John Kindley's People v. State is one of my favorite blogs. He's a libertarian of sorts. His page is steeped in the history of anarchism. He is a young lawyer. This is a recipe for heart break, and this morning I read that he is, in fact, heart broken. You see, it is wearing on him to appear in one court after another and watch his client's rights be given a cold judicial shoulder.
I wanted to give him a call this morning and tell him to buck up, but I'll write instead. I took a couple days off of blogging last week when I was out of town, and I'm heading out next week, too. I had a handful of emails from folks yesterday inquiring whether all was well in my world. The fact is, things could not be better. Time away from the grind is good for the soul. But if its words you want, here they are.
Which brings me back to John Kindley. Here is the best I can offer him:
"Can you imagine how much worse it would be, John, if you were not there?'
I am still naive enough to believe that the Bill of Rights should matter. I take as bedrock principle such things as the right to remain silent when the Government inquires, and the presumption of innocence. But I also know that for most folks in the criminal justice system these principles aren't written in stone. In the real world of courts and lawyers, a seedy, or is it weedy?, pragmatism has taken root. The system is results oriented. A person accused is presumed to have done something wrong. Efficient disposition of a case is the norm in many courthouses. Lawyers who play along are rewarded. Lawyers who rock the boat are tossed overboard when the opportunity to do so arises.
I've worked with dozens of young lawyers over the years. I tell each the following when they begin to try cases.
"You have three goals at trial: First, to win an acquittal, if one can be won. I realize that folks prosecuted weren't selected at random; I don't have the luxury of cherry picking only those cases I think I win. Many cases are difficult, impossibly so. But a lawyer's job is to be the last, and perhaps only, friend of the accused. You fight for the dignity of the person beside you, even unto death.
"The second goal is to preserve error. This is, after all, an adversarial system. Don't ask for permission to put your case on, or to attack the case against you in the way you think best serves your client's interest. Attack. Let the others figure out how to respond to you. Ask for what you want, assert what you believe to be the best statement statement of the law. If someone objects, let them. Trial is not a consensus building activity between judge, prosecution and defense counsel. You are there to fight. Object every time you disagree. Preserve issues for appeal. If you lose the case, be sure your client can live for another day.
"Finally, force error," I tell young lawyers. "Know where the law is unclear. Force the hand of the prosecution and court to make ruling and decisions that require them to take a risk. As always don't be bashful. The truly creative part of being a trial lawyer is to come to the end of a road somewhere where competing legal doctrines intersect and the way forward is not clear. Find a mile marker just beyond the intersection and press on in the name of your client's liberty, of limited government and of commitment to principle. Some of the most amazing things I have ever seen happen at trial came in such wastelands. Seek the desert to see what blooms."
I've given this speech more times than I can recall, and many times I have sat with a lawyer after trial and offered such consolation as I could in the face of disappointment. We are prizefighters, I tell them. We fight for freedom, or, if freedom cannot be had, for the sake of principle. Yes, you were bloodied, but being beaten is a frame of mind. Go, recover, lick your wounds, but be prepared for tomorrow's fight, because the fight is all there is.
And then I am often reminded of the words of Jesus: "Greater love has no man than this, that he lay down his life for a friend." That is what you are doing, John, one client at a time. There is no end to the struggle. It is eternal. Such hope as we can realistically find comes in knowing that we will never surrender the fundamentals, never.
Now, I am heading off to Boston to visit a sick relative and some bookstores. Today, I care for my soul. The souls of others will have to wait until after my vacation ends.
