace and freedom from such a horrific act like this – perpetrated upon an innocent child. This was a little girl who loved and adored her ‘uncle’ and aunt. She had no reason whatsoever to contrive such an awful list of abuse. Tell me… who of you, were in the courtroom to hear testimony - to actually witness the testimony? Would you blindly believe this self-indulgent, narcissistic atheist - that spews trite on this blog without any other evidence at all to present to you at all – except his own? How just and fair is that? Were you there to look into the victim's eyes - and see... and listen to the long list of family, friends and professionals that stood behind the victim and testified against a sloppy, pride filled and smug defense? Were you there to FEEL these events unfold?
"It may seem to work well Norm - this one-sided approach to pontificating your own personal world view of how your client could NEVER have done this – here in the safety of your blogosphere... but the reality of it is - GUILTY!... on ALL seven counts. Move on to your next trial and try it again. You know in your stone cold, heart of hearts – that this was only a payday for you… nothing more… nothing less. As articulate as you may appear to be in your writing style - here in your ‘blog womb’... you are an aberration and an abomination of what justice truly stands for - and it was self evident in the result of this trial.
"And Norm?... lose the ponytail. It is SO passé.
"Let's see how long this ANONYMOUS post stays up. I'd be willing to bet a good wager that ol' Norm takes down the ones that don't suit his particular agenda. I'll get a snapshot of this to show that it was up - and check back over the next few days... let's just SEE if Norm has the testicular fortitude to accept an opposing view - yes? Read carefully and thoroughly between the lines of what exists in this virtual space. Then know... there IS a God - and there IS real justice where there is TRUTH."
Saturday, December 12, 2009
Are Closing Arguments Necessary?
I wonder, increasingly, whether we lawyers overstate our importance at trial. I realize that this is counter intuitive to those who view lawyer's as the star of the show. But trials are supposed to be about fact-finding under the rule of law. Do lawyers get in the way?
I tried something yesterday that I had only done once before in my career: I waived closing argument in a criminal case. The stakes in the case are high. My client faces seven counts alleging various acts of sexual misconduct with a child. The allegations took place eight to ten years ago.
In a criminal case, the prosecution gets two chances to argue to the jury; the defense gets one. The theory goes something like this: The state argues what it thinks it has proven. The defense then gets a chance to argue its case, and to rebut the state's claims. The state then argues one last time to rebut the defense.
In fact, many prosecutors save all their best stuff for their last argument, giving the defense no opportunity to address the jury on the state's more controversial claims. It is common for prosecutors merely to recite the law governing the case and to lay out a simple narrative rehearsing the barest bones of their case in their opening argument. Hiding their major theme until the final act is a sound tactic.
Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.
The argument lacked any persuasive force at all, and was not designed to persuade. As the jury had heard two weeks of evidence already, the state did not inform either. And as the judge was about to charge the jury on the law, the state's presentation really did nothing at all. As the state sat down, I wondered why it had bothered to speak.
My client and I were stunned. All the drama and stress of trial for this? My client and his witnesses and had just testified. There was no need to remind the jury of what they had just said. And the themes we hoped to argue were already set in the cross examination of the state's witnesses and by our witnesses. If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.
So we waived closing argument. The last evidence the jury heard was my client. The state never commented on his testimony or the testimony of our other witnesses in its closing statement. By failing to critically engage our case at all and merely repeat in the most bare bone terms possible the accusations against my client, the state's closing statement did a far better job of presenting our case than I could have done: In bringing this case the state heard what it wanted to hear and ignored all the rest.
Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers. I part company with those who argue that it's all about the lawyer: when Narcissus fishes he hopes to catch something more than his own reflection.
The jury went out yesterday and resumes deliberations on Monday. They heard the evidence and the law. I doubt any argument any lawyer would have made would really change the outcome. A well tried case should leave nothing undone by the time the case is given to the jury; this case was well-tried by both sides.
I went to sleep wondering last night whether closing arguments are really necessary. Some part of me imagined that they are really counterproductive, transforming trial into something other than a search for the truth. I wonder how I will feel after the verdict is returned in this case?
I tried something yesterday that I had only done once before in my career: I waived closing argument in a criminal case. The stakes in the case are high. My client faces seven counts alleging various acts of sexual misconduct with a child. The allegations took place eight to ten years ago.
In a criminal case, the prosecution gets two chances to argue to the jury; the defense gets one. The theory goes something like this: The state argues what it thinks it has proven. The defense then gets a chance to argue its case, and to rebut the state's claims. The state then argues one last time to rebut the defense.
In fact, many prosecutors save all their best stuff for their last argument, giving the defense no opportunity to address the jury on the state's more controversial claims. It is common for prosecutors merely to recite the law governing the case and to lay out a simple narrative rehearsing the barest bones of their case in their opening argument. Hiding their major theme until the final act is a sound tactic.
Yesterday, the prosecutor in my case gave a textbook example of hide-the-ball opening argument. The first three minutes of his "argument" was merely a repetition of the complaining witness' testimony with simple declarative sentences about what other witnesses said: a sort of TV Guide version of the trial condensed into uncritical and bland prose that were not intended to persuade. He spent the balance of his time merely reciting the law the judge was about to read. He ended with a simple request for a guilty verdict. The state failed in its opening to address any of the weaknesses in its case. It was not really argument at all.
The argument lacked any persuasive force at all, and was not designed to persuade. As the jury had heard two weeks of evidence already, the state did not inform either. And as the judge was about to charge the jury on the law, the state's presentation really did nothing at all. As the state sat down, I wondered why it had bothered to speak.
My client and I were stunned. All the drama and stress of trial for this? My client and his witnesses and had just testified. There was no need to remind the jury of what they had just said. And the themes we hoped to argue were already set in the cross examination of the state's witnesses and by our witnesses. If by arguing we really were going to do nothing more than give the state a final shot at what we had already laid before the jury, what, frankly, was the point? We picked a smart and self-confidence jury. We trust that group.
So we waived closing argument. The last evidence the jury heard was my client. The state never commented on his testimony or the testimony of our other witnesses in its closing statement. By failing to critically engage our case at all and merely repeat in the most bare bone terms possible the accusations against my client, the state's closing statement did a far better job of presenting our case than I could have done: In bringing this case the state heard what it wanted to hear and ignored all the rest.
Of course, I worry that I made the wrong call in waiving argument. But part of that is sheer ego. I argue well. Like most defense lawyers I harbor deep fantasies of setting men free with the power of my voice and my skill as a rhetorician. But trial is not about the lawyers. I part company with those who argue that it's all about the lawyer: when Narcissus fishes he hopes to catch something more than his own reflection.
The jury went out yesterday and resumes deliberations on Monday. They heard the evidence and the law. I doubt any argument any lawyer would have made would really change the outcome. A well tried case should leave nothing undone by the time the case is given to the jury; this case was well-tried by both sides.
I went to sleep wondering last night whether closing arguments are really necessary. Some part of me imagined that they are really counterproductive, transforming trial into something other than a search for the truth. I wonder how I will feel after the verdict is returned in this case?
Fighting Freud With Nit-Wit Theories
Imagine the following: A man accused of murder offers an alibi defense. He could not have committed the crime because at the precise moment the victim was killed, he was being help captive by little green people from Mars. He was captive in a Motel 6 room where he was forced to watch endless reruns of Sesame Street. He'll never forget the sing-song theme of the show. Indeed, the more he thinks about the experience, the more he recalls of it. But he's been ashamed to talk about it. Who would believe him?
No lawyer in his or her right mind would put on such an alibi, of course. The story just isn't plausible. We don't believe in alien abduction. At least I think we don't.
But we welcome with open arms any child who alleges he or she has been abused, even if those allegations are a decade or more old and lack any form of corroborating evidence. We've even created an entire industry of folks engaged in such weighty sounding nonsense as "forensic interviewing."
This industry is served by well meaning people. They want to burn the witches in our midst. Abuse a child, and steal innocence. We have to draw a line against these secret crimes, don't we?
By all means. But the business of line drawing ought not to be the work of something akin to hysteria. In alleged child sex cases, we have virtually abandoned statues of limitations. And we are creating an environment in which children are encouraged to "disclose" uncritically events that may or may not have taken place. We then absolve ourselves of responsibility for the consequences by saying we'll let juries decide the ultimate issues.
Suppose a man is accused of fondling a five, six or seven year old a decade or so after the alleged "facts." The child mentions this to parents in the midst of a heated exchange with her parents as he own sexuality blossoms. "Wicked uncle Ernie abused me," she says. "He was inappropriate."
Mom and Dad whisk the teen off to a therapist, who reports the claim. And the child, a few days later, finds herself in a so-called "forensic" interview. A videotape roles. The child is encouraged to "disclose" what is on her mind. No leading questions, a supportive interviewer, and police on the other side of a mirrored wall watching. The child repeats her claim.
From such stuff criminal cases are made every day in this state. But note that these witnesses are coddled despite their inherent unreliability. Placing a child in a room and encouraging them to "disclose" means little more than engaging in uncritical mining of the contents of a mind.
Sigmund Freud did that a century ago, and when he published "Three Essays on Sexuality," he scandalized Europe. He attributed all manner of adult psychiatric disturbances to childhood sexual abuse. The reading public was aghast. Was perversion taking place behind every door?
Freud later reassessed his opinion, and concluded that reports of childhood sex abuse were common not because there was a wicked uncle Ernie lurking behind every door, but because there are wicked desires lurking within the bosom of us all. Psychoanalysis was born of the recognition the a beast lurks within every civilized soul. And when that beast roars, children hear the sound and cannot distinguish fact from fiction. Childhood memories of sexual misconduct aren't reliable as historic truths.
I confronted a "forensic" interviewer with Freud the other day in a courtroom. She acknowledged all this, but only after fighting. She tried to wiggle free by saying she never really met Freud.
I chided the state at the break. "You need to read your Freud," I said. "Freud's been repudiated," he replied. Oh? By whom? The tepid half-wits congratulating one another in such programs as Finding Words? I heard one such expert testify that she would, if asked, use her forensic skills to help a man "disclose" his abduction by little green people. She blushed when she admitted this.
Freud did in fact repudiate his earlier work. Uncritical "disclosure" of memories of childhood abuse often do not yield historic truths about the conduct of others. Such memories are often fantasies. Why are we uncritically mining these memories as evidence today? Do we care so little for liberty? Or is this just a passing fad?
Reprinted courtesy of the Connecticut Law Tribune.
No lawyer in his or her right mind would put on such an alibi, of course. The story just isn't plausible. We don't believe in alien abduction. At least I think we don't.
But we welcome with open arms any child who alleges he or she has been abused, even if those allegations are a decade or more old and lack any form of corroborating evidence. We've even created an entire industry of folks engaged in such weighty sounding nonsense as "forensic interviewing."
This industry is served by well meaning people. They want to burn the witches in our midst. Abuse a child, and steal innocence. We have to draw a line against these secret crimes, don't we?
By all means. But the business of line drawing ought not to be the work of something akin to hysteria. In alleged child sex cases, we have virtually abandoned statues of limitations. And we are creating an environment in which children are encouraged to "disclose" uncritically events that may or may not have taken place. We then absolve ourselves of responsibility for the consequences by saying we'll let juries decide the ultimate issues.
Suppose a man is accused of fondling a five, six or seven year old a decade or so after the alleged "facts." The child mentions this to parents in the midst of a heated exchange with her parents as he own sexuality blossoms. "Wicked uncle Ernie abused me," she says. "He was inappropriate."
Mom and Dad whisk the teen off to a therapist, who reports the claim. And the child, a few days later, finds herself in a so-called "forensic" interview. A videotape roles. The child is encouraged to "disclose" what is on her mind. No leading questions, a supportive interviewer, and police on the other side of a mirrored wall watching. The child repeats her claim.
From such stuff criminal cases are made every day in this state. But note that these witnesses are coddled despite their inherent unreliability. Placing a child in a room and encouraging them to "disclose" means little more than engaging in uncritical mining of the contents of a mind.
Sigmund Freud did that a century ago, and when he published "Three Essays on Sexuality," he scandalized Europe. He attributed all manner of adult psychiatric disturbances to childhood sexual abuse. The reading public was aghast. Was perversion taking place behind every door?
Freud later reassessed his opinion, and concluded that reports of childhood sex abuse were common not because there was a wicked uncle Ernie lurking behind every door, but because there are wicked desires lurking within the bosom of us all. Psychoanalysis was born of the recognition the a beast lurks within every civilized soul. And when that beast roars, children hear the sound and cannot distinguish fact from fiction. Childhood memories of sexual misconduct aren't reliable as historic truths.
I confronted a "forensic" interviewer with Freud the other day in a courtroom. She acknowledged all this, but only after fighting. She tried to wiggle free by saying she never really met Freud.
I chided the state at the break. "You need to read your Freud," I said. "Freud's been repudiated," he replied. Oh? By whom? The tepid half-wits congratulating one another in such programs as Finding Words? I heard one such expert testify that she would, if asked, use her forensic skills to help a man "disclose" his abduction by little green people. She blushed when she admitted this.
Freud did in fact repudiate his earlier work. Uncritical "disclosure" of memories of childhood abuse often do not yield historic truths about the conduct of others. Such memories are often fantasies. Why are we uncritically mining these memories as evidence today? Do we care so little for liberty? Or is this just a passing fad?
Reprinted courtesy of the Connecticut Law Tribune.
Sunday, December 6, 2009
Who's That Prosecutor?
You've heard it before: Don't believe everything you see in the newspapers. That includes the caption beneath photographs.
A bemused client sent me an email yesterday with a link to a story about a case I am trying. Right next to the story was a mug of me, lifted from the shot that accompanies a weekly column I write for the Connecticut Law Tribune. The photograph is me, but the caption is not. I am not a prosecutor.
Check it out: http://www.newstimes.com/news/article/Good-guy-or-calculating-pedophile-276844.php
A bemused client sent me an email yesterday with a link to a story about a case I am trying. Right next to the story was a mug of me, lifted from the shot that accompanies a weekly column I write for the Connecticut Law Tribune. The photograph is me, but the caption is not. I am not a prosecutor.
Check it out: http://www.newstimes.com/news/article/Good-guy-or-calculating-pedophile-276844.php
Friday, December 4, 2009
Say It Ain't So. Edsall Can't Go!
I don't write much about college football. Why would I? I am a University of Michigan fan, and the past three seasons have been akin to a prolonged wake for a proud program. Beginning with an inglorious loss to Appalachian State in a warm up game in 2007, and continuing throughout 2007, 2008 and 2009, the Wolverines show signs of extinction. Fall afternoons are grim at our house these days.
Sustained despair can do things to a man. My need to believe remains constant, however, even as my team whimpers and dies. So somehow, and I count this a miracle, I found myself at the end of the year starting to actually care about the University of Connecticut Huskies. My wife and I watched them beat Notre Dame this year and, pagans that we are, we even started to believe in miracles. And we started to believe in Randy Edsall, the coach of the Huskies.
This morning as I stopped for coffee before heading to the office, I saw the headline of a local paper. Randy Edsall may leave to go to Notre Dame? He might replace the now disgraced Charlie Weiss? Edsall might leave a program he built seemingly from nothing by sheer goodwill, grit and determination? Oh, no! Say it ain't so! Edsall can't go.
But why wouldn't he? I sipped my coffee and glanced at the paper. In a flash, I felt what it must be like to be him. He's transformed UConn's program into a credible Division I team. He is young enough for fresh starts. The college football world is agog over his accomplishment. Like Jesus in the wilderness he is being offered the world.
But Edsall's position is even better than was Jesus'. Satan offered Jesus dominion. And Jesus turned him down. God's university may offer Edsall one of the top perches in college football. There would be fame, fortune, weekly national exposure, better recruiting prospects by atheletes seeking a showcase for NFL scouts. Edsall is being offered a step up on the big three rungs in sociology: class, status and power.
Edsall must be tempted. We all fantasize about making it in the big time. Hell, I'm well on the way to old age and I still harbor the secret hope that I will sometime be given a chance to try the case of the century, whatever that might be.
But I am begging readers to send this column to Edsall. Don't go, Randy. Don't leave a small state with big aspirations. Don't leave the program you built from the ground up. Don't trade us in for Touchdown Jesus and his filthy lucre. The bright lights of weekly media coverage will grow stale. Honest, they will.
The University of Connecticut is not Notre Dame. We have no Knute Rockne in the past. There aren't legendary football traditions treated as ritual. But we are starting something new under the Sun here in the Nutmeg State. Everyman has awakened, flexed his muscles and taken on the ancient gods and goddesses. UConn's program is hopeful, and the people of the state, or, at the very least, my wife and I, have found something new to believe in. Bruce Springstein has found a team.
Don't go, Randy. Please. You're making good money here. You're making history. Your players need you. Your fans need you. And, unless the Wolverines start to kick some serious posterior next year, my wife and I will need you.
Sport is really ritualized combat between good and evil. It is a symbol of all our struggle. We are drawn to it for the relief it yields. Transferring primitive loyalty to the games boys play, we become feral warriors dancing before a war fire the night before we might die. Sport serves the need to believe. It would be unthinkable for Randy Edsall to leave us now, just when we were learning to trust him. Let God take care of Notre Dame; we need Edsall to help us nurture our own secret hopes.
Sustained despair can do things to a man. My need to believe remains constant, however, even as my team whimpers and dies. So somehow, and I count this a miracle, I found myself at the end of the year starting to actually care about the University of Connecticut Huskies. My wife and I watched them beat Notre Dame this year and, pagans that we are, we even started to believe in miracles. And we started to believe in Randy Edsall, the coach of the Huskies.
This morning as I stopped for coffee before heading to the office, I saw the headline of a local paper. Randy Edsall may leave to go to Notre Dame? He might replace the now disgraced Charlie Weiss? Edsall might leave a program he built seemingly from nothing by sheer goodwill, grit and determination? Oh, no! Say it ain't so! Edsall can't go.
But why wouldn't he? I sipped my coffee and glanced at the paper. In a flash, I felt what it must be like to be him. He's transformed UConn's program into a credible Division I team. He is young enough for fresh starts. The college football world is agog over his accomplishment. Like Jesus in the wilderness he is being offered the world.
But Edsall's position is even better than was Jesus'. Satan offered Jesus dominion. And Jesus turned him down. God's university may offer Edsall one of the top perches in college football. There would be fame, fortune, weekly national exposure, better recruiting prospects by atheletes seeking a showcase for NFL scouts. Edsall is being offered a step up on the big three rungs in sociology: class, status and power.
Edsall must be tempted. We all fantasize about making it in the big time. Hell, I'm well on the way to old age and I still harbor the secret hope that I will sometime be given a chance to try the case of the century, whatever that might be.
But I am begging readers to send this column to Edsall. Don't go, Randy. Don't leave a small state with big aspirations. Don't leave the program you built from the ground up. Don't trade us in for Touchdown Jesus and his filthy lucre. The bright lights of weekly media coverage will grow stale. Honest, they will.
The University of Connecticut is not Notre Dame. We have no Knute Rockne in the past. There aren't legendary football traditions treated as ritual. But we are starting something new under the Sun here in the Nutmeg State. Everyman has awakened, flexed his muscles and taken on the ancient gods and goddesses. UConn's program is hopeful, and the people of the state, or, at the very least, my wife and I, have found something new to believe in. Bruce Springstein has found a team.
Don't go, Randy. Please. You're making good money here. You're making history. Your players need you. Your fans need you. And, unless the Wolverines start to kick some serious posterior next year, my wife and I will need you.
Sport is really ritualized combat between good and evil. It is a symbol of all our struggle. We are drawn to it for the relief it yields. Transferring primitive loyalty to the games boys play, we become feral warriors dancing before a war fire the night before we might die. Sport serves the need to believe. It would be unthinkable for Randy Edsall to leave us now, just when we were learning to trust him. Let God take care of Notre Dame; we need Edsall to help us nurture our own secret hopes.
Thursday, December 3, 2009
Walking the Lawyer's Walk
I have a dream. One day lawyers will come to court as bitter foes and leave as friends bound together by sweet reason. Discord shall be replaced by harmony, and the gentle tones of civility will flow. Where there was sorrow, there shall be joy; where there was anger, there shall be peace; and we will all, one and all, unite beneath the bowers of justice. I have that dream, and that dream is good.
But until the dream comes true, I will continue to practice law in the State of Connecticut. And that means I will remain mired neck deep in conflict, sorrow and muck. It also means that the courthouse will remain what it is for so many: a place of dread, terror and fear.
I was reminded of this the other day in Middletown. You see, I have wandered into a high-conflict custody battle, and I was attending my first mediation in the Regional Trial Docket.
The day started with a film narrated by Judge Elaine Gordon. The film is a brilliant appeal to the best within us. It is a reminder to parents that their obligations to their children run far deeper than meals and a bed. Children are tender plants and parents are gardeners. Shower a child with love and it blossoms into a complete human being. Stand in the way of Sun and light and nutrients, and growth is stunted. Too often anger, pride, self-righteousness possess a parent in the midst of divorce. When that happens we hurt our kids. All lawyers should watch Judge Gordon's film.
She is right of course. I sat and listened to her with a heavy heart. Many years ago, I divorced and I am ashamed to admit I did not always make the right choices about my children. I still do not forgive my failings. I could have been a better man. It takes a certain amount of courage to fail and keep on hoping.
When I see my clients collapse in fear, anxiety and grief, I see myself on lesser days. And I am reminded that I am merely an ambassador for the sorrows of others.
Those sorrows come in many forms and are caused by many things. Some folks can't get the business of living right no matter how hard they try. Some folks love anger, others sloth, some lust. Some folks are on the cusp of mental illness. I fantasize about a course in the law organized around the seven deadly sins.
"Why are you representing your client?" I have been asked from time to time. The question usually comes from an adversary exasperated with my client. The question leaves me speechless. Why does a doctor treat the sick?
I represent people in need of a lawyer. Sometimes they have been accused of horrible crimes. Stand next to a man accused of murder, and the victim's family will feel about you more or less the way they feel of the accused. I accept that. But I also accept that my client needs me. A friend to the friendless is an honorable role to play. And, of course, I do it for money. That makes me a hired gun, I suppose.
Sometimes my clients do things I disagree with, and they press me to seek goals I would not seek for myself. That causes sleepless nights. But there is a difference between being asked to help another's dream come true and being asked to do something one finds repugnant. I can't fight for what I cannot stomach, and so, in some cases I have asked to be relieved of the responsibility to represent a client.
But here's the rub: I am a lawyer, not a priest, not a judge, not a philosopher. Clients come with visions of the good and ask my help to use the law to achieve their ends. My obligation is to break my back against justice's wheel to make other's dreams come true. I am not a member of a professional guild entitled to tell others how to live.
So I was offended the other day when two lawyers reproached me for representing a man they contemn. The case is exceedingly difficult for all involved. But I am my client's ambassador. Must I remind my adversaries that lawyerly dreams are often not our clients' dreams? It takes imagination to walk in another's shoes. Why are they practicing law?
Pride is the lawyer's sin. The proud lack empathy. Such pride mistakes a dream, however noble, for reality. The sad reality of our courthouses is not sweet reason made plain. Our courts are waking nightmares, and, as lawyers, we walk dark, dark corridors. It takes courage and stamina to walk that walk day by day.
Reprinted courtesy of the Connecticut Law Tribune.
But until the dream comes true, I will continue to practice law in the State of Connecticut. And that means I will remain mired neck deep in conflict, sorrow and muck. It also means that the courthouse will remain what it is for so many: a place of dread, terror and fear.
I was reminded of this the other day in Middletown. You see, I have wandered into a high-conflict custody battle, and I was attending my first mediation in the Regional Trial Docket.
The day started with a film narrated by Judge Elaine Gordon. The film is a brilliant appeal to the best within us. It is a reminder to parents that their obligations to their children run far deeper than meals and a bed. Children are tender plants and parents are gardeners. Shower a child with love and it blossoms into a complete human being. Stand in the way of Sun and light and nutrients, and growth is stunted. Too often anger, pride, self-righteousness possess a parent in the midst of divorce. When that happens we hurt our kids. All lawyers should watch Judge Gordon's film.
She is right of course. I sat and listened to her with a heavy heart. Many years ago, I divorced and I am ashamed to admit I did not always make the right choices about my children. I still do not forgive my failings. I could have been a better man. It takes a certain amount of courage to fail and keep on hoping.
When I see my clients collapse in fear, anxiety and grief, I see myself on lesser days. And I am reminded that I am merely an ambassador for the sorrows of others.
Those sorrows come in many forms and are caused by many things. Some folks can't get the business of living right no matter how hard they try. Some folks love anger, others sloth, some lust. Some folks are on the cusp of mental illness. I fantasize about a course in the law organized around the seven deadly sins.
"Why are you representing your client?" I have been asked from time to time. The question usually comes from an adversary exasperated with my client. The question leaves me speechless. Why does a doctor treat the sick?
I represent people in need of a lawyer. Sometimes they have been accused of horrible crimes. Stand next to a man accused of murder, and the victim's family will feel about you more or less the way they feel of the accused. I accept that. But I also accept that my client needs me. A friend to the friendless is an honorable role to play. And, of course, I do it for money. That makes me a hired gun, I suppose.
Sometimes my clients do things I disagree with, and they press me to seek goals I would not seek for myself. That causes sleepless nights. But there is a difference between being asked to help another's dream come true and being asked to do something one finds repugnant. I can't fight for what I cannot stomach, and so, in some cases I have asked to be relieved of the responsibility to represent a client.
But here's the rub: I am a lawyer, not a priest, not a judge, not a philosopher. Clients come with visions of the good and ask my help to use the law to achieve their ends. My obligation is to break my back against justice's wheel to make other's dreams come true. I am not a member of a professional guild entitled to tell others how to live.
So I was offended the other day when two lawyers reproached me for representing a man they contemn. The case is exceedingly difficult for all involved. But I am my client's ambassador. Must I remind my adversaries that lawyerly dreams are often not our clients' dreams? It takes imagination to walk in another's shoes. Why are they practicing law?
Pride is the lawyer's sin. The proud lack empathy. Such pride mistakes a dream, however noble, for reality. The sad reality of our courthouses is not sweet reason made plain. Our courts are waking nightmares, and, as lawyers, we walk dark, dark corridors. It takes courage and stamina to walk that walk day by day.
Reprinted courtesy of the Connecticut Law Tribune.
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