A good friend and long-time blogger sent me the following message:
"I've noticed that your posts have changed markedly over the past couple of months. You wax more eloquently, but wax. You've become more self-indulgent. You have become increasingly "sensitive", almost to the point of whiny. You are suddenly in touch with your emotions, maybe your feminine side. Less purposeful and more feelings. Have you grown a vagina? Have you forgotten how to say "fuck you?"
"What happened to your edge? "
I never know whether a note like this is dark humor I am simply too dense to appreciate. So I will take it at face value.
"Fuck you" is about self-indulgent as it gets, and I've been writing about the law in the fuck you vein for a decade. I wrote first, and continue to write, as a columnist at the Connecticut Law Tribune. I did a brief stint at Northeast Magazine. Then in 2005 I was invited to blog at Crime and Federalism. I moved to blogs under my own name in 2007. I learned long ago the thrill of taking aim with a keyboard. I count as one of my proudest moments the decision of the Connecticut Judicial Department to cancel subscriptions to the Tribune for all state law libraries a decade ago. I am hoping it was because of something I wrote. I've had a song written about what a nasty prick I can be. You can buy it on a CD produced by Dan Klau.
The other day, I was invited to serve as a speaker at an event. The organizer told me that the other two speakers were the Chief Justice of the Connecticut Supreme Court, and a senior member of the Yale Law School. "Are you sure they will agree to appear with me?" I asked. "I know the professor has been trying to get me thrown of the op ed page of the paper for some time. Check with them. My feelings won't be hurt if you have to drop me."
Somehow, I don't think I've lost my edge. Ask Robert Chatigny.
I may be a little more openly introspective. If so, and if that makes me a less interesting read, blame my psychoanalyst.
Several years ago, my wife was very ill. She nearly died. I was scared and panicked. I went to see a psychiatrist to talk me through the potential loss of a mate, lover and best friend. If my center disappeared, how could I serve as the axis for my children, employees and clients? Many people need what I have to offer; few replenish.
My wife recovered and is fine. But I stuck with the psychiatrist. For approaching two years now, I spend four hours a week on an analyst's couch. It's been eye-opening. I haven't always liked what I have seen.
My first instinct is always to attack. I do so to defend against hurt and fear. The best defense, I say, is a strong offense. But this defense is not always constructive. Sometimes I attack another when the only real threat comes from within. I can be irrational, uncouth even. Anger is easy; equanimity is hard and sometimes terrifying work.
So as my analysis progresses from a slow crawl to baby steps I am delighted from time to time to simply open my eyes and hands to accept what the world offers. If I grasp less tightly at every passing thing, it is less a sign of growing soft than growing strong.
I'd like to think I have not lost my edge. I still attack when the occasion calls for it. But scoffing is a tiresome posture. Forgive me if I refuse to rant at the setting of the Sun.
I read a few blogs on the law, and I follow the personalities projected in each. "Fuck you" works for some folks. It is a spicy brand. But the taste of it has grown bitter on my tongue. If I've grown soft around the edges, there are plenty of other places to go for edge play. For me, the biggest risk comes not it attacking, but in opening a window to the turmoil within. Besides, my wife tells me she likes the warm and fuzzy stuff.
Monday, May 31, 2010
A Line Crossed
Death threats are part of the bargain. I accept that. Responding to them is always difficult. If you run, you are done. Fear will chase you away from every confrontation. I accept hatred and anger. I confront it with what courage I can muster.
But today, for the first time in my legal career, I went to the state police to complain. You see, a client's parents called. Their son, almost 40 years old, whom they fear and from whom they are now in hiding, called this morning. "Your life is in danger," I was told. When I asked what that meant, I was told he had relayed:"I should kill Pattis too." The client is in hiding now, trying to outrun a warrant.
I knew there was homicidal talk in the air last night. I took it seriously enough to keep a loaded gun at our bedside. Bumps in the night terrified. I wandered through the house twice making sure we were safe.
But abstract threats are part of the job. The people we confront, and sometimes the people we represent, are under enormous stress. We are expected to work miracles. Sometimes we can, but sometimes, and too often, the demons win. When they win, we look evil to those we have failed.
I have never gone to the police to complain about a client before. Today was the first time. I crossed a line I had hoped never to cross. As the weekend began, my client was in hiding, somewhere. On Friday evening, a new warrant for his arrest was signed; it came with a high bond. More charges were being piled on to his shoulders. I feared he would snap. When his parents came to see me the following day, I knew my fears were justified.
I will be moving to withdraw from his cases tomorrow. Much though I understand his terror and his rage, when it is directed toward me in ways that could carry potentially fatal consequences, I've done all I am willing to do.
I do not know where this man is just now. I've called the folks in my office to warn them to take care tomorrow morning. A man mad enough to kill is on the loose. He is wanted by the police. On Friday he was man for whom I had fought for many years and was still willing to fight. He is alone, scared and now enraged.
But I am a target of that rage now. In crossing that line, the client has lost my loyalty. For the first time ever, I sat in a police station and gave a statement all my own. I was now a potential victim seeking shelter in a place I have for many years attacked.
A line was crossed today. I feel diminished by crossing it. I am scared, too. But mostly, I am sad. I am also humbled with the realization that lawyers aren't really immune from the chaos around them. We are ambassadors for other people's troubles to be sure. But we have troubles all our own. Trouble found me this weekend, and I am glad to be alive to write about it. Somehow, I have a hard time accepting that someone out there might like to change all that, and soon.
But today, for the first time in my legal career, I went to the state police to complain. You see, a client's parents called. Their son, almost 40 years old, whom they fear and from whom they are now in hiding, called this morning. "Your life is in danger," I was told. When I asked what that meant, I was told he had relayed:"I should kill Pattis too." The client is in hiding now, trying to outrun a warrant.
I knew there was homicidal talk in the air last night. I took it seriously enough to keep a loaded gun at our bedside. Bumps in the night terrified. I wandered through the house twice making sure we were safe.
But abstract threats are part of the job. The people we confront, and sometimes the people we represent, are under enormous stress. We are expected to work miracles. Sometimes we can, but sometimes, and too often, the demons win. When they win, we look evil to those we have failed.
I have never gone to the police to complain about a client before. Today was the first time. I crossed a line I had hoped never to cross. As the weekend began, my client was in hiding, somewhere. On Friday evening, a new warrant for his arrest was signed; it came with a high bond. More charges were being piled on to his shoulders. I feared he would snap. When his parents came to see me the following day, I knew my fears were justified.
I will be moving to withdraw from his cases tomorrow. Much though I understand his terror and his rage, when it is directed toward me in ways that could carry potentially fatal consequences, I've done all I am willing to do.
I do not know where this man is just now. I've called the folks in my office to warn them to take care tomorrow morning. A man mad enough to kill is on the loose. He is wanted by the police. On Friday he was man for whom I had fought for many years and was still willing to fight. He is alone, scared and now enraged.
But I am a target of that rage now. In crossing that line, the client has lost my loyalty. For the first time ever, I sat in a police station and gave a statement all my own. I was now a potential victim seeking shelter in a place I have for many years attacked.
A line was crossed today. I feel diminished by crossing it. I am scared, too. But mostly, I am sad. I am also humbled with the realization that lawyers aren't really immune from the chaos around them. We are ambassadors for other people's troubles to be sure. But we have troubles all our own. Trouble found me this weekend, and I am glad to be alive to write about it. Somehow, I have a hard time accepting that someone out there might like to change all that, and soon.
Lilla on the Tea Party Crowd
One joy of an unexpected day off is catching up on reading. This morning, I read Mark Lilla's essay in the May 27, 2010, New York Review of Books, "The Tea Party Jacobins." Who, Lilla asks, are these ubiquitous tea partiers? More to the point, who are we?
"Survey after survey confirms hat trust in government is dissolving in all advanced societies, and for the same reasons: as voters have become more autonomous, less attracted to parties and familiar ideologies, it has become harder for political institutions to represent them collectively," he writes. We "are apocalyptic pessimists about public life and childlike optimists swaddled in self-esteem when if comes to their own powers."
He nailed it, as he usually does.
My professional life is devoted to the proposition that any concentration of power, any orthodoxy, is to be distrusted. Put ten people in a room, and they will find a way to condemn the eleventh person to arrive. I am drawn to the outlier, the one who walks, looks, or talks funny. I am the not-so-loyal opposition to almost every form of collective action.
But Lilla reminds that this too convenient form of libertarianism is little more than a dream. What stuns about the financial crisis of 2008 is that it was a collective failure requiring a collective response. My portfolio shrank as a result of forces altogether beyond my control. An even better example is watching the Earth bleed in the Gulf of Mexico. It will take collective action to staunch the wound.
Politics is often less a choice between good and evil, than a choice between better and worse. Thus in Connecticut we have a Senate race between a man who lies about his war record and a candidate who has made a fortune in the soft-porn world of make-believe wrestling. Who better to send to Washington?
Neither should go, I want to scream. But I know that one of them will be elected. It is the binary result of an election in a two-party system. But I want to sit the election out, as I have done so many in years past. A pox on both parties, I mumble.
But who, then, shall govern? I would prefer a world of anarchists situated much like myself: self-employed, living in semi-isolation, heedless of the norms of conformist associations. Lilla reminds me that is a privilege not many share, and it is a costly self-indulgence.
I have no trust in government. But I also have no faith in individual genius' ability to keep chaos at bay. The rhetoric of the tea party crowd appeals, but it is like the lyrics at a rock concert: all passion and heat in the safety of a coliseum patrolled by others. I hate government, all right. But I fear chaos more. What to do with that fear is a challenge.
"Survey after survey confirms hat trust in government is dissolving in all advanced societies, and for the same reasons: as voters have become more autonomous, less attracted to parties and familiar ideologies, it has become harder for political institutions to represent them collectively," he writes. We "are apocalyptic pessimists about public life and childlike optimists swaddled in self-esteem when if comes to their own powers."
He nailed it, as he usually does.
My professional life is devoted to the proposition that any concentration of power, any orthodoxy, is to be distrusted. Put ten people in a room, and they will find a way to condemn the eleventh person to arrive. I am drawn to the outlier, the one who walks, looks, or talks funny. I am the not-so-loyal opposition to almost every form of collective action.
But Lilla reminds that this too convenient form of libertarianism is little more than a dream. What stuns about the financial crisis of 2008 is that it was a collective failure requiring a collective response. My portfolio shrank as a result of forces altogether beyond my control. An even better example is watching the Earth bleed in the Gulf of Mexico. It will take collective action to staunch the wound.
Politics is often less a choice between good and evil, than a choice between better and worse. Thus in Connecticut we have a Senate race between a man who lies about his war record and a candidate who has made a fortune in the soft-porn world of make-believe wrestling. Who better to send to Washington?
Neither should go, I want to scream. But I know that one of them will be elected. It is the binary result of an election in a two-party system. But I want to sit the election out, as I have done so many in years past. A pox on both parties, I mumble.
But who, then, shall govern? I would prefer a world of anarchists situated much like myself: self-employed, living in semi-isolation, heedless of the norms of conformist associations. Lilla reminds me that is a privilege not many share, and it is a costly self-indulgence.
I have no trust in government. But I also have no faith in individual genius' ability to keep chaos at bay. The rhetoric of the tea party crowd appeals, but it is like the lyrics at a rock concert: all passion and heat in the safety of a coliseum patrolled by others. I hate government, all right. But I fear chaos more. What to do with that fear is a challenge.
Sunday, May 30, 2010
BP, Icarus and Me: Time For A Cleansing?
I have an apocalyptic frame of mind. I can't help myself. Stories must have beginnings, middles and ends, correct? At least the narrative impulse that serves as the thread I use to navigate through my days suggests so. Here I stand. From whence did I come? What does the future hold? I was born; I will die. Are civilizations and ways of life also bounded by this fateful rhythm?
Events in Arizona chill me. I wonder whether our own home grown ethnic cleansing is gathering shape in the Southwest. I just read a federal complaint seeking injunctive relief against a law seeking to ban aliens from Arizona. The plaintiffs are Mexican-Americans, Americans of Japanese and Chinese descent; there are even folks from Africa as plaintiffs. All have the same fear: being other may be a crime now. A land that boasted of freedom seems suddenly stained by darkness. We cultivate hatred and fear.
One lawmaker recently held forth that not just illegal immigrants, but the children of illegal immigrants should also be barred from the country. That would be me. My father snuck into the United States during the depression. He and his father were from Sfakia, Crete. My father learned English and supported himself for many years with a gun and wits: he was a professional armed robber when payrolls were paid in cash. But for his having shot a man in Detroit, he never would have fled Chicago with his sweetheart, the woman who became my mother. He tried his hand at life within the law's bright lines with us, and then gave up in despair. I did not know whether he was dead or alive for more than 30 years.
When he died, he was still an illegal immigrant. He lived under assumed papers for the vanilla portion of his adult life. My father was an illegal when he died at 84. I am the son of an illegal immigrant. Does that make me illegal, too?
Perhaps it does. Having roots in Crete thrills me. The Cretan civilization was one of the first and grandest in the West. But it died an inglorious death. Only remains speak of the glory that was once Minos: We speak of Daedalus, Icarus and Theseus, but of the civilization that spawned them we know only that it is gone.
I think often of Icarus, flying too close to the Sun until the wax that held his wings together melted and he fell into the the sea. The sea, mind you, a giver of life. From its bounty we are sustained.
Sustained until we kill the it. I watch the spill in the Gulf of Mexico and am moved at once to sorrow and murderous rage. If there were a justification ever for the death penalty it would be for those who desecrate the Earth that sustains us: BP ought to be consigned to some special circle of Hell, its executives bound by a chain of gold to the bottom of Hell's septic system, forced forever to wade against a rising tide of its own feces. BP has fouled the seas.
But I am not innocent. I guzzle gas and oil in my own heedless pursuit of the good. I am Icarus unbound, racing across the new world as though there were no tomorrow, seeking to put distance between me and yesterday's sorrows. I am BP. Yet I do not want the penalty to come. I fear the silence of an indifferent Earth.
I am reminded of classics in apocalyptic literature: The Death of Grass, Earth Abides, A Canticle for Leibowitz, and, most recently, The Road. In each, lonely survivors confront an angry world; nature unbound, its harmony undone by consequences perhaps foreseen but not avoided. What have we wrought in the Gulf of Mexico?
Oil hemorrhages from an open wound. It oozes into the water from which life is bread. Goo covers living things, and coats adjoining Earth. A hurricane season lingers, with fear that this cancerous new ecosystem will metastasize and spread inland. Will farmers' fields be contaminated? Will a ferocious wind carry slick poison northward? Will the bleeding at the sea's bottom ever stop? How will this summer's rains taste in New England?
The Earth warms, its surface cracks, a black fool's gold becomes poison. There is death in the sea, and with death fear. We somehow seek to cleanse the nation from all but the pure. But who among us really belongs here? Who has not migrated from elsewhere? Aren't we all displaced Cretans, hanging, however precariously, to a way of life that we are too reluctant to recognize as fragile and capable of irrevocable destruction?
We are all Cretans today, far from home, and scared.
Memorial Day Musing
For many years I took one month off each year. That month plus, I should add, Christmas day. I worked seven days a week, eleven months a year. The weekends were half days. I'd work nine to five, sleeping in and getting home early enough to play. Come July, I would hunker down with my family on the Cape, bringing a few boxes of work along to stoke the work demon's demands.
A few years back it struck me that this was a too demanding schedule. My wife likes to have me around the house, or so she says. We now live in a rural area on land with always too much to do. So I started taking Saturdays off. This sabbath, a wholly secular event, begins on Friday evening and extends until I head into the office on Sunday morning.
Clients seem surprised that I work Sunday. I wonder how trial lawyers avoid working weekends. If you are in court all week, you need a day on the weekend to sort through the mail, read new decisions, prepare for the week to come. I'm getting long in the tooth; I refuse to work late into the night any longer. Twelve hour days are my limit. Gone are the days when I would boast of long days and little sleep.
So why this post on Memorial Day? It's Sunday, and I took yesterday off to stay at home and work with my wife in our garden. (We're now eating home grown lettuce, rhubarb and asparagus. Soon we will have peas. The garden thrives this year, thank you.) So it's Sunday, and although my wife and I linger over breakfast and the New York Times, come 9 a.m. my feet get itchy. Time to go punch the time clock.
Or is it? What would happen if I took an entire weekend off? I savor the thought like a dieter's contemplation of a rich chocolate cake. So long as I am contemplating reckless pleasure, why not take Monday off, too? How about a three-day weekend? The thought unnerves me.
But it delights my wife. She skips around the house acting as though it were already time to head for the Cape. She knows better than to encourage my directly. I am an old ass. Push me to the right, and the left looks appealing. But I watch the look on her face and once again ask: What did I do to deserve her? I've rambled and rumbled so recklessly through life that I marvel at her gentle enjoyment of me. She sees something in me I am reluctant to acknowledge.
So a three-day weekend? Perhaps. Although I made a quick trip to the office yesterday to meet with folks in crisis. But that was a brief meeting, lasting only a couple of hours. Emergencies happen. It doesn't really count.
The Sun shines today. The dogs bound about happy that all members of the pack are home. My wife glows with a silent contentment. Today's law work can wait a day or so. No deadlines loom. Summer dawns today, and I am going to stay home and enjoy it.
"Objection," the cranky workaholic in me cries.
"Overruled," I reply. I think I will head out to the garden to do some more planting. It's time for new growth.
Saturday, May 29, 2010
Police Gone Wild
Want to see what the country looks like when law enforcement goes hog wild? Check out the CATO Institute's Raid Map.
Friday, May 28, 2010
Shosel's Supreme Power; FDR's Court-Packing Fight And The Roots Of Modern Jurisprudence
Good books are like good movies: When they're done, you hope there will be a sequel. So here is a request to Jeff Shosel, please write next about the intellectual history of the current Supreme Court. Half the work is already done. You did it in your last volume, brilliantly executed, Supreme Power: Franklin Roosevelt vs. The Supreme Court (W.W. Norton, 2010).
We're an early to bed early to rise family. Except in my case, where invariably I awaken to read for several hours in the middle of the night. It's quiet then. No distractions of any sort. Last night, I finished Shosel's account of the "switch in time that saved nine," Roosevelt's proposed legislation to pack the Supreme Court with justices more in line with views of the Constitution Roosevelt believed served the national interest.
This book is must reading for anyone who litigates constitutional issues. Shosel doesn't bring a lawyer's understanding to his history. The former Clinton speechwriter is trained as an historian. I suspect it is the lack of the cluttered and sometimes claustrophobic vocabulary of a lawyer that makes the book such a good and accessible read. Shosel would agree with Roosevelt that the Constitution is "a layman's document, not a lawyer's contract."
Roosevelt's efforts to focus national resources on the economic crisis we now refer to as the Great Depression was stymied by a Court populated by a majority of justices prepared to find almost any assertion of federal power anathema. As one New Deal provision after another was struck down, Roosevelt fumed. Were archaic notions of the nation's promise strangling its ability to deliver on that promise? The administration debated Constitutional amendments and legislative proposals to elimate judicial review, permit a legislative over-ride of a Court decision, and then, finally, to add as many as six new members to a Court trapped in the horse and buggy era. When Roosevelt came out swinging in support of the proposal to add justices, the nation was electrified by a debate about the role of the Court in our life. When several members of the Court later switched side, and ruled in favor of the New Deal legislation, the court-packing plan went belly up. Roosevelt declared victory. Of course, it was really not this simple.
The struggled over the Court''s New Deal identity really set the stage for the conflict about the Courts in our time. The court remains a controversial instutiton capable of stirring passionate disagreement.
Hence, in our time, the Federalist Society walks the walk of those justices who, in the early 1930s, struck down laws against child labor and the minimum wage. The main difference? Today conservative jurists have a well-honed ideology to guide them not just in deciding cases, but in applying litmus tests to just who is suitable to be a judge. Orignalism, America's closest brush with Oriental necromancy, is a product of the defeat of the Court's conservative wing. The vanquished retreated, and nurtured its own ideology in retreat during the days of the Warren Court. A conservative coup, decades in the making, yielded the Court now governing. This Court serves powerful social interests, but pretends merely to be interpreting a contract.
The Roberts Court makes law every bit as much as did the Warren Court, although it is not ideologically possible for conservatives to admit this. No, the gambit they employ to end debate is that they "find" the law. Only those who view the Constitution as, gasp!, a living instrument, "make" law. Courts should not make law. That is bad, bad, bad. Shosel's book lays bare the origins of this species of silliness.
A century ago it was common to speak of the Constitution as living, an organic instrument tethered to the laws of life. Shosel reminds us that long before contemporary conservatives took pot shots at the living Constitution, Woodrow Wilson, Oliver Wendell Holmes, Jr., and others supported the view of our founding document as a forward looking charter capable of growing and expanding to meet the new challenges of new days.
As I read Shosel I from time to time sat bolt upright and wanted to exclaim "Eureka!" There really is nothing new under the Sun. The deep crust of nectrotic interprative crust that has made such clauses as the due process clause virtual dead letters in our law today is of only recent formation. The battle for the Court and the meaning of the Constitution is a struggle that will live so long as the republic endures. Today's orthodoxies are yesteryear's bold and radical nonsense.
I would love to see how Shosel interpret the Court's current intellectual climate. I am less interested in this history as a matter of the development of legal doctrine. There are a thousand and one professors out there who can spin legal docrtines into theoretical webs capable of simultaneously explaining everyithing and nothing. What's needed is less theory and more history. A perfect companion volume to Supreme Power might be entitled Yesteryear's Triumph. It would be a tale with its roots in the 1930s and a jurisprudence set into exile by the threat of court-packing. It would be a history of the Court from the end of the New Deal era until our time, focusing on the legal interest groups whose purpose it is to create legal doctrines telling others how they must live. What do you say, Mr. Shosel? I know you are up to the task. Supreme Power, a triumph, proves it.
We're an early to bed early to rise family. Except in my case, where invariably I awaken to read for several hours in the middle of the night. It's quiet then. No distractions of any sort. Last night, I finished Shosel's account of the "switch in time that saved nine," Roosevelt's proposed legislation to pack the Supreme Court with justices more in line with views of the Constitution Roosevelt believed served the national interest.
This book is must reading for anyone who litigates constitutional issues. Shosel doesn't bring a lawyer's understanding to his history. The former Clinton speechwriter is trained as an historian. I suspect it is the lack of the cluttered and sometimes claustrophobic vocabulary of a lawyer that makes the book such a good and accessible read. Shosel would agree with Roosevelt that the Constitution is "a layman's document, not a lawyer's contract."
Roosevelt's efforts to focus national resources on the economic crisis we now refer to as the Great Depression was stymied by a Court populated by a majority of justices prepared to find almost any assertion of federal power anathema. As one New Deal provision after another was struck down, Roosevelt fumed. Were archaic notions of the nation's promise strangling its ability to deliver on that promise? The administration debated Constitutional amendments and legislative proposals to elimate judicial review, permit a legislative over-ride of a Court decision, and then, finally, to add as many as six new members to a Court trapped in the horse and buggy era. When Roosevelt came out swinging in support of the proposal to add justices, the nation was electrified by a debate about the role of the Court in our life. When several members of the Court later switched side, and ruled in favor of the New Deal legislation, the court-packing plan went belly up. Roosevelt declared victory. Of course, it was really not this simple.
The struggled over the Court''s New Deal identity really set the stage for the conflict about the Courts in our time. The court remains a controversial instutiton capable of stirring passionate disagreement.
Hence, in our time, the Federalist Society walks the walk of those justices who, in the early 1930s, struck down laws against child labor and the minimum wage. The main difference? Today conservative jurists have a well-honed ideology to guide them not just in deciding cases, but in applying litmus tests to just who is suitable to be a judge. Orignalism, America's closest brush with Oriental necromancy, is a product of the defeat of the Court's conservative wing. The vanquished retreated, and nurtured its own ideology in retreat during the days of the Warren Court. A conservative coup, decades in the making, yielded the Court now governing. This Court serves powerful social interests, but pretends merely to be interpreting a contract.
The Roberts Court makes law every bit as much as did the Warren Court, although it is not ideologically possible for conservatives to admit this. No, the gambit they employ to end debate is that they "find" the law. Only those who view the Constitution as, gasp!, a living instrument, "make" law. Courts should not make law. That is bad, bad, bad. Shosel's book lays bare the origins of this species of silliness.
A century ago it was common to speak of the Constitution as living, an organic instrument tethered to the laws of life. Shosel reminds us that long before contemporary conservatives took pot shots at the living Constitution, Woodrow Wilson, Oliver Wendell Holmes, Jr., and others supported the view of our founding document as a forward looking charter capable of growing and expanding to meet the new challenges of new days.
As I read Shosel I from time to time sat bolt upright and wanted to exclaim "Eureka!" There really is nothing new under the Sun. The deep crust of nectrotic interprative crust that has made such clauses as the due process clause virtual dead letters in our law today is of only recent formation. The battle for the Court and the meaning of the Constitution is a struggle that will live so long as the republic endures. Today's orthodoxies are yesteryear's bold and radical nonsense.
I would love to see how Shosel interpret the Court's current intellectual climate. I am less interested in this history as a matter of the development of legal doctrine. There are a thousand and one professors out there who can spin legal docrtines into theoretical webs capable of simultaneously explaining everyithing and nothing. What's needed is less theory and more history. A perfect companion volume to Supreme Power might be entitled Yesteryear's Triumph. It would be a tale with its roots in the 1930s and a jurisprudence set into exile by the threat of court-packing. It would be a history of the Court from the end of the New Deal era until our time, focusing on the legal interest groups whose purpose it is to create legal doctrines telling others how they must live. What do you say, Mr. Shosel? I know you are up to the task. Supreme Power, a triumph, proves it.
Thursday, May 27, 2010
A Long Pause ...
A funny thing happened this afternoon as I was driving home from court. I am in trial in an arson case. We adjourned early today, and will not resume evidence until Tuesday. It is likely that we will give closing arguments that very day.
It's hard at the end of a case, when the evidence is largely in and all that remains is closing arguments. The facts dance like dervishes in your head. You try to name the dancers, identify their patterns, and match the images to some beat or music that fits. Trial lawyers orchestrate chaos. When a trial nears conclusion, all is nerves and apprehension.
Since last Labor Day, every trial of mine has ended with anxiety plus. I've been in difficult run of cases that ran back to back to back as follows: murder, manslaughter, child sex abuse, First Amendment violation, murder, child sex abuse, arson. Each has been difficult. Preparing for them amid the push and pull of a busy practice has been hard on my staff, my family and me.
So as I drove home from court today I thought, what next? What trial do I begin next week or the following? And it snuck up on me from alongside of nowhere: I have no trial scheduled until September. That's a long time.
Of course, it's possible a judge will call and I will be all scramble again between now and then. But it would be nice to take it slow this summer. To sleep, to dream, to get to the bottom of my desk.
I've been clearing piles on my desk this afternoon, and I came across a stack of thank you cards. I read them with silent pleasure worth sharing. One client thanked me for listening, another for saving her life. Another for trying my best, although I failed, to set her son free. These cards are reminders I cherish that despite the law's difficulties, there are rewards in the form of human warmth.
I kept the cards because I am so constituted that I almost always focus on what is hard and unpleasant, never on what is good and easy. I have a cruel streak, and it is often directed at myself. I also keep the cards because they are a counterweight to those cases in which I fail to please a client. I've learned long ago that the law is like marriage: Not all attorney-client relationships work. No lawyer can be all things to all men and woman.
I was putting the cards aside when I came across an anonymous note. It lambastes me for my failings. I am sure I failed the writer, and the writer is on a mission to remind me of my failure. Everyone needs a mission in life. It is sobering to have become a target of fury.
Practice makes perfect, we say. You are never perfect in the practice of law. Some clients love you, others hate you. It goes with the turf. But the anonymous scorn of strangers is like a dry desert wind: It kicks up cactus and tumbleweed, and it blows dry dirt. It sounds, for all the world, like the dry screech of a lonely psychiatric ward. For every wound we can treat in the law, many go without relief. Some we inflict, and others are inflicted on us.
As I get off the crazy train that's carried me from trial to trial these past nine months, I am happy to still be standing. And I am grateful for the support of those who love me. I ask for no more.
It's hard at the end of a case, when the evidence is largely in and all that remains is closing arguments. The facts dance like dervishes in your head. You try to name the dancers, identify their patterns, and match the images to some beat or music that fits. Trial lawyers orchestrate chaos. When a trial nears conclusion, all is nerves and apprehension.
Since last Labor Day, every trial of mine has ended with anxiety plus. I've been in difficult run of cases that ran back to back to back as follows: murder, manslaughter, child sex abuse, First Amendment violation, murder, child sex abuse, arson. Each has been difficult. Preparing for them amid the push and pull of a busy practice has been hard on my staff, my family and me.
So as I drove home from court today I thought, what next? What trial do I begin next week or the following? And it snuck up on me from alongside of nowhere: I have no trial scheduled until September. That's a long time.
Of course, it's possible a judge will call and I will be all scramble again between now and then. But it would be nice to take it slow this summer. To sleep, to dream, to get to the bottom of my desk.
I've been clearing piles on my desk this afternoon, and I came across a stack of thank you cards. I read them with silent pleasure worth sharing. One client thanked me for listening, another for saving her life. Another for trying my best, although I failed, to set her son free. These cards are reminders I cherish that despite the law's difficulties, there are rewards in the form of human warmth.
I kept the cards because I am so constituted that I almost always focus on what is hard and unpleasant, never on what is good and easy. I have a cruel streak, and it is often directed at myself. I also keep the cards because they are a counterweight to those cases in which I fail to please a client. I've learned long ago that the law is like marriage: Not all attorney-client relationships work. No lawyer can be all things to all men and woman.
I was putting the cards aside when I came across an anonymous note. It lambastes me for my failings. I am sure I failed the writer, and the writer is on a mission to remind me of my failure. Everyone needs a mission in life. It is sobering to have become a target of fury.
Practice makes perfect, we say. You are never perfect in the practice of law. Some clients love you, others hate you. It goes with the turf. But the anonymous scorn of strangers is like a dry desert wind: It kicks up cactus and tumbleweed, and it blows dry dirt. It sounds, for all the world, like the dry screech of a lonely psychiatric ward. For every wound we can treat in the law, many go without relief. Some we inflict, and others are inflicted on us.
As I get off the crazy train that's carried me from trial to trial these past nine months, I am happy to still be standing. And I am grateful for the support of those who love me. I ask for no more.
Another Brilliant Cipher For The Court?
For all I know Susan Carney is one of the law’s gems, a legal genius of rarefied intellect and Solomonic wisdom. Her resume is certainly impressive. Harvard College. Harvard Law School. Federal court clerk. Counsel to the Peace Corp. Yale University legal counsel. She glitters.
Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit. That worries me some. I go to court almost every day the courts are open and have for a good many years now. When someone is appointed to be a judge who is a stranger to the courtroom I worry. Doesn’t experience count for something?
I know, I know. I am not the standard. I am an uncouth barbarian by the standards of the clubby elites of the federal bar. I didn’t attend law school at the right schools. I never clerked for a judge. I never worked at a big firm. I don’t go to cocktail parties, bar group gropes or conferences staffed by judges opining on the view from Olympus.
But I reserve the right to assert that experience matters. The life of the law, Oliver Wendell Holmes, Jr., said long ago, is not logic, but experience. It makes little sense to place a brilliant technician in a seat requiring nuanced judgment.
President Obama’s recent judicial nominations leave a lot to be desired. We’ve got Elena Kagan slated for the Supreme Court, and Susan Carney for the Second Circuit. Neither appear to have spent appreciable time in a courtroom. When it comes to the law, all that glitters is not gold.
We need fewer brilliant theoreticians on the bench. The law is not some vast Platonic superstructure. Rather the law is simply the application of legal doctrine to a particular conflict. A judge who has never tried to manage a conflict for a client is merely a tourist in the courts, a surgeon who has operated on textbook drawings.
The bias in favor of appointing judges who have served time in the law’s status factories – the big-time law schools, federal clerkships, professorial positions -- reflects a view of the law two steps removed from the reality of conflict. Why not appoint a practicing public defender to the federal bench, someone who has represented ordinary people in conflict with the government?
Has anyone looked at Brian Carlow, Karen Goodrow, or any of a dozen other public servants who have spent decades in a courtroom defending people?
I am reminded all at once of why I found law school to be a period of vast and unremitting torpor. The professors stood before the class and kept harping about theory. What was the theory of this case? The theory of that case? What vision of the law was reflect in this opinion? How can the various doctrines arising in contemplation of the thousands of cases working their way through the courts be harmonized into some coherent whole? What is it that the law requires under this, that or the other circumstance?
Much though I love supple intellectual exercise, law school resembled a gymnastics class offered to amputees: Imagining the fun one could have with parts no longer present is just a tease.
Practicing lawyers meet people with problems. The landlord is tossing them from an apartment. They have been accused of rape. The government claims back taxes. In a courtroom these conflicts are decided by resort to evidence and law. The evidence consists of admissible facts; the law is mere doctrine that may, or may not, serve the interests of the parties in a dispute. It just isn’t any more complicated than that in a real courtroom, ever.
Judges without courtroom experiences build sand castles in the air. They follow visions of the good detached from reality of the hard work of justice. President Obama should do a better job with his nominees. Carney belongs at Yale, not on the bench.
Reprinted courtesy of the Connecticut Law Tribune.
Yet for all that, I never heard of Carney until President Barack Obama appointed her for a seat on the United States Court of Appeals for the Second Circuit. That worries me some. I go to court almost every day the courts are open and have for a good many years now. When someone is appointed to be a judge who is a stranger to the courtroom I worry. Doesn’t experience count for something?
I know, I know. I am not the standard. I am an uncouth barbarian by the standards of the clubby elites of the federal bar. I didn’t attend law school at the right schools. I never clerked for a judge. I never worked at a big firm. I don’t go to cocktail parties, bar group gropes or conferences staffed by judges opining on the view from Olympus.
But I reserve the right to assert that experience matters. The life of the law, Oliver Wendell Holmes, Jr., said long ago, is not logic, but experience. It makes little sense to place a brilliant technician in a seat requiring nuanced judgment.
President Obama’s recent judicial nominations leave a lot to be desired. We’ve got Elena Kagan slated for the Supreme Court, and Susan Carney for the Second Circuit. Neither appear to have spent appreciable time in a courtroom. When it comes to the law, all that glitters is not gold.
We need fewer brilliant theoreticians on the bench. The law is not some vast Platonic superstructure. Rather the law is simply the application of legal doctrine to a particular conflict. A judge who has never tried to manage a conflict for a client is merely a tourist in the courts, a surgeon who has operated on textbook drawings.
The bias in favor of appointing judges who have served time in the law’s status factories – the big-time law schools, federal clerkships, professorial positions -- reflects a view of the law two steps removed from the reality of conflict. Why not appoint a practicing public defender to the federal bench, someone who has represented ordinary people in conflict with the government?
Has anyone looked at Brian Carlow, Karen Goodrow, or any of a dozen other public servants who have spent decades in a courtroom defending people?
I am reminded all at once of why I found law school to be a period of vast and unremitting torpor. The professors stood before the class and kept harping about theory. What was the theory of this case? The theory of that case? What vision of the law was reflect in this opinion? How can the various doctrines arising in contemplation of the thousands of cases working their way through the courts be harmonized into some coherent whole? What is it that the law requires under this, that or the other circumstance?
Much though I love supple intellectual exercise, law school resembled a gymnastics class offered to amputees: Imagining the fun one could have with parts no longer present is just a tease.
Practicing lawyers meet people with problems. The landlord is tossing them from an apartment. They have been accused of rape. The government claims back taxes. In a courtroom these conflicts are decided by resort to evidence and law. The evidence consists of admissible facts; the law is mere doctrine that may, or may not, serve the interests of the parties in a dispute. It just isn’t any more complicated than that in a real courtroom, ever.
Judges without courtroom experiences build sand castles in the air. They follow visions of the good detached from reality of the hard work of justice. President Obama should do a better job with his nominees. Carney belongs at Yale, not on the bench.
Reprinted courtesy of the Connecticut Law Tribune.
Chatigny Vote Scheduled For Today
There's really only one good reason I can fathom for promoting United States District Judge Robert N. Chatigny to the Second Circuit: Removing him from the trial courts will make room for a breath of fresh air in the Connecticut trial courts. Besides, if Chatigny sits on a panel of at least three each and every time he dons the robe, his impact will be diluted.
The Senate Judiciary Committee will vote today on whether to approve the nomination of Chatigny to the United States Court of Appeals for the Second Circuit. Insiders tell me approval is expected. So there will be champagne corks popping, or do they triumphantly toss a gavel and twirl a hem-raising spin in their robe when judges celebrate?, in Chatigny-land today.
Chatigny's record in sex offender cases has earned him the scorn of the right. The Washington Times this week poked at Chatigny in an editorial entitled "Sexual Sadism, Unleaded." The paper notes he has been reversed by the United States Supreme Court regarding sex offender registration. He once commented that a serial killer on death row in Connecticut was the least culpable of the men condemned: Michael Ross's penchant to rape and kill was clinical evidence of sexual sadism, the judge opined. The judge also departs downward routinely from sentencing guidelines, including in cases involving child pornography.
These are parts of the good Robert Chatigny, in my view. The nation's sex offender laws are a sick joke. Chatigny has seen through the facade. He's tried to do justice there, even if the higher courts and lawmakers care not a whit for justice. With the exception of his behavior in the Michael Ross case, I like his record in sex offender cases. Think Jack Weinstein, but without the personality.
What troubles me about the judge is demeanor. Under his tenure as chief judge, a new era of judicial management was ushered into the Connecticut federal courts. Lawyers now must waste time they don't have on status reports and meaningless paper-pushing. Trials are vanishing in Connecticut as elsewhere. One of the prime factors killing trials in Connecticut is the amount of judicial groping of cases and controversies. Few can afford the whims of a lifelong appointee with no need ever to think about the financial consequences of their decisions.
Judge Chatigny assumed the bench in the mid-1990s never having tried a case to a verdict as a lawyer -- not one single verdict. His tenure as judge has been a long process of self-education. While he dithered, our files got fondled. The docket creeped. I will not be sorry to see him leave the trial bench.
Neither will the lawyers who have written to the Senate Judiciary Committee complaining of his demeanor. This is a judge who once threatened a lawyer with disbarment when the lawyer followed a course on a client's behalf with which the judge disagreed. In Chaitgny-land, umpires rule.
Chatigny on the Second Circuit? It looks like a go. I so go quickly.
The Senate Judiciary Committee will vote today on whether to approve the nomination of Chatigny to the United States Court of Appeals for the Second Circuit. Insiders tell me approval is expected. So there will be champagne corks popping, or do they triumphantly toss a gavel and twirl a hem-raising spin in their robe when judges celebrate?, in Chatigny-land today.
Chatigny's record in sex offender cases has earned him the scorn of the right. The Washington Times this week poked at Chatigny in an editorial entitled "Sexual Sadism, Unleaded." The paper notes he has been reversed by the United States Supreme Court regarding sex offender registration. He once commented that a serial killer on death row in Connecticut was the least culpable of the men condemned: Michael Ross's penchant to rape and kill was clinical evidence of sexual sadism, the judge opined. The judge also departs downward routinely from sentencing guidelines, including in cases involving child pornography.
These are parts of the good Robert Chatigny, in my view. The nation's sex offender laws are a sick joke. Chatigny has seen through the facade. He's tried to do justice there, even if the higher courts and lawmakers care not a whit for justice. With the exception of his behavior in the Michael Ross case, I like his record in sex offender cases. Think Jack Weinstein, but without the personality.
What troubles me about the judge is demeanor. Under his tenure as chief judge, a new era of judicial management was ushered into the Connecticut federal courts. Lawyers now must waste time they don't have on status reports and meaningless paper-pushing. Trials are vanishing in Connecticut as elsewhere. One of the prime factors killing trials in Connecticut is the amount of judicial groping of cases and controversies. Few can afford the whims of a lifelong appointee with no need ever to think about the financial consequences of their decisions.
Judge Chatigny assumed the bench in the mid-1990s never having tried a case to a verdict as a lawyer -- not one single verdict. His tenure as judge has been a long process of self-education. While he dithered, our files got fondled. The docket creeped. I will not be sorry to see him leave the trial bench.
Neither will the lawyers who have written to the Senate Judiciary Committee complaining of his demeanor. This is a judge who once threatened a lawyer with disbarment when the lawyer followed a course on a client's behalf with which the judge disagreed. In Chaitgny-land, umpires rule.
Chatigny on the Second Circuit? It looks like a go. I so go quickly.
Wednesday, May 26, 2010
Justice Is Blind, And Sometimes Deaf
What do you do when you discover that your judge's ear drum is connected to your ass? You try to be gracious, delicate and decorous. Remember, the man with gavel rules, even when the rules make no sense.
I was reminded of this today on a flatulent sort of day in trial. My client faces trial in an arson case. He stands accused of setting a residence on fire in the dead of night as the homeowner slept. We have pleaded not guilty, and are now about the solemn work of trial.
Although I live in a tiny state, I rarely try cases in the same courthouse twice in a given year. I don't generally wear well, and after one case ends, I prefer to head to another town. I doubt that absence makes anyone's heart really grow fonder as to me, but I know that familiarity breeds contempt. I sort of like the peripatetic life. The town I am now in is a nice waterfront community. At lunch I walk to a harbor to smell the sea.
Today I sat in the courtroom watching witnesses. From time to time I would object. The court's rulings mystified me. Sometimes the objections were sustained, but other times the court would say it did not hear me. I used the same tone throughout the proceedings. What gives?, I wondered. I didn't really give it a whole lot of thought as the prosecutor typically rephrased his questions after my objections.
Toward day's end, however, the judge told me that he liked it when people stood to raise objections. He understood, he said, that differing judges had differing practices, but he wanted me to stand. I noticed thereafter even an inch of elevation from my seat improved the court's hearing. I am not decorous enough to suit all who wear the robe. I need to work on that.
I apologized to the judge, of course. It has been eight or so years since I last tried a case before this particular judge. In the hurly-burly of trial it had not occurred to me to ask about his preference. I was so lost in the moment, I hadn't associated a quick, "Objection, leading," with bolting to my feet. But the judge gets what he wants in the land of decorum. I promised to do better, and I did.
The judge had nothing to say mid-day when a strange rumble issued from the jury box, however. I turned to a paralegal. "Was that what I thought it was?" My eyes were wide and mirth was tamped down with effort. "I think so," the paralegal said. And then it happened again, a loud, sonorous bit of flatulence, a.k.a., a fart, ripped through the room. We all did our best to ignore it, even the judge.
So while the court's ability to hear my objection appears somehow linked to the location of my butt, the work-product of a juror's rear went unnoticed. Justice is blind, my friends, and sometimes deaf.
I was reminded of this today on a flatulent sort of day in trial. My client faces trial in an arson case. He stands accused of setting a residence on fire in the dead of night as the homeowner slept. We have pleaded not guilty, and are now about the solemn work of trial.
Although I live in a tiny state, I rarely try cases in the same courthouse twice in a given year. I don't generally wear well, and after one case ends, I prefer to head to another town. I doubt that absence makes anyone's heart really grow fonder as to me, but I know that familiarity breeds contempt. I sort of like the peripatetic life. The town I am now in is a nice waterfront community. At lunch I walk to a harbor to smell the sea.
Today I sat in the courtroom watching witnesses. From time to time I would object. The court's rulings mystified me. Sometimes the objections were sustained, but other times the court would say it did not hear me. I used the same tone throughout the proceedings. What gives?, I wondered. I didn't really give it a whole lot of thought as the prosecutor typically rephrased his questions after my objections.
Toward day's end, however, the judge told me that he liked it when people stood to raise objections. He understood, he said, that differing judges had differing practices, but he wanted me to stand. I noticed thereafter even an inch of elevation from my seat improved the court's hearing. I am not decorous enough to suit all who wear the robe. I need to work on that.
I apologized to the judge, of course. It has been eight or so years since I last tried a case before this particular judge. In the hurly-burly of trial it had not occurred to me to ask about his preference. I was so lost in the moment, I hadn't associated a quick, "Objection, leading," with bolting to my feet. But the judge gets what he wants in the land of decorum. I promised to do better, and I did.
The judge had nothing to say mid-day when a strange rumble issued from the jury box, however. I turned to a paralegal. "Was that what I thought it was?" My eyes were wide and mirth was tamped down with effort. "I think so," the paralegal said. And then it happened again, a loud, sonorous bit of flatulence, a.k.a., a fart, ripped through the room. We all did our best to ignore it, even the judge.
So while the court's ability to hear my objection appears somehow linked to the location of my butt, the work-product of a juror's rear went unnoticed. Justice is blind, my friends, and sometimes deaf.
Hey, Brother, Can You Spare $1,700?
Questions remain about the relationship between the Trial Lawyers College and the Spence Foundation. But that doesn't stop the fund-raising beat from tapping out a steady rhythm. Although the master, Gerry Spence, is retiring from the fray, he's still the college's most potent draw, and its most determined fundraiser.
Earlier in the month, college alums received a special appeal for funds from Spence. He's looking for 20 folks to commit to $1,700 each. The proceeds would be used to fund scholarships for public defenders to attend to the college's death penalty seminar scheduled for early June. Unless there are contributors, the seminar may be cancelled.
Here's the message. I am on the fence about contributing. I am sour on the college, but keen on assuring that there are well-trained lawyers to oppose the death penalty. Besides, for $1,700 I can my gift engraved on Spence's heart. I am not sure what that means, but it sounds nice.
The college is a flawed tool. But fighting the death penalty can be done even with a hammer.
Read on and decide for yourself whether to send a check
A message from Gerry Spence
Folks:
Don't read this if you can't stand another request for money. But this one can strike out at the killer of all killers -- the state.
The most important work we do is the Death Penalty Seminar in which we teach brave lawyers who work for so little, with so little, how to beat the evil specter wearing the black hood and carrying the killing scythe. We cannot survive in a society in which the state becomes the licensed killer of its own citizens, which, in the end, reduces us all to killers since together we are the state.
Public defenders have no money to attend our seminar. It will cost us about $1700 per student. My goal is to find twenty of our grads who will give a scholarship to twenty of these saints who are so despised by so many for the divine work that they do.
Please send your check right away. The seminar will begin June 12 if we aren't required to cancel it. Not much time. I will engrave your gift on my heart.
Love,Gerry
Send your check to P. O. Box 943, Jackson, WY 83001 or contact Laurie at info@triallawyerscollege.com
Call us at (307) 734-4430Forward this to a friend Unsubscribe to the list
TLC is a 501(c)(3) non-profit organization that does not pay any of its legal-faculty staff, including Gerry Spence. TLC's mission is to create better lawyers for the people and defenders of the accused against the corporate and government power structure.Trial Lawyers CollegeP. O. Box 943, Jackson, WY 83001O/ 307-734-4430 F/307-733-5248
Earlier in the month, college alums received a special appeal for funds from Spence. He's looking for 20 folks to commit to $1,700 each. The proceeds would be used to fund scholarships for public defenders to attend to the college's death penalty seminar scheduled for early June. Unless there are contributors, the seminar may be cancelled.
Here's the message. I am on the fence about contributing. I am sour on the college, but keen on assuring that there are well-trained lawyers to oppose the death penalty. Besides, for $1,700 I can my gift engraved on Spence's heart. I am not sure what that means, but it sounds nice.
The college is a flawed tool. But fighting the death penalty can be done even with a hammer.
Read on and decide for yourself whether to send a check
A message from Gerry Spence
Folks:
Don't read this if you can't stand another request for money. But this one can strike out at the killer of all killers -- the state.
The most important work we do is the Death Penalty Seminar in which we teach brave lawyers who work for so little, with so little, how to beat the evil specter wearing the black hood and carrying the killing scythe. We cannot survive in a society in which the state becomes the licensed killer of its own citizens, which, in the end, reduces us all to killers since together we are the state.
Public defenders have no money to attend our seminar. It will cost us about $1700 per student. My goal is to find twenty of our grads who will give a scholarship to twenty of these saints who are so despised by so many for the divine work that they do.
Please send your check right away. The seminar will begin June 12 if we aren't required to cancel it. Not much time. I will engrave your gift on my heart.
Love,Gerry
Send your check to P. O. Box 943, Jackson, WY 83001 or contact Laurie at info@triallawyerscollege.com
Call us at (307) 734-4430Forward this to a friend Unsubscribe to the list
TLC is a 501(c)(3) non-profit organization that does not pay any of its legal-faculty staff, including Gerry Spence. TLC's mission is to create better lawyers for the people and defenders of the accused against the corporate and government power structure.Trial Lawyers CollegeP. O. Box 943, Jackson, WY 83001O/ 307-734-4430 F/307-733-5248
Tuesday, May 25, 2010
Dick's Wife Joins Fray
How desperate is Attorney General Richard Blumenthal in his race for the Senate? Yesterday, he unveiled his wife, Cynthia, who wrote an email to supporters asking for money.
Waint a minute! She's got a million dollar in her checking account according to financial disclosure forms. The family is worth at least $60 million. What's she kicking in? I am as lilkely to click Paypal for this campaign as I am to declare I spent time in Vietnam.
I found the email odd. One of the things I had respected about Blumenthal is the privacy with which he has shrouded his family. Now he is throwing his wife into the, er, forgive the metaphor, front lines of the battle.
Oh, my. What has become of Dickie?
Waint a minute! She's got a million dollar in her checking account according to financial disclosure forms. The family is worth at least $60 million. What's she kicking in? I am as lilkely to click Paypal for this campaign as I am to declare I spent time in Vietnam.
I found the email odd. One of the things I had respected about Blumenthal is the privacy with which he has shrouded his family. Now he is throwing his wife into the, er, forgive the metaphor, front lines of the battle.
Oh, my. What has become of Dickie?
Monday, May 24, 2010
Try Three Sisters, There's Less Dead Wood There
An email arrived this evening from a relatively new lawyer. The question was simple. Where can a new lawyer go for instruction, guidance and the succor of those with like minds? The lawyer wants help finding bright stars in the law's dark nights. He asked whether I would recommend attending the Trial Layer's College in Wyoming, or whether I had another recommendation.
I do not recommend the Trial Lawyers College. I spent three manic years involved with the college first as student, then as staff. This was back in the day, when Gerry Spence cast a long shadow in the big barn. The law's legends were found in Wyoming back then. Garvin Isaacs, Racehorse Haynes, Roy Black, Paul Luvera, Robert Fogelnest came and open their veins, showing us the blood of lawyers who had faced dragons and lived to tell about it.
But a funny thing happened as one year led to another. The staff became inbred. Orthodoxy took root. The middle of the pack sought the shelter of Spence's approval; he learned to pluck just the right strings of need in those content to play another man's fiddle. I saw proud men quiver with fear that they would not get a seat on the board. In time, the wild call of the full-blooded wolf became the stifled yelp of a pup. Giants used to roam Thunderhead Ranch. I walked in awe of them. They do no longer. The middle of the pack reigns triumphant. I visited last year and was startled by the transformation.
Spence has stepped down from public leadership of the college. But his shadow walks in the new leadership. A board purged of critics rallies round the barn now, hooting, hollering, and carrying on as though mere noise were magic. The college has become technique, another church passing a collection plate to those who hope to purchase something like redemption. In the absence of Spence's leadership, there is no real coherent intellectual center to the college. Just memories.
So I do not recommend the college or any of the many programs it sponsors around the country. At least I do not recommend it for learning about how to be a better lawyer. The programs are good for bonding and networking: indeed, a weekend at the college is perhaps the most powerful social networking experience on the continuing legal education market: Call it Twitter with a pulse. I made close friends there and those friendships, at least a few of them, survive the unkind works I say about the place.
To become a better lawyer, however, I recommend hooking up with Charles Abourezk of South Dakota. He was a classmate of mine at TLC and went on to become a staff member. He left the college when questions to this day still unanswered about the college's finances were ignored. Abourezk is one of the few men I know whom I would refer to as having spiritual depth and lawyerly acumen.
Charlie has not started a cult. You can't buy mugs with his name on them, or women's thongs emblazoned with a logo celebrating an institution dedicated to him. He walks quietly. You find him in unusual places.
Charlie will be hanging out with a new group called 3 Sisters and will be part of a program running September 30 to October 3, 2010, in Palm Springs. I know that is near the home of my anonymous writer this evening. The sisters are all TLC expatriates, and they have the baggage and history that comes of shedding an old skin. But to my mind, their program represents something new. Check them out here.
I do not recommend the Trial Lawyers College. I spent three manic years involved with the college first as student, then as staff. This was back in the day, when Gerry Spence cast a long shadow in the big barn. The law's legends were found in Wyoming back then. Garvin Isaacs, Racehorse Haynes, Roy Black, Paul Luvera, Robert Fogelnest came and open their veins, showing us the blood of lawyers who had faced dragons and lived to tell about it.
But a funny thing happened as one year led to another. The staff became inbred. Orthodoxy took root. The middle of the pack sought the shelter of Spence's approval; he learned to pluck just the right strings of need in those content to play another man's fiddle. I saw proud men quiver with fear that they would not get a seat on the board. In time, the wild call of the full-blooded wolf became the stifled yelp of a pup. Giants used to roam Thunderhead Ranch. I walked in awe of them. They do no longer. The middle of the pack reigns triumphant. I visited last year and was startled by the transformation.
Spence has stepped down from public leadership of the college. But his shadow walks in the new leadership. A board purged of critics rallies round the barn now, hooting, hollering, and carrying on as though mere noise were magic. The college has become technique, another church passing a collection plate to those who hope to purchase something like redemption. In the absence of Spence's leadership, there is no real coherent intellectual center to the college. Just memories.
So I do not recommend the college or any of the many programs it sponsors around the country. At least I do not recommend it for learning about how to be a better lawyer. The programs are good for bonding and networking: indeed, a weekend at the college is perhaps the most powerful social networking experience on the continuing legal education market: Call it Twitter with a pulse. I made close friends there and those friendships, at least a few of them, survive the unkind works I say about the place.
To become a better lawyer, however, I recommend hooking up with Charles Abourezk of South Dakota. He was a classmate of mine at TLC and went on to become a staff member. He left the college when questions to this day still unanswered about the college's finances were ignored. Abourezk is one of the few men I know whom I would refer to as having spiritual depth and lawyerly acumen.
Charlie has not started a cult. You can't buy mugs with his name on them, or women's thongs emblazoned with a logo celebrating an institution dedicated to him. He walks quietly. You find him in unusual places.
Charlie will be hanging out with a new group called 3 Sisters and will be part of a program running September 30 to October 3, 2010, in Palm Springs. I know that is near the home of my anonymous writer this evening. The sisters are all TLC expatriates, and they have the baggage and history that comes of shedding an old skin. But to my mind, their program represents something new. Check them out here.
Tell them Norm sent you. Hell, I may even come out of seclusion and attend the event myself. I miss Charlie. He has a lot to teach.
Dickie's Apology Just Doesn't Work
I am trying hard to like Richard Blumenthal. I really am. Over the weekend I called for an end to Dickiegate, trying to resign myself to the fact that this would-be Senator is a liar. I stumbled under the influence of some inchoate syllogism that went something like this:
Dick Blumenthal is a politician.
I wanted to reduce this to a mere truism. Put the lie aside and then focus on the bigger issues. Who best to send to the Senate, a man with decades of experience in public office, or the queen of wrestling? I was leaning toward Blumenthal.
But then Blumenthal sent an email apology of sorts last night to supporters. It reads as follows:
"At times when I have sought to honor veterans, I have not been as clear or precise as I should have been about my service in the Marine Corps Reserves,'' Blumenthal says. "I have firmly and clearly expressed regret and taken responsibility for my words. I have made mistakes and I am sorry. I truly regret offending anyone. I will always champion the cause of Connecticut's and our nation's veterans."
Oh, Dickie. Repeat these words: "I lied and I am ashamed." Or are you incapable of saying so? You lied, Dick. You got caught, Dick. You stood defiantly and claimed we who accuse you were wrong, Dick. Now that you've dicked around with the truth for a a week and found folks are still asking questions, you try to apologize? You two-faced lizard and momma's boy: Don't try to mail in a voucher for your integrity. Call another press conference and confess.
Go back to your fox hole, Dick. The one at Neverland. Go play with Michael Jackson and do your moral moon walking on someone else's stage.
Blumenthal's "apology" is about as satisfying as phone sex. Behind the image of words that are meant to entice is an unappealing ugliness that repels. Is this man without qualities afraid that if he stood before a camera and admitted he lied that no one would want him? He's a moral blimp hiding behind a poster of Captain America.
He's not sorry about anything other than having been caught with his pants down. I, on the other hand, am regretting having called for an end to Dickiegate. The man knows no shame. He is apparently incapable of genuine remorse. He's every bit the caricature of the wrestlers Linda McMahon, his Republican rival, puts on stage for the Worldwide Wrestling Federation.
Dick is a dope, and so am I for being willing to think him fit to be a Senator. The man belongs in a moral leper's colony.
Dick Blumenthal is a politician.
All politicians are liars.
Dick Blumenthal is a liar.I wanted to reduce this to a mere truism. Put the lie aside and then focus on the bigger issues. Who best to send to the Senate, a man with decades of experience in public office, or the queen of wrestling? I was leaning toward Blumenthal.
But then Blumenthal sent an email apology of sorts last night to supporters. It reads as follows:
"At times when I have sought to honor veterans, I have not been as clear or precise as I should have been about my service in the Marine Corps Reserves,'' Blumenthal says. "I have firmly and clearly expressed regret and taken responsibility for my words. I have made mistakes and I am sorry. I truly regret offending anyone. I will always champion the cause of Connecticut's and our nation's veterans."
Oh, Dickie. Repeat these words: "I lied and I am ashamed." Or are you incapable of saying so? You lied, Dick. You got caught, Dick. You stood defiantly and claimed we who accuse you were wrong, Dick. Now that you've dicked around with the truth for a a week and found folks are still asking questions, you try to apologize? You two-faced lizard and momma's boy: Don't try to mail in a voucher for your integrity. Call another press conference and confess.
Go back to your fox hole, Dick. The one at Neverland. Go play with Michael Jackson and do your moral moon walking on someone else's stage.
Blumenthal's "apology" is about as satisfying as phone sex. Behind the image of words that are meant to entice is an unappealing ugliness that repels. Is this man without qualities afraid that if he stood before a camera and admitted he lied that no one would want him? He's a moral blimp hiding behind a poster of Captain America.
He's not sorry about anything other than having been caught with his pants down. I, on the other hand, am regretting having called for an end to Dickiegate. The man knows no shame. He is apparently incapable of genuine remorse. He's every bit the caricature of the wrestlers Linda McMahon, his Republican rival, puts on stage for the Worldwide Wrestling Federation.
Dick is a dope, and so am I for being willing to think him fit to be a Senator. The man belongs in a moral leper's colony.
Flat Fees, Black Holes, And The Value Of Chaos
I've begun to wonder whether flat fees for legal services ought to be prohibited. Charging them leads to an almost inevitable conflict between lawyer and client. Perhaps lawyers should be required to charge hourly fees for their services.
Here's the issue in a nutshell: Once you've practice for a few years in a given area you get a pretty good idea of a typical case's complexity. A routine hand-to-hand narcotics sale, for example, is only so complicated. When someone seeks your representation, you have a pretty good feel for the value of this particular specimen of chaos insofar as your time is concerned. When it comes to charging a fee, then, you know what to charge.
A flat fee is a one-time payment for representation. It can also be a payment made in increments, with so much being charged for pre-trial work and then so-much due at the time of trial. A flat fee places a premium on efficiency. If you expect a case to take 40 hours of time to resolve, you know what to charge to cover your time.
But suppose a black hole opens up in the middle of the case? Suddenly you learn that the case is far from typical. Perhaps an unexpected legal issue arises, or the facts, once examined, yield some extraordinary wrinkle. Or maybe the client's family smothers you with calls and demands for meetings that amount to little more than social work. Once you take a case, you go where the facts and law lead. These trips can be lengthy and costly. For all your experience, you learn over and over and over again that there is no such thing as a typical case.
It is difficult to go back to a client once you realize you've not charged enough for all that is required. Some clients want to call all of the shots in case. No matter how many hours you spend preparing examination of witnesses, the client wants you to review it all with them. The client wants to tutor you on how to do your job. These lost hours add up. You are the surgeon required to explain what scalpel works best to a patient who will be anesthetized during your work.
There are cross-cutting incentives in a flat-fee case. The client has paid for a lawyer and wants her expectations, no matter how unreasonable or unnecessary from the perspective of the experienced lawyer's judgment, met. The lawyer, on the other hand, has an incentive in effectively presenting the case in as efficient and cost-effective manner as possible. Both client and lawyer can err given these conflicting imperatives. A client can demand too much; a lawyer can do too little. Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.
A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost. A demand to interview folks not actually present at the scene of the crime becomes a demand the client must reckon as necessary. A lawyer, paid hourly, can counsel against a fool's errand. But if the client insists, the lawyer can then choose either to accept the hourly fee or ask the court to be relieved from a case if the client's demands become repugnant or irrational.
The problem with charging hourly is that most folks in the middle-class and lower-middle class really cannot afford to pay for the representation they want and to which they are entitled. It takes many hidden hours to prepare a case. There are witness statements to review, statutes to ponder, rules of evidence to consider. And how, I wonder, would you bill for the tossing and turning at the midnight hour, when some of the most creative work for trial is really done? I rarely sleep well during evidence at trial. My wife tells me I argue throughout the night. But the sleep work pays because it often seems in court as if I merely reciting lines already prepared and written by some secret hand. Is there a rate for unconscious processing?
There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.
Most folks cannot afford to pay for they want, and most lawyers cannot afford to give what is demanded. Charging hourly rates might provide both lawyer and client with a means of managing a relationship that shouldn't really be about money at all.
Here's the issue in a nutshell: Once you've practice for a few years in a given area you get a pretty good idea of a typical case's complexity. A routine hand-to-hand narcotics sale, for example, is only so complicated. When someone seeks your representation, you have a pretty good feel for the value of this particular specimen of chaos insofar as your time is concerned. When it comes to charging a fee, then, you know what to charge.
A flat fee is a one-time payment for representation. It can also be a payment made in increments, with so much being charged for pre-trial work and then so-much due at the time of trial. A flat fee places a premium on efficiency. If you expect a case to take 40 hours of time to resolve, you know what to charge to cover your time.
But suppose a black hole opens up in the middle of the case? Suddenly you learn that the case is far from typical. Perhaps an unexpected legal issue arises, or the facts, once examined, yield some extraordinary wrinkle. Or maybe the client's family smothers you with calls and demands for meetings that amount to little more than social work. Once you take a case, you go where the facts and law lead. These trips can be lengthy and costly. For all your experience, you learn over and over and over again that there is no such thing as a typical case.
It is difficult to go back to a client once you realize you've not charged enough for all that is required. Some clients want to call all of the shots in case. No matter how many hours you spend preparing examination of witnesses, the client wants you to review it all with them. The client wants to tutor you on how to do your job. These lost hours add up. You are the surgeon required to explain what scalpel works best to a patient who will be anesthetized during your work.
There are cross-cutting incentives in a flat-fee case. The client has paid for a lawyer and wants her expectations, no matter how unreasonable or unnecessary from the perspective of the experienced lawyer's judgment, met. The lawyer, on the other hand, has an incentive in effectively presenting the case in as efficient and cost-effective manner as possible. Both client and lawyer can err given these conflicting imperatives. A client can demand too much; a lawyer can do too little. Discontent lurks at the periphery of every flat fee case once a black hole opens up, sucking time out of the world as if there were an infinite amount of it to be had.
A far better course is to charge an hourly rate. Negotiate a rate that reflects the complexity of the case, your experience and what the market bears in your area. In that case, a client is forced to consider the benefit of each additional increment of cost. A demand to interview folks not actually present at the scene of the crime becomes a demand the client must reckon as necessary. A lawyer, paid hourly, can counsel against a fool's errand. But if the client insists, the lawyer can then choose either to accept the hourly fee or ask the court to be relieved from a case if the client's demands become repugnant or irrational.
The problem with charging hourly is that most folks in the middle-class and lower-middle class really cannot afford to pay for the representation they want and to which they are entitled. It takes many hidden hours to prepare a case. There are witness statements to review, statutes to ponder, rules of evidence to consider. And how, I wonder, would you bill for the tossing and turning at the midnight hour, when some of the most creative work for trial is really done? I rarely sleep well during evidence at trial. My wife tells me I argue throughout the night. But the sleep work pays because it often seems in court as if I merely reciting lines already prepared and written by some secret hand. Is there a rate for unconscious processing?
There is no good way to charge for legal services, I am persuaded. Clients come in need. They are afraid and angry. They want a hero, a savior, a warrior. You offer them what you can. Most often it is enough. But sometimes it is not. A client grows disenchanted, angry, they want what you cannot give. It is a risky thing to agree to represent a person in crisis. You cannot tell where people will turn in the dark of night. What to charge for this work is a topic about which I am not at peace.
Most folks cannot afford to pay for they want, and most lawyers cannot afford to give what is demanded. Charging hourly rates might provide both lawyer and client with a means of managing a relationship that shouldn't really be about money at all.
Sunday, May 23, 2010
Are We All Natural Born Killers?
After a week filled with an unusual amount of chaos, I was drawn, naturally, to another viewing of Oliver Stone's Natural Born Killers for relaxation last night. Perhaps someone out there can help me understand the film. I am not sure I get it.
I could watch Woody Harrelson cite check a legal brief and find it interesting. He's a great actor. He's got that loose screw demeanor of the wacky kid in the back row in third grade. Anything can happen, and when it does, I'll probably root for him, and given him my lunch money, too.
Predictably enough, I was rooting for him to kill in Natural Born Killers. When he and his lover went on a three-week killing spree, I started humming bars from an old song about Bonnie and Clyde. Then my thoughts turned to John Dillinger. Outlaws as anti-heroes makes sense to me. I sometimes wonder whether that is the appeal of the criminal law. Nothing my clients do surprises me; I am capable of any crime.
Mickey and Mallory are lovers. Their world revolves around the sense of safety they create for one another. But all around is death and destruction. They are unmoved by the suffering they cause, even exulting in it. Both come from places of special pain and hurt. Frequent flashbacks to the horrors of their childhood together with surreal images of demons presently at play in their acts and deeds give the film a surreal quality. Somehow, despite all the harm they cause, you can't help but root for them. The characters in the film representing law and order are unsympathetic, banal in their seeming goodness. Good become evil, and evil good.
I liked the manic zaniness of the film. Something about passion unbound and bursting every expected boundary correspondeds to the workaday world in which I find myself as a lawyer. How often do I see folks looking for love in all the wrong places, and, improbably finding it, and then needing protection from the conforming pressures of a self-righteous mob? How often does the press circle and feed, like vultures, on the sorrow of others, looking for titillating pleasure in telling tales about death?
As I watched the reporter in the film shadow dance on the boundary between good and evil, I thought of a member of the Connecticut press corps. A client of mine is locked up on a huge pretextual bond. He stands charged with assaulting a former girlfriend. It is a routine domestic charge. But things turned anything but routine when a contract shooter took aim at the girlfriend. Federal authorities have arrested the shooter, and charged him with attempted murder for hire. Rumors swirl that my client will soon be charged. This reporter calls me, sends me text messages, leaves phone messages for me at work and on my cell phone. He seems besotted and inflamed by a lust-like fascination with this case. I do not return his calls. There's something uncannily disturbing about this young man's interest in the case. Who, I wonder, does he wish he had the nerve to kill?
Natural Born Killers is brilliant satire, I've concluded. It lays bare the subterranean pleasures we act upon but do not dare acknowledge. Crime stories sell. Television is awash in tales about evil. We cannot get enough of the anti-heroes in our midst. Mickey and Mallory aren't strangers. They are us. Maybe I was drawn to the movie simply to be among friends.
I could watch Woody Harrelson cite check a legal brief and find it interesting. He's a great actor. He's got that loose screw demeanor of the wacky kid in the back row in third grade. Anything can happen, and when it does, I'll probably root for him, and given him my lunch money, too.
Predictably enough, I was rooting for him to kill in Natural Born Killers. When he and his lover went on a three-week killing spree, I started humming bars from an old song about Bonnie and Clyde. Then my thoughts turned to John Dillinger. Outlaws as anti-heroes makes sense to me. I sometimes wonder whether that is the appeal of the criminal law. Nothing my clients do surprises me; I am capable of any crime.
Mickey and Mallory are lovers. Their world revolves around the sense of safety they create for one another. But all around is death and destruction. They are unmoved by the suffering they cause, even exulting in it. Both come from places of special pain and hurt. Frequent flashbacks to the horrors of their childhood together with surreal images of demons presently at play in their acts and deeds give the film a surreal quality. Somehow, despite all the harm they cause, you can't help but root for them. The characters in the film representing law and order are unsympathetic, banal in their seeming goodness. Good become evil, and evil good.
I liked the manic zaniness of the film. Something about passion unbound and bursting every expected boundary correspondeds to the workaday world in which I find myself as a lawyer. How often do I see folks looking for love in all the wrong places, and, improbably finding it, and then needing protection from the conforming pressures of a self-righteous mob? How often does the press circle and feed, like vultures, on the sorrow of others, looking for titillating pleasure in telling tales about death?
As I watched the reporter in the film shadow dance on the boundary between good and evil, I thought of a member of the Connecticut press corps. A client of mine is locked up on a huge pretextual bond. He stands charged with assaulting a former girlfriend. It is a routine domestic charge. But things turned anything but routine when a contract shooter took aim at the girlfriend. Federal authorities have arrested the shooter, and charged him with attempted murder for hire. Rumors swirl that my client will soon be charged. This reporter calls me, sends me text messages, leaves phone messages for me at work and on my cell phone. He seems besotted and inflamed by a lust-like fascination with this case. I do not return his calls. There's something uncannily disturbing about this young man's interest in the case. Who, I wonder, does he wish he had the nerve to kill?
Natural Born Killers is brilliant satire, I've concluded. It lays bare the subterranean pleasures we act upon but do not dare acknowledge. Crime stories sell. Television is awash in tales about evil. We cannot get enough of the anti-heroes in our midst. Mickey and Mallory aren't strangers. They are us. Maybe I was drawn to the movie simply to be among friends.
Saturday, May 22, 2010
Enough Dickiegate Already
It's time to put Dickiegate behind us. Richard Blumenthal is a politician. Period. Did we expect virtue? Did we expect him to be any different than all the other members of the political class who subscribe to the credo that spin is everything? Did we expect this Dick to be any different than all the other dicks wandering around Washington?
I enjoyed the spectacle this past week as much as anyone: Blumenthal lied about his Vietnam War record. Then he blamed others for pointing it out. His spin doctors went into overdrive, and a counter-offensive was launched. It felt like the moral equivalent of the Wall Street bailout: Expensive games played by folks who live inside a bubble where nothing matters so much as wealth, power and the perception of goodness.
Let's just vet it and say it loud and clear: Richard Blumenthal is a two-faced shit head, a trust fund baby lip-synching Bruce Springsteen and trying to be one of the guys. He's got the swagger of a well-kept momma's boy. Not an ounce of fat to spare, he works 24-7 at cultivating a flawless image of perfection. His compulsion to make himself daily into the epigone of some private version of virtue is a sure sign of a character flaw drawing its energy from some dark star. He's a prig, a man without qualities, a blue-blooded buffoon. He is all these things and more.
But he is still my candidate for the U.S. Senate.
I would have trusted Blumenthal more if he could simply admit that he exaggerated. We've all sinned and fallen short of the glory of whatever god or goddess we serve. In his great zeal to serve veterans he over-identified with them. I get that. It does not make him a moral criminal. It simply makes him weak. A simple "I'm sorry" would have sufficed. Can there really be an excess of love and regard for those who serve at risk of death and disfigurement?
But instead of honesty, we got the predictable behavior of a member of the political class: lies, spin, casting blame, silly posturing. Blumenthal looked like a clown this week. In this regard, he looked no different than his Republican candidate for the seat, Linda McMahon, the madonna of steroid swigging wrestlers in the Worldwide Wrestling Federation. And I would rather share a foxhole, even an imaginary foxhole, with Blumenthal than with Robert Simmons, the ex-CIA spy whose trade craft for a decade or more was lies, deception and a two-dimensional embrace of orders.
Who do you want casting votes on the larger issues of the day: A wealthy wrestling promoter with the moral sense of a drug-dealing pornographer? Or a man with decades of experience in public service who, despite his flawed character, has devoted a lifetime to understanding public policy issues and leadership?
We were reminded of a painful lesson last week. The folks who often seek office do so for reasons that most of us would regard as pathological. Harold Lasswell wrote a classic about those who seek powers in the 1930s, Psychopathology and Politics. He explored what quirks compelled a person to make the largely irrational choice to serve in office. Politicians, we know, but refuse to acknowledge, typically don't seek office because they are good people at peace with themselves. They seek office because inner demons drive them outside the comfort zones most of us accept as the norm. Blumenthal is a politician. Last week, he took his demon out for a walk. It wasn't pretty.
I did not vote for many years. The candidates seemed then all the same: Vainglorious nabobs squabbling over issues that rarely mattered. It seemed a continuation of the sort of games that the cool kids played in high school. Some of them really wanted to be president of the senior class. They worked at it. They went to the same school I attended, but their concerns were otherworldly. I happily let them waste their time seeking to sit atop a heap I could not wait to flee.
But public office is different, I learned. Refusing to vote doesn't mean that the office will go unfilled. The people who play the game get the spoils. Their voices are the ones that are heard. A few years back, and with reluctance, I started to vote again. I learned that selecting a candidate was a lot like buying a used car. I rarely love any of the models on the lot. I buy what I can afford and hope it will take me where I want to go.
It delights me that Blumenthal's imaginary moral engine blew this week. He's not the Porsche he thinks he is. It's fun to rant at him and remind him of his hypocrisy. But at the end of the day, we still will elect a Senator to replace Chris Dodd in November. I'd happily put Blumenthal in the Senate with my vote. He's the best candidate for the job. He's the most capable politician of the lot, whatever that says. So I will send him to the Senate without reservation.
I just won't invite the man to dinner.
I enjoyed the spectacle this past week as much as anyone: Blumenthal lied about his Vietnam War record. Then he blamed others for pointing it out. His spin doctors went into overdrive, and a counter-offensive was launched. It felt like the moral equivalent of the Wall Street bailout: Expensive games played by folks who live inside a bubble where nothing matters so much as wealth, power and the perception of goodness.
Let's just vet it and say it loud and clear: Richard Blumenthal is a two-faced shit head, a trust fund baby lip-synching Bruce Springsteen and trying to be one of the guys. He's got the swagger of a well-kept momma's boy. Not an ounce of fat to spare, he works 24-7 at cultivating a flawless image of perfection. His compulsion to make himself daily into the epigone of some private version of virtue is a sure sign of a character flaw drawing its energy from some dark star. He's a prig, a man without qualities, a blue-blooded buffoon. He is all these things and more.
But he is still my candidate for the U.S. Senate.
I would have trusted Blumenthal more if he could simply admit that he exaggerated. We've all sinned and fallen short of the glory of whatever god or goddess we serve. In his great zeal to serve veterans he over-identified with them. I get that. It does not make him a moral criminal. It simply makes him weak. A simple "I'm sorry" would have sufficed. Can there really be an excess of love and regard for those who serve at risk of death and disfigurement?
But instead of honesty, we got the predictable behavior of a member of the political class: lies, spin, casting blame, silly posturing. Blumenthal looked like a clown this week. In this regard, he looked no different than his Republican candidate for the seat, Linda McMahon, the madonna of steroid swigging wrestlers in the Worldwide Wrestling Federation. And I would rather share a foxhole, even an imaginary foxhole, with Blumenthal than with Robert Simmons, the ex-CIA spy whose trade craft for a decade or more was lies, deception and a two-dimensional embrace of orders.
Who do you want casting votes on the larger issues of the day: A wealthy wrestling promoter with the moral sense of a drug-dealing pornographer? Or a man with decades of experience in public service who, despite his flawed character, has devoted a lifetime to understanding public policy issues and leadership?
We were reminded of a painful lesson last week. The folks who often seek office do so for reasons that most of us would regard as pathological. Harold Lasswell wrote a classic about those who seek powers in the 1930s, Psychopathology and Politics. He explored what quirks compelled a person to make the largely irrational choice to serve in office. Politicians, we know, but refuse to acknowledge, typically don't seek office because they are good people at peace with themselves. They seek office because inner demons drive them outside the comfort zones most of us accept as the norm. Blumenthal is a politician. Last week, he took his demon out for a walk. It wasn't pretty.
I did not vote for many years. The candidates seemed then all the same: Vainglorious nabobs squabbling over issues that rarely mattered. It seemed a continuation of the sort of games that the cool kids played in high school. Some of them really wanted to be president of the senior class. They worked at it. They went to the same school I attended, but their concerns were otherworldly. I happily let them waste their time seeking to sit atop a heap I could not wait to flee.
But public office is different, I learned. Refusing to vote doesn't mean that the office will go unfilled. The people who play the game get the spoils. Their voices are the ones that are heard. A few years back, and with reluctance, I started to vote again. I learned that selecting a candidate was a lot like buying a used car. I rarely love any of the models on the lot. I buy what I can afford and hope it will take me where I want to go.
It delights me that Blumenthal's imaginary moral engine blew this week. He's not the Porsche he thinks he is. It's fun to rant at him and remind him of his hypocrisy. But at the end of the day, we still will elect a Senator to replace Chris Dodd in November. I'd happily put Blumenthal in the Senate with my vote. He's the best candidate for the job. He's the most capable politician of the lot, whatever that says. So I will send him to the Senate without reservation.
I just won't invite the man to dinner.
Is Jack Weinstein Running For Congress?
This past week, an interest group made an assertion I find impossible to believe: Three quarters of those accused of possessing child pornography have actually abused children. Almost every single one of the men I have represented in criminal cases arising from the possession of such images is guilty of far less. Most are simply curiously, a few suffer other, related psychological maladies. In the dozens of sex offense cases I've handled, I have yet to see the equivalent of pornographic reefer madness.
If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.
The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.
Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.
But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?
Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.
That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.
Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.
This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.
I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.
We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.
We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.
If you have not seen the film Reefer Madness, check it out. It's a 1936 propaganda film about the dangers of smoking marijuana. Marijuana, you see, is the gateway drug of the masses. Start with weed, and end up choking on far more serious drugs. The descent to madness starts with but a single puff. The line between fact and fear is easily blurred.
The line is erased today when it comes to sex offenses. One of the primary culprits blurring that line is the National Center for Missing and Exploited Children. Ernie Allen, president of NCMEC, recently told The New York Times: "Real children are harmed in the production of these images and these same children are harmed every time these images are downloaded and viewed." He presumably gets paid a decent sum for uttering this specious idiocy.
Yes, real children, when they are used to produce a film or photograph, are harmed. The production of child pornography misuses children and should be a crime. But the children are not harmed anew when, in some mildewy basement thousands of miles away, a shamed-faced man sneaks a peak at the images. To suggest otherwise is to live in a fool's paradise.
But opposing sex offenses is a cheap and easy way to score points politically. So every time lawmakers want to feel good about something, they slap a new law, a new restriction, a new mandatory minimum sentence on those accused of sex crimes. Child sex, I have said before and I will repeat again, is the new crack. We want to stamp it out, so we criminalize it. Just when it begins to dawn on folks that the war on drugs really doesn't work, we start a new moral crusade. What is it about our political culture that requires always that there be a villain, some other than we can attack to displace all that makes us uneasy?
Few judges have the courage to call this madness out and to refuse to go along with the charade we call justice. It is not justice to put a man in prison for looking at pictures. It is not justice to lock away a young man for flirting with a police officer pretending to be 14-year-old runway model in heat. Justice requires individual assessments of harm and risk. Most judges, however, approach the task of sentencing like assembly-line workers. Along comes a defendant, the judge looks at the instruction manual produced by lawmakers, and then the judge clips the defendant so that he fits the image the cookie cutter yields. This sort of judging brings the judiciary into disrepute.
That's why I loved this morning's story about Jack B. Weinstein, an 88-year-old federal judge in Brooklyn. Weinstein's been on the bench for 43 years. When he sees a law that is offensive to justice, he refuses to enforce it. Oh, that President Barack Obama were to find a few more Weinsteins to put on the bench. Instead, we get bloodless automatons like Elena Kagan.
Weinstein has refused to impose mandatory minimum sentences when the sentence did not fit the defendant. He has dismissed cases when he thought the Government's charges were a mockery of justice. He takes a robust view of judging, and refuses to do unnecessary harm to those accused.
This makes Weinstein lawless in the eyes of many. A judge is merely to apply the law, not make it. We want lawmakers, after due deliberation and consideration of societal norms, to pass laws. Judges don't have the same fact finding power as lawmakers do. They ought not to overstep and substitute their judgment for those of lawmakers.
I get all that, and in general I support a limited view of the judiciary. But I simply have little confidence in the wisdom of legislators. They too easily succumb to the self-righteous blandishments of groups such as NCMEC. The separation of powers ought not to yield a regime in which blind passion neuters reason.
We used to permit juries to nullify the law when they thought it was wrong. In the early twentieth century, the Supreme Court forbade the practice. We need to rethink that rule. Shouldn't juries have a say in what is done in their name? Judge Weinstein plans to do what trial lawyers regard as the unthinkable in a child pornography trial: He is going to tell the jury what penalty the defendant faces if convicted. That practice almost never occurs. We make infants of jurors all the time, telling them lies and half truths, and then declaring we have done justice. God bless Jack Weinstein for refusing to play charades with the lives of others.
We need more jack Weinsteins on the bench. At least, I think we do. We've a few too many fools in Congress, and far too many crusading for the right thing but using he wrong means.
Friday, May 21, 2010
Dead Man Walking
I was shot to death at about 12:15 this afternoon in a courtroom in New Britain, Connecticut. I saw both barrels take aim. I felt hatred as the trigger was pulled. I was no more than meat to the killer. She lacked any remorse for my murder. It was pure revenge for her. She shot me, and then she walked away, feeling only satisfaction and cold fury.
At least that is how it felt to me as I left the courtroom. I represent the man accused of shooting a loved one of hers through the head, killing him instantly. The police believe it was gang related.
This morning was a pre-trial, a discussion about the case behind closed doors with the judge and prosecutor about what information the state is obliged to turn over prior to trial. In the course of these discussions, judges tries to broker plea bargains. In this case, there shall be no deals. We have plead not guilty, and we mean it.
I appeared briefly in open court with my client. He was led out from a cell in a prison jump suit, a multi-million dollar bond assuring that he will be behind bars until his case is tried. The law may say that he stands cloaked in the presumption of innocence, but the chains he wore spoke otherwise. He is an inmate now, learning to shuffle the shuffle of a restrained animal. He is younger than my youngest child, and already he looks broken.
We continued the case for several months. We will meet one last time to make sure that the case is ready for trial. My client is led away by men in uniform and put back in a cell hidden in the basement of the courthouse.
The victim's family comes to every court appearance and sits in silent vigil. I try to avoid them out of respect for what they have lost and due to an understanding that I cannot help but look evil to them. I have been retained to defend the man the state thinks killed a son, a brother and a lover. Because the state has charged my client, the victim's family focuses its anger on him, and on me.
This morning, the family and I arrived at the courtroom's exit at the same moment as court adjourned. I paused and gestured for them to go ahead of me. I forced a respectful smile. I had hoped they might see me as something other than the devil's messenger.
But the double barrel violence of the stare with which one woman greeted me told me all I need to know. I am death, and should be dead. I stand instead of the boy they have buried. Murderous rage is at loose.
A courtroom is often a place of sublimated violence. We re-enact the very worst events that occur in dark places. It should not have surprised me to see violence in the eyes of a stranger today. But it did. It is the end of a long week. I had let my guard down and sought simply to float into rest.
But there is no rest for those broken by rage and sorrow. I know that, but I did not want to remember it. I stumbled into an ambush I could have avoided. For a moment, I was a dead man, and it did not feel good.
At least that is how it felt to me as I left the courtroom. I represent the man accused of shooting a loved one of hers through the head, killing him instantly. The police believe it was gang related.
This morning was a pre-trial, a discussion about the case behind closed doors with the judge and prosecutor about what information the state is obliged to turn over prior to trial. In the course of these discussions, judges tries to broker plea bargains. In this case, there shall be no deals. We have plead not guilty, and we mean it.
I appeared briefly in open court with my client. He was led out from a cell in a prison jump suit, a multi-million dollar bond assuring that he will be behind bars until his case is tried. The law may say that he stands cloaked in the presumption of innocence, but the chains he wore spoke otherwise. He is an inmate now, learning to shuffle the shuffle of a restrained animal. He is younger than my youngest child, and already he looks broken.
We continued the case for several months. We will meet one last time to make sure that the case is ready for trial. My client is led away by men in uniform and put back in a cell hidden in the basement of the courthouse.
The victim's family comes to every court appearance and sits in silent vigil. I try to avoid them out of respect for what they have lost and due to an understanding that I cannot help but look evil to them. I have been retained to defend the man the state thinks killed a son, a brother and a lover. Because the state has charged my client, the victim's family focuses its anger on him, and on me.
This morning, the family and I arrived at the courtroom's exit at the same moment as court adjourned. I paused and gestured for them to go ahead of me. I forced a respectful smile. I had hoped they might see me as something other than the devil's messenger.
But the double barrel violence of the stare with which one woman greeted me told me all I need to know. I am death, and should be dead. I stand instead of the boy they have buried. Murderous rage is at loose.
A courtroom is often a place of sublimated violence. We re-enact the very worst events that occur in dark places. It should not have surprised me to see violence in the eyes of a stranger today. But it did. It is the end of a long week. I had let my guard down and sought simply to float into rest.
But there is no rest for those broken by rage and sorrow. I know that, but I did not want to remember it. I stumbled into an ambush I could have avoided. For a moment, I was a dead man, and it did not feel good.
Feeding Five Thousand On A Lawyer's Song
There was a moment, however fleeting, in Scott Turow's latest novel, Innocent, in which I thought him near perfect. He tip-toed to the very cusp of the reality of what it is to practice law in the private sector. He peered into the abyss.
"Winning appeals was a rarity for a defense lawyer," he writes. "Tooley had been setting up his client for another ten grand for a cert petition to the state supreme court." The lawyer was about to charge a fee, an event almost never portrayed with verisimilitude in fiction.
Turow, omniscient in both point of view and the law's ambiguity, was narrating a scene in which a prisoner was being debriefed by prosecutors. Just for an instant, the calculating machinations of a lawyer setting a fee were revealed. How would Turow render this, what insight could he offer on this difficult and necessary task?
"At last," I thought. "The reality of the practice of law rendered by a master craftsman." But this fleeting glimpse was soon overtaken by the merits of Turow's tale. In a flash, this gritty glimpse of reality was overtaken by plot and character. There are worse fates. A door, opened for an instant, was slammed shut.
I was reminded of this when listening to Scott Simon's interview of Turow at the Smithsonian Institution in Washington, D.C. Turow is self-effacing and honest. After the success of Presumed Innocent in the late 1980s, Turow has lived a dream-like life as a lawyer. He has no financial worries. He can do what he likes. He conceded, to Simon, that he doesn't practice law as virtually every other lawyer does -- tethered to a time sheet or a phone in search of next week's payroll. Turow practices law like a fictional character -- without regard to the financial consequences of what it takes to survive.
Despite press reports to the contrary, the economy is still gasping for air. So, too, are many lawyers. I spoke to a lawyer in California not long ago who mentioned that law practices have been dropping like flies in her town. Several offices in her building closed last month. She's had one new client in a month. Things don't seem that bad in Connecticut, but everywhere I go lawyers are shaking their heads: Clients aren't paying their bills. Lawyers, too, know quiet desperation.
Most ink spilled on the matter of how lawyers get paid is directed toward the crisis in indigent defense funding. Case loads are crippling, and the quality of representation suffers. There is revolt among public defenders who will not sacrifice their professional ethics to a society that wants to criminalize everything but refuses to accept financial responsibility for its folly. But few seem to write, and no fictional writers explore, the reality of making a living in the law's private trenches.
From my perspective, I envy public defenders. Sure, they are overworked and asked to perform miracles daily, feeding multitudes with too few loaves, and too little wine. Hell, they have it easy. Overwhelmed as they are, they at least know where their next meal is coming from. On the private side, the work load crushes just as completely, and the demand for the impossible is just as acute. I sat again one night this week with a client urging them to consider something other than suicide. The best I could offer: Hopelessness is itself an opportunity of sorts. Consider the fate of Odysseus, a man of many sorrows and wiles. Become Odysseus, I said. Suffering suicidal ideation? Read Homer and call me in the morning. This late into an evening of a day on which I did not make enough money to pay the day's bills.
I thought Michael Connelly's Lincoln Lawyer was going to lay bear the beating heart of the lawyer's struggle for economic survival, but he, too, looked away: His protagonist has cars, and a driver. These things appear as if by magic.
There is no magic in the practice of law for those in small firms. Ordinary people face extraordinary trouble. The troubles always come unawares, and there is almost never enough money to cover all that needs doing to respond. But they come nonetheless to the office of a lawyer asking for hope, help and a miracle. We are asked daily to feed five thousand out of a basket fit really for a small family.
A lawyer's day is rarely like life in Hobbes's state of nature, nasty, brutish and short. My days tend to be nasty, brutish and long. I grind a living, and support for the folks I employ, out of other people's sorrow. It becomes my sorrow. I do not pity myself in the process. I face the task and perform it. But I long, somehow, to find a light in literature to guide my path. I thought Turow held the torch for only a moment and my heart sang.
Anyone out there see nitty gritty of actually operating a law practice and surviving with soul in tact reflected well in literature? Tell me the author's name. In the middle of the night, I like a good read, when the phones stop ringing, and fear takes a brief rest.
"Winning appeals was a rarity for a defense lawyer," he writes. "Tooley had been setting up his client for another ten grand for a cert petition to the state supreme court." The lawyer was about to charge a fee, an event almost never portrayed with verisimilitude in fiction.
Turow, omniscient in both point of view and the law's ambiguity, was narrating a scene in which a prisoner was being debriefed by prosecutors. Just for an instant, the calculating machinations of a lawyer setting a fee were revealed. How would Turow render this, what insight could he offer on this difficult and necessary task?
"At last," I thought. "The reality of the practice of law rendered by a master craftsman." But this fleeting glimpse was soon overtaken by the merits of Turow's tale. In a flash, this gritty glimpse of reality was overtaken by plot and character. There are worse fates. A door, opened for an instant, was slammed shut.
I was reminded of this when listening to Scott Simon's interview of Turow at the Smithsonian Institution in Washington, D.C. Turow is self-effacing and honest. After the success of Presumed Innocent in the late 1980s, Turow has lived a dream-like life as a lawyer. He has no financial worries. He can do what he likes. He conceded, to Simon, that he doesn't practice law as virtually every other lawyer does -- tethered to a time sheet or a phone in search of next week's payroll. Turow practices law like a fictional character -- without regard to the financial consequences of what it takes to survive.
Despite press reports to the contrary, the economy is still gasping for air. So, too, are many lawyers. I spoke to a lawyer in California not long ago who mentioned that law practices have been dropping like flies in her town. Several offices in her building closed last month. She's had one new client in a month. Things don't seem that bad in Connecticut, but everywhere I go lawyers are shaking their heads: Clients aren't paying their bills. Lawyers, too, know quiet desperation.
Most ink spilled on the matter of how lawyers get paid is directed toward the crisis in indigent defense funding. Case loads are crippling, and the quality of representation suffers. There is revolt among public defenders who will not sacrifice their professional ethics to a society that wants to criminalize everything but refuses to accept financial responsibility for its folly. But few seem to write, and no fictional writers explore, the reality of making a living in the law's private trenches.
From my perspective, I envy public defenders. Sure, they are overworked and asked to perform miracles daily, feeding multitudes with too few loaves, and too little wine. Hell, they have it easy. Overwhelmed as they are, they at least know where their next meal is coming from. On the private side, the work load crushes just as completely, and the demand for the impossible is just as acute. I sat again one night this week with a client urging them to consider something other than suicide. The best I could offer: Hopelessness is itself an opportunity of sorts. Consider the fate of Odysseus, a man of many sorrows and wiles. Become Odysseus, I said. Suffering suicidal ideation? Read Homer and call me in the morning. This late into an evening of a day on which I did not make enough money to pay the day's bills.
I thought Michael Connelly's Lincoln Lawyer was going to lay bear the beating heart of the lawyer's struggle for economic survival, but he, too, looked away: His protagonist has cars, and a driver. These things appear as if by magic.
There is no magic in the practice of law for those in small firms. Ordinary people face extraordinary trouble. The troubles always come unawares, and there is almost never enough money to cover all that needs doing to respond. But they come nonetheless to the office of a lawyer asking for hope, help and a miracle. We are asked daily to feed five thousand out of a basket fit really for a small family.
A lawyer's day is rarely like life in Hobbes's state of nature, nasty, brutish and short. My days tend to be nasty, brutish and long. I grind a living, and support for the folks I employ, out of other people's sorrow. It becomes my sorrow. I do not pity myself in the process. I face the task and perform it. But I long, somehow, to find a light in literature to guide my path. I thought Turow held the torch for only a moment and my heart sang.
Anyone out there see nitty gritty of actually operating a law practice and surviving with soul in tact reflected well in literature? Tell me the author's name. In the middle of the night, I like a good read, when the phones stop ringing, and fear takes a brief rest.
Thursday, May 20, 2010
Semper Cry, Baby, And Other Tales
I really want to believe that the lipstick on Richard Blumenthal's collar is there as a result of the dry cleaner's carelessness, I really do. He has for so long proclaimed his love for the people of the state of Connecticut that I had come to hope he was as good as his sound bytes. But he looks like such a liar claiming to have served in Vietnam. Are all politicians dogs?
Blumenthal is a liar. Susan Bysiewicz is thrown out of the race for Attorney General, but keeps on swinging. A former spy for the Central Intelligence Agency stands on the sidelines calling everyone liars. Suddenly the campaign for U.S. Senate of a wresting promoter seems almost credible. I'm even getting calls suggesting that I run for something.
I know how Dorothy felt when she realized she was no longer in Kansas.
Blumenthal's press conference in the wake of The New York Time's front page story on his false claims to have served in Vietnam and to have been captain of Harvard's swim team was as depressing a read as I can remember. The man's resume glitters, in a predictable sort of way. Harvard. Yale law. Yale Law Journal. The White House. Cambridge University. Wealth. Why the almost compulsive need to lie?
Of course, he claims it was no lie at all. He merely misspoke, he says. And just maybe Bill Clinton did not have sex with Monica Lewinsky. What is "is" anyway?
Blumenthal's defiant claim that he will not permit anyone to impugn his record of service sounded like the good, old-fashioned, self-righteous Dick we've all come to know and wince over on the television screen. Blumenthal's moral outrage is sound and fury signifying an empty suit. We don't have to impugn his service record. After five deferments during the Vietnam War, his role as a Marine reservist passing out Toys for Tots while lesser mortals died speaks for itself.
Semper Cry, baby.
But as bad as he looked, he didn't really look any worse than Bysiewicz. After she was tossed out of the attorney general's race by the state Supreme Court because she could not satisfy the statutory requirement of ten year's experience practicing law, she is rumored to have set her sites on yet another statewide office, comptroller. She overestimates the esteem in which she is held by voters.
First, she was considering a run for governor. Then she decided to become attorney general. Now she wants to remain Secretary of the State. She's behaving as though she were to the manor born, and has only to decide which castle she should inhabit.
Bysiewicz has always been an optimist. Why, she observes, no less a lawyer than Elena Kagan, Supreme Court nominee, would be ineligible to serve as attorney general in Connecticut. After all, Kagan is about as familiar with a courtroom as Blumenthal is with a fox hole. We've a soft spot for ingenue's in Connecticut. Why Robert Chatigny was appointed to the federal bench without ever having tried a case to a verdict, and now he's slated for a promotion to the Second Circuit. I believe in miracles.
And what of Rob Simmons, candidate 007? He spent the week calling everyone a liar. I suppose he knows a little bit about truth. He spent a decade as a spy employed by the CIA. At least this is one candidate who is candid about having made a living telling lies. But that doesn't make him a national hero. It just makes him a man who knows that the truth can be bent to serve larger purposes.
At least Republican Senate hopeful Linda McMahon is honest about being a show woman. The queen of the World Wrestling Federation knows we are suckers. Nero's twin sister is alive and well and in Connecticut.
The only breath of fresh air in this swamp is the late entry of Ross Garber into the race for attorney general. But I almost afraid to pin any hopes on him. I'm afraid he might be a fox hole buddy of Dick's. Please, Ross. Don't be another hologram.
If this is the state of the politics in Connecticut, I want to move to Roswell, New Mexico. Area 54 and aliens seem mighty familiar just now.
Reprinted courtesy of the Connecticut Law Tribune.
Blumenthal is a liar. Susan Bysiewicz is thrown out of the race for Attorney General, but keeps on swinging. A former spy for the Central Intelligence Agency stands on the sidelines calling everyone liars. Suddenly the campaign for U.S. Senate of a wresting promoter seems almost credible. I'm even getting calls suggesting that I run for something.
I know how Dorothy felt when she realized she was no longer in Kansas.
Blumenthal's press conference in the wake of The New York Time's front page story on his false claims to have served in Vietnam and to have been captain of Harvard's swim team was as depressing a read as I can remember. The man's resume glitters, in a predictable sort of way. Harvard. Yale law. Yale Law Journal. The White House. Cambridge University. Wealth. Why the almost compulsive need to lie?
Of course, he claims it was no lie at all. He merely misspoke, he says. And just maybe Bill Clinton did not have sex with Monica Lewinsky. What is "is" anyway?
Blumenthal's defiant claim that he will not permit anyone to impugn his record of service sounded like the good, old-fashioned, self-righteous Dick we've all come to know and wince over on the television screen. Blumenthal's moral outrage is sound and fury signifying an empty suit. We don't have to impugn his service record. After five deferments during the Vietnam War, his role as a Marine reservist passing out Toys for Tots while lesser mortals died speaks for itself.
Semper Cry, baby.
But as bad as he looked, he didn't really look any worse than Bysiewicz. After she was tossed out of the attorney general's race by the state Supreme Court because she could not satisfy the statutory requirement of ten year's experience practicing law, she is rumored to have set her sites on yet another statewide office, comptroller. She overestimates the esteem in which she is held by voters.
First, she was considering a run for governor. Then she decided to become attorney general. Now she wants to remain Secretary of the State. She's behaving as though she were to the manor born, and has only to decide which castle she should inhabit.
Bysiewicz has always been an optimist. Why, she observes, no less a lawyer than Elena Kagan, Supreme Court nominee, would be ineligible to serve as attorney general in Connecticut. After all, Kagan is about as familiar with a courtroom as Blumenthal is with a fox hole. We've a soft spot for ingenue's in Connecticut. Why Robert Chatigny was appointed to the federal bench without ever having tried a case to a verdict, and now he's slated for a promotion to the Second Circuit. I believe in miracles.
And what of Rob Simmons, candidate 007? He spent the week calling everyone a liar. I suppose he knows a little bit about truth. He spent a decade as a spy employed by the CIA. At least this is one candidate who is candid about having made a living telling lies. But that doesn't make him a national hero. It just makes him a man who knows that the truth can be bent to serve larger purposes.
At least Republican Senate hopeful Linda McMahon is honest about being a show woman. The queen of the World Wrestling Federation knows we are suckers. Nero's twin sister is alive and well and in Connecticut.
The only breath of fresh air in this swamp is the late entry of Ross Garber into the race for attorney general. But I almost afraid to pin any hopes on him. I'm afraid he might be a fox hole buddy of Dick's. Please, Ross. Don't be another hologram.
If this is the state of the politics in Connecticut, I want to move to Roswell, New Mexico. Area 54 and aliens seem mighty familiar just now.
Reprinted courtesy of the Connecticut Law Tribune.
Wednesday, May 19, 2010
Garber To Make Run For Connecticut AG
Politics, they say in Connecticut, makes for strange fox hole fellows. So on the day after Hell reigned down on the hopes of the Democratic Party, a Republican plans to announce that it is official: He will be running for Attorney General. I am backing him all the way.
Ross Garber plans to make his bid official later today. (It's just past midnight as I write this.) I say, it's about time.
Garber is a Republican wunderkind who famously served as counsel to the office of the governor when John G. Rowland went up in flames. Garber handled a difficult job with distinction. His role, simply put, was to protect the institution of governor while the governor himself crashed and burned. While New Haven's Willie Dow tried and failed to keep the governor from going to federal prison, Ross was left the task of making sure the institution's interests remained in tact. He succeeded.
Until Tuesday, familial obligations kept Garber from tossing his hat in the ring. While Susan Bysiewicz played Hamlet -- "to be governor, or secretary of the state, that is the question" -- Ross sat by, deferring from declaring his interest because Susie B. is his sister in-law. But yesterday's ruling by the state Supreme Court declaring that she lacks the requisite statutory ten year's experience to serve as attorney general opens the field for Garber. He will file papers today, I am told by a reliable source.
I called for Byseiwicz to exit the stage six weeks ago on this site and in the pages of the Connecticut Law Tribune, where I write a weekly column. I've known Garber for almost twenty years. He clerked for a federal judge before whom I tried cases, and then went on to try cases himself as an associate at Shipman and Goodwin. We've gone toe to toe in court. He's an effective advocate, even if in our last meeting his client lost a million dollars or so in settlement of a multimillion dollar verdict. As trial lawyers say: Feces occur. I give him credit for trying cases. He walks the walk, and that is as high a praise as I will give a lawyer.
Garber could be just what the Republicans need to capitalize on the wreckage of the Democratic Party. After Bloody Tuesday, when the state Supreme Court declared Bysiewicz, a Democrat, unqualified to run for attorney general, and The New York Times, the nation's newspaper of record, called Blumenthal a liar for boasting about a nonexistent war record, the Democrats are vulnerable. This is the wrong year for a party to stump on a record of shady and questionable competence. Garber's actually been at the center of a storm and survived with his integrity in tact. We can no longer say that of Richard Blumenthal and his imaginary fox hole friends.
Garber should easily elbow from consideration the two Republcans who have declared their interest in the position, Martha Dean and John Pavia. Dean, who has run before, lacks gravitas, and Pavia, though a potent Fairfield county fundraiser, has no statewide support. Garber brings name recognition to a party in search of a star.
Can Garber go toe-to-toe with former state Senate Majority Leader George Jepsen, the Democrat's new front runner? Jepsen has support in the attorney general's office, where lawyers mutter about what to do in Blumenthal's wake. Jepsen is respected, and believed capable of providing leadership. He knows his way around Harford, too. He is a respected politician.
But this might just be the year for an anti-politician to take office. I am less interested in a glad-handing deal maker taking over as attorney general. Do we really want the ethic and mores of a legislator setting the tone in the AG's office? My sense is that voters might prefer a little transparency in the next AG: we thought we had that in Blumenthal, he certainly played at integrity.
So have at it, Ross. I wish you well. And as your campaign takes shape, do me a favor: Give that knucklehead Rob Simmons a call and tell him to shut up. Simmons is a dark horse Republican candidate for Dodd's Senate seat. He had great sport Tuesday calling both Blumenthal and Linda McMahon, the Republican front runner, liars. The trouble is, Simmons used to lie for a living. He's been given a stint in Congress by Connecticut voters. But we want more than a Tin Man in Washington. Simmons belongs on the sidelines.
Ethics in government is this year's top campaign issue. Simmons spent too many years working for the CIA as an operations officer, a.k.a., spy, to inspire confidence. Sure, he should be gleeful that the Blumenthal has stumbled and that the Linda McMahon is the queen of the World Wresting Federation. But we're not ready to put a secret agent in the Senate. We've had enough lies and deception for one year.
Ross Garber plans to make his bid official later today. (It's just past midnight as I write this.) I say, it's about time.
Garber is a Republican wunderkind who famously served as counsel to the office of the governor when John G. Rowland went up in flames. Garber handled a difficult job with distinction. His role, simply put, was to protect the institution of governor while the governor himself crashed and burned. While New Haven's Willie Dow tried and failed to keep the governor from going to federal prison, Ross was left the task of making sure the institution's interests remained in tact. He succeeded.
Until Tuesday, familial obligations kept Garber from tossing his hat in the ring. While Susan Bysiewicz played Hamlet -- "to be governor, or secretary of the state, that is the question" -- Ross sat by, deferring from declaring his interest because Susie B. is his sister in-law. But yesterday's ruling by the state Supreme Court declaring that she lacks the requisite statutory ten year's experience to serve as attorney general opens the field for Garber. He will file papers today, I am told by a reliable source.
I called for Byseiwicz to exit the stage six weeks ago on this site and in the pages of the Connecticut Law Tribune, where I write a weekly column. I've known Garber for almost twenty years. He clerked for a federal judge before whom I tried cases, and then went on to try cases himself as an associate at Shipman and Goodwin. We've gone toe to toe in court. He's an effective advocate, even if in our last meeting his client lost a million dollars or so in settlement of a multimillion dollar verdict. As trial lawyers say: Feces occur. I give him credit for trying cases. He walks the walk, and that is as high a praise as I will give a lawyer.
Garber could be just what the Republicans need to capitalize on the wreckage of the Democratic Party. After Bloody Tuesday, when the state Supreme Court declared Bysiewicz, a Democrat, unqualified to run for attorney general, and The New York Times, the nation's newspaper of record, called Blumenthal a liar for boasting about a nonexistent war record, the Democrats are vulnerable. This is the wrong year for a party to stump on a record of shady and questionable competence. Garber's actually been at the center of a storm and survived with his integrity in tact. We can no longer say that of Richard Blumenthal and his imaginary fox hole friends.
Garber should easily elbow from consideration the two Republcans who have declared their interest in the position, Martha Dean and John Pavia. Dean, who has run before, lacks gravitas, and Pavia, though a potent Fairfield county fundraiser, has no statewide support. Garber brings name recognition to a party in search of a star.
Can Garber go toe-to-toe with former state Senate Majority Leader George Jepsen, the Democrat's new front runner? Jepsen has support in the attorney general's office, where lawyers mutter about what to do in Blumenthal's wake. Jepsen is respected, and believed capable of providing leadership. He knows his way around Harford, too. He is a respected politician.
But this might just be the year for an anti-politician to take office. I am less interested in a glad-handing deal maker taking over as attorney general. Do we really want the ethic and mores of a legislator setting the tone in the AG's office? My sense is that voters might prefer a little transparency in the next AG: we thought we had that in Blumenthal, he certainly played at integrity.
So have at it, Ross. I wish you well. And as your campaign takes shape, do me a favor: Give that knucklehead Rob Simmons a call and tell him to shut up. Simmons is a dark horse Republican candidate for Dodd's Senate seat. He had great sport Tuesday calling both Blumenthal and Linda McMahon, the Republican front runner, liars. The trouble is, Simmons used to lie for a living. He's been given a stint in Congress by Connecticut voters. But we want more than a Tin Man in Washington. Simmons belongs on the sidelines.
Ethics in government is this year's top campaign issue. Simmons spent too many years working for the CIA as an operations officer, a.k.a., spy, to inspire confidence. Sure, he should be gleeful that the Blumenthal has stumbled and that the Linda McMahon is the queen of the World Wresting Federation. But we're not ready to put a secret agent in the Senate. We've had enough lies and deception for one year.
Tuesday, May 18, 2010
Liar, Liar, Lips On Fire
Richard Blumenthal, Harvard graduate, Yale Law School graduate, editor of the Yale Law Review, United States Supreme Court clerk, Attorney General of the State of Connecticut, and long-time lawyer told the world today that he regrets a poor choice of words. His statements about serving in Vietnam were taken out of context, he suggested. He really, really, really didn't mean to suggest he served in Vietnam; he only meant to speak truth: he served during Vietnam.
When all else fails blame the prepositions?
You be the judge:
When all else fails blame the prepositions?
You be the judge:
A Decent Regard For The Opinions Of Others
In yesterday's Supreme Court opinion ruling that juveniles may not be sentenced to life without possibility of parole in non-homicide cases, Justice Anthony Kennedy noted that life sentences for juveniles have been rejected "the world over." Kennedy wrote that the nations of the world find such sentences inconsistent with "basic principles of decency." To this, a rump of the Court cried foul. How dare we care what the world does! This is American, damn it. Love it or leave it.
Caring about what the world thinks is an unforgivable sin for the America First, crowd. Justice Clarence Thomas, the oral Sphinx of the Court, dipped his pen in the acid of arrogance and wrote that foreign law and practices are "irrelevant to the meaning of our Constitution." Such insularism was perhaps convenient and forgivable two centuries ago. Today it is a dangerous anachronism.
We are weeks away from silly season in Washington. Senators will sit somberly and fire questions at Supreme Court nominee Elana Kagan. She will most likely do her best to answer those questions while saying absolutely nothing. One salvo in the hearings will be her views on whether our law should heed international law and opinion.
Is there any doubt that we owe a decent respect to the opinions of the world? The very text of our constitution commands respect for international treaties, even if we refuse, to our shame, to sign such instruments as the Land Mine Treaty, or turn, stiff-necked, from the International Criminal Court.
The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations.
The silliness associated with origninalism is best displayed when it comes to criticism of Kennedy for regarding the opinions of other nations. Why, we're bound by the framer's intent. Sovereignty means we go it alone, set our own course. U.S. out of the U.N., so the rhetoric goes.
This brand of necromancy may play for those who have a sense of fealty to the Mayflower's passengers. But most of us came here long after the framers were dead. People still keep coming here, try though we do to keep them out. The world is here. We ignore it at our peril. International law is lapping at our borders. Are we really prepared to dig a constitutional moat around the nation?
The decision in Graham v. Florida is welcome. Heeding emerging world opinion is necessary. Finding justices who can make moot the shrill screed of Justice Thomas is much to be desired.
The Graham decision is a triumph, and so is the logic supporting it.
Caring about what the world thinks is an unforgivable sin for the America First, crowd. Justice Clarence Thomas, the oral Sphinx of the Court, dipped his pen in the acid of arrogance and wrote that foreign law and practices are "irrelevant to the meaning of our Constitution." Such insularism was perhaps convenient and forgivable two centuries ago. Today it is a dangerous anachronism.
We are weeks away from silly season in Washington. Senators will sit somberly and fire questions at Supreme Court nominee Elana Kagan. She will most likely do her best to answer those questions while saying absolutely nothing. One salvo in the hearings will be her views on whether our law should heed international law and opinion.
Is there any doubt that we owe a decent respect to the opinions of the world? The very text of our constitution commands respect for international treaties, even if we refuse, to our shame, to sign such instruments as the Land Mine Treaty, or turn, stiff-necked, from the International Criminal Court.
The Supremacy Clause commands that treaties are a source of law in the United States. And recent cases such as Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) command respect for the law of nations.
The silliness associated with origninalism is best displayed when it comes to criticism of Kennedy for regarding the opinions of other nations. Why, we're bound by the framer's intent. Sovereignty means we go it alone, set our own course. U.S. out of the U.N., so the rhetoric goes.
This brand of necromancy may play for those who have a sense of fealty to the Mayflower's passengers. But most of us came here long after the framers were dead. People still keep coming here, try though we do to keep them out. The world is here. We ignore it at our peril. International law is lapping at our borders. Are we really prepared to dig a constitutional moat around the nation?
The decision in Graham v. Florida is welcome. Heeding emerging world opinion is necessary. Finding justices who can make moot the shrill screed of Justice Thomas is much to be desired.
The Graham decision is a triumph, and so is the logic supporting it.
Monday, May 17, 2010
A Limp Dick
Today's New York Times features a front-page, above the fold story about Connecticut Attorney General Richard Blumenthal. To call the piece unflattering is an understatement. The real question is whether it is a sufficient spike to put to death Blumenthal's ambition to obtain a seat in the U.S. Senate.
First, the gory truth: The Attorney General has lied, and routinely so, about his war record. He has led others to believe time and again that he served in Vietnam. In fact, he sought deferment after deferment -- five according to the Times, and enlisted in the Marine reserves only as a last resort. After boot camp, he served in a unit for the well-heeled and well-connected, performing such hazardous duty as constructing tent platforms for a children's camp and passing out Toys for Tots. The closest the man who would be Senator ever came to a body bag, apparently, was passing out Barbies in toy store bags.
Hours after the Times hit the Internet, the story was all over Twitter. It's okay to lie about being at Woodstock, one writer noted, but not about Vietnam. Pretending to be a battle-scared hero in speeches to veterans' groups is close to sacrilege.
Then another whopper, although this merely pathetic. He permitted various news organizations to report that he was the captain of the Harvard swim team. Of course, the Times reports, he was never even on the team. When confronted, he appears to suggest that he cannot possible read all his press.
This rings mighty hollow from a man who courts the press so assiduously that one of Connecticut's top political jokes notes that the most dangerous location in the state is the space between Blumenthal and a television camera. One of the swim team references occurred in the now defunct Northeast Magazine, previously published by the state's largest, and the nation's oldest, newspaper, the Hartford Courant. A profile in the magazine is worth its weight in gold. I know. I was featured in a cover story in 1999, and count the piece as perhaps the best publicity I have ever had. The magazine referred to me, boast, boast, as a "brilliant and audacious trial lawyer." It must be true if it is in the Courant.
Blumenthal has had his eyes on the prize of higher office for well more than a decade. He hires and pays for a press secretary. He reads his clips, as do all well who live and die by the shadows we cast.
The Times reports that Blumenthal has a reputation as a brilliant lawyer. I am not so sure of that. There are many brilliant lawyers in his office, were I to name but a few -- Greg A'Auria, Perry Zinn-Rowthorn, Steven Strom, Margaret Chapple -- for example, I would offend many others by omission. Blumenthal has an eye for talent. He is a brilliant administrator. But brilliance as a lawyer? I've not seen it.
I've argued against him in cases that pass his justiciability threshold: the presence of reporters. He breezes in, cool as a cucumber chilled to just the right crispness. Handed a brief prepared by others, which he has no doubt read on his limousine ride to the court, he recites his lines well. He even argued a case against my firm in the United States Supreme Court, Porter v. Nussle, involving prisoner's rights. He was letter perfect, a former Supreme Court clerk showing his old bosses that he was still in the game. But brilliant? Word on the street in Connecticut is that he does not prepare his own cases. I cannot recall the last time he actually questioned a witness, a task in which lawyers learn that things can go bump in the broad light of day. Blumenthal is brilliant, all right, but not at lawyering.
His biography in the States Register and Manual reads like a press release for desire and passion sublimated to ambition. He and Elena Kagan are bedfellows of a depressingly similar type.
Finally, there is the question the Times did not write about: His wealth. A federal disclosure form reflects that he is worth at least $60 million. His wife, the heiress to the fortune flowing from Empire State Building rents, has a cool million dollars in the family's checkbook. As yet, he has not pledged his fisc to his campaign to fill the seat to be vacated by the retiring Senator Christopher Dodd. Instead, he's working the state like a one-armed bandit, seeking small contribution from folks who are lucky to have anything in their check accounts. A good friend called me the other day to report he'd no longer support Blumenthal: It was offensive to have this son of the Order of the Silver Spoon work play at Grey Poupon populism.
So is Blumenthal now dead in the water?
Probably not. For all his faults, he is not Linda McMahon, his republican challenger. She and her husband are worth several times more than the Blumenthal family. The McMahon fortune was made at a more explicit form of fraud: creating and marketing the World Wrestling Entertainment. Call her Hulk Hogan's mommy, if you will. And she acts the part. Were she a man, we'd say she had brass, er, spheres.
Blumenthal has done a good job as a consumer's attorney general. Replacing him will be difficult. He has the intelligence and vision to lead the state's largest law firm. Revelations that he is liar call into question whether he has the right stuff for the Senate, however.
Politics in Connecticut this season is a grim affair. The two leading candidates to replace Dodd, the man whose sweetheart "loans" from Countrywide should have landed him an indictment, are a brilliant mannequin and the queen of wreslemania. Two wealthy nabobs bobbing for votes in a sea of unemployed and discontented voters. It feels like ancient Rome; the Republic is crumbling and we get a man playing role of Cato, but lacking Cato's gravitas, as one candidate for consul. On the other hand, one of Nero's stage mistresses saunters by for approval, the grime of the coliseum still fresh on her brow. I hardly know where to turn.
Blumenthal's lies won't dislodge him from the race. That would leave us with McMahon, who is no choice at all. In the 2010 election for the U.S. Senate, we are left with a limp Dick as the better choice for office. No, make that a mighty limp Dick.
What next, Dick, did you, too, help invent the Internet? Or is that your signature I see there on the Declaration of Independence?
NOTE: The Limpster will hold a press conference today. His camp his claiming the Times piece is filled with half-truths. Perhaps. But the Times' research seems pretty solid. Will the Limpster show us a war wound that is not self-inflicted?
First, the gory truth: The Attorney General has lied, and routinely so, about his war record. He has led others to believe time and again that he served in Vietnam. In fact, he sought deferment after deferment -- five according to the Times, and enlisted in the Marine reserves only as a last resort. After boot camp, he served in a unit for the well-heeled and well-connected, performing such hazardous duty as constructing tent platforms for a children's camp and passing out Toys for Tots. The closest the man who would be Senator ever came to a body bag, apparently, was passing out Barbies in toy store bags.
Hours after the Times hit the Internet, the story was all over Twitter. It's okay to lie about being at Woodstock, one writer noted, but not about Vietnam. Pretending to be a battle-scared hero in speeches to veterans' groups is close to sacrilege.
Then another whopper, although this merely pathetic. He permitted various news organizations to report that he was the captain of the Harvard swim team. Of course, the Times reports, he was never even on the team. When confronted, he appears to suggest that he cannot possible read all his press.
This rings mighty hollow from a man who courts the press so assiduously that one of Connecticut's top political jokes notes that the most dangerous location in the state is the space between Blumenthal and a television camera. One of the swim team references occurred in the now defunct Northeast Magazine, previously published by the state's largest, and the nation's oldest, newspaper, the Hartford Courant. A profile in the magazine is worth its weight in gold. I know. I was featured in a cover story in 1999, and count the piece as perhaps the best publicity I have ever had. The magazine referred to me, boast, boast, as a "brilliant and audacious trial lawyer." It must be true if it is in the Courant.
Blumenthal has had his eyes on the prize of higher office for well more than a decade. He hires and pays for a press secretary. He reads his clips, as do all well who live and die by the shadows we cast.
The Times reports that Blumenthal has a reputation as a brilliant lawyer. I am not so sure of that. There are many brilliant lawyers in his office, were I to name but a few -- Greg A'Auria, Perry Zinn-Rowthorn, Steven Strom, Margaret Chapple -- for example, I would offend many others by omission. Blumenthal has an eye for talent. He is a brilliant administrator. But brilliance as a lawyer? I've not seen it.
I've argued against him in cases that pass his justiciability threshold: the presence of reporters. He breezes in, cool as a cucumber chilled to just the right crispness. Handed a brief prepared by others, which he has no doubt read on his limousine ride to the court, he recites his lines well. He even argued a case against my firm in the United States Supreme Court, Porter v. Nussle, involving prisoner's rights. He was letter perfect, a former Supreme Court clerk showing his old bosses that he was still in the game. But brilliant? Word on the street in Connecticut is that he does not prepare his own cases. I cannot recall the last time he actually questioned a witness, a task in which lawyers learn that things can go bump in the broad light of day. Blumenthal is brilliant, all right, but not at lawyering.
His biography in the States Register and Manual reads like a press release for desire and passion sublimated to ambition. He and Elena Kagan are bedfellows of a depressingly similar type.
Finally, there is the question the Times did not write about: His wealth. A federal disclosure form reflects that he is worth at least $60 million. His wife, the heiress to the fortune flowing from Empire State Building rents, has a cool million dollars in the family's checkbook. As yet, he has not pledged his fisc to his campaign to fill the seat to be vacated by the retiring Senator Christopher Dodd. Instead, he's working the state like a one-armed bandit, seeking small contribution from folks who are lucky to have anything in their check accounts. A good friend called me the other day to report he'd no longer support Blumenthal: It was offensive to have this son of the Order of the Silver Spoon work play at Grey Poupon populism.
So is Blumenthal now dead in the water?
Probably not. For all his faults, he is not Linda McMahon, his republican challenger. She and her husband are worth several times more than the Blumenthal family. The McMahon fortune was made at a more explicit form of fraud: creating and marketing the World Wrestling Entertainment. Call her Hulk Hogan's mommy, if you will. And she acts the part. Were she a man, we'd say she had brass, er, spheres.
Blumenthal has done a good job as a consumer's attorney general. Replacing him will be difficult. He has the intelligence and vision to lead the state's largest law firm. Revelations that he is liar call into question whether he has the right stuff for the Senate, however.
Politics in Connecticut this season is a grim affair. The two leading candidates to replace Dodd, the man whose sweetheart "loans" from Countrywide should have landed him an indictment, are a brilliant mannequin and the queen of wreslemania. Two wealthy nabobs bobbing for votes in a sea of unemployed and discontented voters. It feels like ancient Rome; the Republic is crumbling and we get a man playing role of Cato, but lacking Cato's gravitas, as one candidate for consul. On the other hand, one of Nero's stage mistresses saunters by for approval, the grime of the coliseum still fresh on her brow. I hardly know where to turn.
Blumenthal's lies won't dislodge him from the race. That would leave us with McMahon, who is no choice at all. In the 2010 election for the U.S. Senate, we are left with a limp Dick as the better choice for office. No, make that a mighty limp Dick.
What next, Dick, did you, too, help invent the Internet? Or is that your signature I see there on the Declaration of Independence?
NOTE: The Limpster will hold a press conference today. His camp his claiming the Times piece is filled with half-truths. Perhaps. But the Times' research seems pretty solid. Will the Limpster show us a war wound that is not self-inflicted?
Comstock's Brave New World
You could be forgiven the view that the federal government was one of limited powers. That was the framer's intent, after all. Those powers not expressly given to the federal government were retained either by the people or the state. A significant portion of our history has been a sustained struggled about where to draw the line distinguishing state and federal power.
The United States Supreme Court all but ignored that line in today's decision in United States v. Comstock, et al. It did so in a way that terrifies. Call in the therapeutic police writ large.
The case involved the decision of the federal government to detain five prisoners after they had served their criminal sentences. The men were all convicted sex offenders. Because the government believed that the men were mentally ill and still posed a danger to reoffend, they moved to commit them civilly, under a federal statute. Three of the men were convicted of possession of child pornography, one was convictetd of illegal contact with a minor, the fifth was convicted of aggravated sexual assault of a minor.
Under the federal civil commitment statute, the men could be detained after serving their sentences if the Government showed, by clear and convincing evidence, that the men were: 1.0 either previously or attempted to engage in sexually violent conduct or child molestation;" 2.) suffered from a serious mental illness, abnormality or disorder; and, 3.) are sexually dangerous to others or would have serious difficulty in refraining from sexually violent conduct or child molestation. A potential detainee has a right to a hearing, counsel, and the right to put on evidence. But a detainee has no right to a jury. This loss of liberty is regarded as civil rather than criminal in character. Whether a person is to remain detained can be reviewed every six months on demand of the detainee.
The majority decision of the Court, written by Justice Breyer, justifies this sweeping new federal power as little more than business as usual. This power, he writes, is simply a power necessary and proper under Art. I, Section 8 of the federal Constitution.
What shocks is that the Court refuses even to make passing reference to the Ninth Amendment of the Constitution. That amendment, the forgotten child of the federal Constitution, reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Court has never, in more than two hundred years of jurisprudence, paid more than lip service to those rights retained by the people.
This decision explands federal power in significant ways. First, it applies a statute that was no doubt intended to hold violent felons to those accused of mere looking at pictures, the three detainees accused of looking a child pornography. Assuming that this is a disorder, is it really a crime involving sexual violence to a child or child molestation? On this broad application of the statute, the federal government would justified in seeking unlimited detention of anyone who looked at a prohibited image of a child.
Students of constitutional law are familiar with the enumerated powers doctrine. It is said that the federal government is one of limited powers. To the states, the theory goes, belongs the police power, that authority governing the health, education and welfare of a citizenry. What justifies this sweeping rebuke of the state's ability to police its citizenry?
Granting the federal government what amounts to an expanded police power in a climate of moral panic is chilling. The federal government does on occasion prosecute men federal prosecutors believe have been dealt with too leniently by the states. This is no violation of double jeopardy, lawyers know, as different sovereigns can see things differently.
The federal government has customarity served as a counterweight when the states succumb to craziness. In Comstock, the Court became the chief cheerleader for what can easily amount to state-sponsored craziness.
The United States Supreme Court all but ignored that line in today's decision in United States v. Comstock, et al. It did so in a way that terrifies. Call in the therapeutic police writ large.
The case involved the decision of the federal government to detain five prisoners after they had served their criminal sentences. The men were all convicted sex offenders. Because the government believed that the men were mentally ill and still posed a danger to reoffend, they moved to commit them civilly, under a federal statute. Three of the men were convicted of possession of child pornography, one was convictetd of illegal contact with a minor, the fifth was convicted of aggravated sexual assault of a minor.
Under the federal civil commitment statute, the men could be detained after serving their sentences if the Government showed, by clear and convincing evidence, that the men were: 1.0 either previously or attempted to engage in sexually violent conduct or child molestation;" 2.) suffered from a serious mental illness, abnormality or disorder; and, 3.) are sexually dangerous to others or would have serious difficulty in refraining from sexually violent conduct or child molestation. A potential detainee has a right to a hearing, counsel, and the right to put on evidence. But a detainee has no right to a jury. This loss of liberty is regarded as civil rather than criminal in character. Whether a person is to remain detained can be reviewed every six months on demand of the detainee.
The majority decision of the Court, written by Justice Breyer, justifies this sweeping new federal power as little more than business as usual. This power, he writes, is simply a power necessary and proper under Art. I, Section 8 of the federal Constitution.
What shocks is that the Court refuses even to make passing reference to the Ninth Amendment of the Constitution. That amendment, the forgotten child of the federal Constitution, reads as follows: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." The Court has never, in more than two hundred years of jurisprudence, paid more than lip service to those rights retained by the people.
This decision explands federal power in significant ways. First, it applies a statute that was no doubt intended to hold violent felons to those accused of mere looking at pictures, the three detainees accused of looking a child pornography. Assuming that this is a disorder, is it really a crime involving sexual violence to a child or child molestation? On this broad application of the statute, the federal government would justified in seeking unlimited detention of anyone who looked at a prohibited image of a child.
Students of constitutional law are familiar with the enumerated powers doctrine. It is said that the federal government is one of limited powers. To the states, the theory goes, belongs the police power, that authority governing the health, education and welfare of a citizenry. What justifies this sweeping rebuke of the state's ability to police its citizenry?
Granting the federal government what amounts to an expanded police power in a climate of moral panic is chilling. The federal government does on occasion prosecute men federal prosecutors believe have been dealt with too leniently by the states. This is no violation of double jeopardy, lawyers know, as different sovereigns can see things differently.
The federal government has customarity served as a counterweight when the states succumb to craziness. In Comstock, the Court became the chief cheerleader for what can easily amount to state-sponsored craziness.
Entrapment and the Culture of Desire
Does it matter if the young woman enticing you to take a trip between the sheets is really a police officer in disguise? When you are arrested for a sex crime, isn't this really entrapment? After all, if all you've done is talk you haven't really done anything illegal yet, right?
The defense of entrapment is far more limited than most folks realize. To succeed, a person putting on such a defense must show that the prohibited conduct of which they are accused is something they only did because the government induced them to do it. In a culture in which desire is used to market almost everything, can anyone real say that the government made me lust?
I see a lot of entrapment claims just now in the area of Internet solicitation scams. There is an active task force in Connecticut of law enforcement officers engaged in salacious talk in chat rooms. They look for a guy taking his libido for a walk on line, tell him they are curious, and then engage in all manner of salacious talk. Depending on how things progress, the defendant is then charged with solicitation of a minor, if he never leaves the comfort of his own home, or attempted risk of injury to a minor, if he shows up at a prearranged assignation. More than one of these young men has asked me whether they weren't entrapped.
Strictly speaking, the answer is no. One Connecticut case described entrapment in the following terms: "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of the police officer." State v. Grant, 8 Conn.App. 158, 164 (1986).
Plenty of the language in this definition is helpful to the defense. Internet sting operations are designed solely for the purpose of instituting prosecutions. That's why officers troll pretending to be young teens.
But the defense fails typically for several important reasons. First, the defendant is the one who travels to a destination, whether virtual or real, expecting to make contact with a young person ready, willing and able to perform prohibited acts. No one forces the defendant to log on and inquire about the sexual experience of a perfect stranger.
In addition, and here's the real rub, in a society as saturated with desire as ours can anyone really claim that an amorous assignation is not something they've contemplated? We're wire to procreate. Many societies repress and channel this instinct into forms easy to control: we've set these instincts free. Is it any wonder that transgressions are common?
I'm not blaming Madison Avenue entirely. Nothing about the sale of aftershave justifies the molestation of a kindergartner. But the so-called Romeo and Juliet crimes, where a young woman just below the age of consent yields, are troubling. How many models hit the runway before the age of consent? How is it that we can use desire both to entice and to punish? Uncle Sam in drag as a dominatrix?
I raise these broader cultural issues merely to provide a setting for the fact-bound sorts of inquiries that take place in a courtroom. Relaxed though our general standards may be when it comes to sensuality, the law is savage in its consequences for crossing lines drawn by lawmakers. Don't expect to defend successfully a sex case by blaming society. We're expected to toe these lines, even if they make no sense.
It is sadly common when representing a young man in an Internet sting case for me to say something along the following lines: "If it seemed to good to be true, it probably was." The sad fact remains that many young men, when their hormones are revving and raring, have lost just enough self-control to lose the critical insight necessary to distinguish fact from fiction. This should not make them sex offenders; it merely labels them immature.
Which brings us to the following and final point, and it is a point that I have never tested with a jury. Does a young man playing at sex on the computer really intend to engage in criminal conduct?
On the surface, I suppose, the answer is clearly yes. A person soliciting the attentions of a fourteen-year-old for purposes of sex violates the law. But how many people playing games on line really believe that they are interacting with another person?
The Internet informs, but it also depersonalizes. Read the comments section to an on line newspaper sometime and ask yourself the following: How many of these folks would really have said the nasty, vile and intemperate sorts of things they posted if they were required to post their real name? How many folks would own what they write?
Not many, I suspect. I believe the same to be true about young men playing on line Lothario. On line sex has replaced yesteryear's pinup, only the sticky fingers remain the same.
Young men ought not to be headed to prison for flirting with an avatar. Something other than vagrant desire and fantasy unbound should be required to make out a crime. The law as it is now applied makes no effort to determine whether the defendant in solicitation cases actually believes that his lustful interlocutor is really a child, or whether the defendant actually intended to do more than dream about an encounter.
Under current law, you play on line at your risk, and I advise against it for both moral and legal reasons. But I still think the law is wrong. I've seen young men guilty of no more than taking Madison Avenue a little too seriously go to prison. It's madness.
The defense of entrapment is far more limited than most folks realize. To succeed, a person putting on such a defense must show that the prohibited conduct of which they are accused is something they only did because the government induced them to do it. In a culture in which desire is used to market almost everything, can anyone real say that the government made me lust?
I see a lot of entrapment claims just now in the area of Internet solicitation scams. There is an active task force in Connecticut of law enforcement officers engaged in salacious talk in chat rooms. They look for a guy taking his libido for a walk on line, tell him they are curious, and then engage in all manner of salacious talk. Depending on how things progress, the defendant is then charged with solicitation of a minor, if he never leaves the comfort of his own home, or attempted risk of injury to a minor, if he shows up at a prearranged assignation. More than one of these young men has asked me whether they weren't entrapped.
Strictly speaking, the answer is no. One Connecticut case described entrapment in the following terms: "Entrapment is the inducement by a public servant or police officer of a person to engage in criminal conduct that had not been contemplated by him, for the sole purpose of instituting criminal prosecution against him. The defense is available to the defendant only if he would not have engaged in the proscribed conduct but for the inducement of the police officer." State v. Grant, 8 Conn.App. 158, 164 (1986).
Plenty of the language in this definition is helpful to the defense. Internet sting operations are designed solely for the purpose of instituting prosecutions. That's why officers troll pretending to be young teens.
But the defense fails typically for several important reasons. First, the defendant is the one who travels to a destination, whether virtual or real, expecting to make contact with a young person ready, willing and able to perform prohibited acts. No one forces the defendant to log on and inquire about the sexual experience of a perfect stranger.
In addition, and here's the real rub, in a society as saturated with desire as ours can anyone really claim that an amorous assignation is not something they've contemplated? We're wire to procreate. Many societies repress and channel this instinct into forms easy to control: we've set these instincts free. Is it any wonder that transgressions are common?
I'm not blaming Madison Avenue entirely. Nothing about the sale of aftershave justifies the molestation of a kindergartner. But the so-called Romeo and Juliet crimes, where a young woman just below the age of consent yields, are troubling. How many models hit the runway before the age of consent? How is it that we can use desire both to entice and to punish? Uncle Sam in drag as a dominatrix?
I raise these broader cultural issues merely to provide a setting for the fact-bound sorts of inquiries that take place in a courtroom. Relaxed though our general standards may be when it comes to sensuality, the law is savage in its consequences for crossing lines drawn by lawmakers. Don't expect to defend successfully a sex case by blaming society. We're expected to toe these lines, even if they make no sense.
It is sadly common when representing a young man in an Internet sting case for me to say something along the following lines: "If it seemed to good to be true, it probably was." The sad fact remains that many young men, when their hormones are revving and raring, have lost just enough self-control to lose the critical insight necessary to distinguish fact from fiction. This should not make them sex offenders; it merely labels them immature.
Which brings us to the following and final point, and it is a point that I have never tested with a jury. Does a young man playing at sex on the computer really intend to engage in criminal conduct?
On the surface, I suppose, the answer is clearly yes. A person soliciting the attentions of a fourteen-year-old for purposes of sex violates the law. But how many people playing games on line really believe that they are interacting with another person?
The Internet informs, but it also depersonalizes. Read the comments section to an on line newspaper sometime and ask yourself the following: How many of these folks would really have said the nasty, vile and intemperate sorts of things they posted if they were required to post their real name? How many folks would own what they write?
Not many, I suspect. I believe the same to be true about young men playing on line Lothario. On line sex has replaced yesteryear's pinup, only the sticky fingers remain the same.
Young men ought not to be headed to prison for flirting with an avatar. Something other than vagrant desire and fantasy unbound should be required to make out a crime. The law as it is now applied makes no effort to determine whether the defendant in solicitation cases actually believes that his lustful interlocutor is really a child, or whether the defendant actually intended to do more than dream about an encounter.
Under current law, you play on line at your risk, and I advise against it for both moral and legal reasons. But I still think the law is wrong. I've seen young men guilty of no more than taking Madison Avenue a little too seriously go to prison. It's madness.
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