Wannabe Justice Kagan and the Theater of Evasion

I didn't get a chance to watch any of the Elena Kagan confirmation hearings yesterday. I spent the day doing lawyerly things: I went to court to argue about whether the state had violated the rights of a criminal defendant by seizing his life savings from his and his wife's bank accounts when police discovered the man's son was growing marijuana in the basement of the family home. Then I spent the evening doing prison visits to other clients. After a fourteen-hour day I was too tired to turn on the television.

It turns out I didn't miss a thing, according to the morning papers. Kagan was a lump of clay, refusing to answer all sorts of questions because the issues involved might come before her some day. There she sat interviewing for one of the top jobs in government, and all she could do was babble platitudes. In a word, she filibustered. It was a performance that inspired something far less than confidence.

There is no question that Kagan is intellectually qualified to sit as a Supreme Court justice. She was a top student at Harvard Law School. She's been a law school dean. She clerked for Justice Thurgood Marshall. She played politics in the Clinton White House. She's a smart political operative, adept at working a room and spinning policy arguments. But when it comes to candor about her views on the law, she looked pretty pathetic. She became, yesterday, everything she criticized other nominees for being in an article she wrote in 1995: a vapid wannabe.

To the president belongs the right to nominate a person to the Supreme Court. The Senate has a supporting role in the process: to advise and consent to the nominee. But this role is reduced to a charade when a candidate does what Kagan did, and claims the jurisprudential privilege of refusing to answer any question that involves an issue on which she might rule. Answering such questions would be "inappropriate," Kagan said, again and again.

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do so justifies a bipartisan filibuster of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you. I want to know the beating heart beneath the robe.

I want to know, Wannabe Justice Kagan: Does the so-called war on terror justify interrogations of suspected terrorists on American soil without offering Miranda rights? I need to know just how much of the Fourth Amendment you are prepared to sacrifice in the name of a sense of security. At what point do you, Madam Wannabe Justice, recoil and say that we have given the government too much power? Tell us, truly, what you make of the silly hypothetical your Harvard coffeemate, Alan Dershowitz, cooked up about the so-called "ticking time bomb." Yes, these issues will come before you. But before you decide them, tell us how you think about them.

I want to know, Wannabe Justice Kagan, your views on Bush v. Gore and the Court's role in election disputes. Oh, don't bob and weave. There is nothing wrong about telling us what you think of a decided case. The issues are no longer hypothetical. The record is clear. What do you think? Why? Perhaps you'd care to contrast the merits of Plessy v. Ferguson and Brown v. Board of Education: Both were law once. One decision said it was fine and dandy to discriminate based on race, the other said it was abhorrent. Tell us why the law reaches different conclusions at different times.

I want to know, Wannabe Justice Kagan, what you think of gay marriage. Does the equal protection clause guarantee a right to marry to gay and lesbian men and women? Don't pretend you have not thought about it. And don't dodge the issue by claiming it is hypothetical. Comment on the case working its way to the high court now in Northern California. Surely you've read the newspapers, if not the briefs. Under what circumstances, if any, would the Fourteenth Amendment provide such a guarantee?

I want to know, Wannabe Justice Kagan, what role did you play in the decision to limit the access of military recruiters at Harvard. No equivocation, dear. Just straight talk please. And tell us, was Roe v. Wade correctly decided? You did teach law at some point, correct?

Kagan scored few points for candor yesterday. A trial lawyer behaving in such a manner before a judge, or an appellate lawyer before a panel, would be scorned for the sort of equivocation she uttered yesterday. Yet there Kagan sat, looking pleased to bob and weave and waste the time of a nation. Why not just send a mannequin to today's hearing?

If this is the best Kagan can do,the Senate would be within its bounds simply to refuse to vote on her nomination. It would be unfair to reject her outright: she is intellectually qualified. But she is saying nothing. The woman is pretending to be a cipher. The Senate can and should put an end to the theater of evasion by refusing to pass judgment on her nomination until she does something other than tap dance around the truth. Perhaps that is the only way we can put an end to the sorry spectacle of meaningless nomination hearings.

Gerry Darrow's Opening Remarks Before Senate Panel

Senator Leahy, Senator Sessions, other members of this committee, my name is Gerry Darrow, and I am here today to answer your questions. I won't evade or hide any inconvenient truth or attitude from you or the American people. But before I answer your questions, I have a few for you. The mere posing of these questions will shed great light on my philosophy and temperament. What you make of me will determine whether I become the newest justice on the Supreme Court. I respect your right to make this decision.

Is there a one of you here who would trade the power, prestige and affluence you now enjoy to establish a new secular order? I looked at a dollar bill the other day and I saw the promise of something new printed right there on the back of it. Yet the nation groans now beneath the same historic weight of rich versus poor that from time to time brough Rome to its knees. Is ours a new order any longer, or are we now simply another in a series of nations that have betrayed the energy of its founding? The world groans in poverty and despair, and we ignore it.

The people I represent cry out for justice. They've learned to settle for laws that are often written behind closed doors, bought and paid for by lobbyists wearing suits that cost more than they spend in a year on a wardrobe. Banks fail, and you bail them out. The people fail and tumble and you are not there to catch them. Folks no longer look to these chambers for hope. Instead this one fiddles a sad tune about the intentions of men who rode in horses and buggies, while that one hums a silent tune of praise to his campaign contributors. I came here today with a heavy heart, and longed to find just one money chamber's table to turn over. That's my America, an open wound you refuse to look at, much less treat.

I am, Senator Sessions, a trial lawyer. I learned my trade yoked to the law, as you put it in your remarks this morning. The law's doctrines have broken men and women standing next to me. Some have killed in a rash moment and we called it murder. Others have taken by force what you would not give by law and we call it robbery. Despair and lack of hope have led many to dull their pain with alcohol and drugs. My American is filled with people just getting by and wondering why they should give a whit about whether either of your parties prevails. I know the law, Senators. The law is too often deaf to need; it serves power.

Can any of you tell me what justice is? Can you tell me, Senator Cole? What is justice, sir?

I cannot tell you that I know. I agree with Clarence Darrow: "There is no justice in or out of court." What there is is conflict and the resolution of conflict. Life is a struggle between those who have and those who do not. It has always been that way. It will alwys be that way. It is that way today. How often do debates in this very room pretend it is otherwise?

I did not attend an elite law school. I have never clerked for a judge. I've never set foot in the office of an elected official. I am not a professor or a dean. I am a lawyer. I read the laws you pass and I know that you don't have a single intent, often many of you have not even read the laws you vote on. What I read of your debates tells me there is little on which you can agree. No, I read the law and then I look to my client to see what he or she hopes for in the struggle that brings them to me. Then I used the law to fight to get them what they want. My clients have interests; they are not members of a party with an agenda cast in sweeping policy terms. They bleed. Have you ever seen corporate blood, Senator Hatch?

Senator Leahy, I heard you say in your opening remarks Constitution was intended to last for the ages. ow much longer do you think we really have? How many Americans don't vote because the outcome of an election doesn't matter? How many have given up hope of finding a job? For how many Americans have the material circumstances of their lives led down the dark path of mental illness?  Not one of you can truly answer these questions. You don't know the answers. It is not that you don't care. It is simply that your America is a world of well-set tables and manners. Mine is that of the stable and litter-strewn stoop.

You want to know my view of judging? I'll be honest with you: I'm not sure I have a settled view. I've been too busy trying cases to adopt one, or even to give the matter much thought. Perhaps it is easier to say what my view lacks. I bring no predisposition to how the Constitution should be read. Strangers meet on a street and are knit together by the law's silent chords. The Constitution is the primary chord. It must bind high and low in the same bundle. The social contract must be struck each generation anew; we always poor new wine into old skins. When those skins break, we remake them, one at a time. As judge my job will be to decide the case before me in a principled manner, using the best material at hand. It is the litigants' job to bring me the brick and mortar with which to build. I come to this Court with empty hands and an aching heart, nothing more.

I believe in the separation of powers. This is a republic. The courts stand removed from the passions of the day. When you are swept by the day's events and act too rashly as a legislative body, I believe it is the courts' role to say "Not so fast." Do not expect deference from me for all that you do. The federal government is a government of limited powers; yes, commerce has changed the nature and scope of our lives, but the fundamental commitment to the dignity of the individual remains sacrosanct. I believe the Court is the guardian of that dignity. I believe my experience as a criminal defense lawyer has taught me to love the flame flickering within each breast.

We are all summoned from the unknown and take shape, live and then die in a community of strangers. The law makes false friends of us all. There should be no berth in our society so low that the mightiest would scorn to occupy it if chance had cast his lot to the lower order, rather than the highest. The law knows no friends, and its only enemy is the man without law, the man who sets himself apart. I worry, Senators, that you are apart, and that you serve an often silent elite the scorns those you never really see from a room with as pretty a setting as this.

Do I want to be a Supreme Court justice? Not really. I could live without the honor and the power and the prestige. When I walked into this room and saw the lights flashing I felt like a fool. Me, a middle aged man now a rock star, with groupies attending my every step. I saw some of you smile when you entered the room. Have you come to love your comfort perhaps more than you should?

I am not a member of any political party. I rarely vote. I pay my taxes, work, love my wife and kids, and read in the silent evenings I can steal from my clients' needs. I am no more than this, but in this I am independent. I will serve if chosen because I have been asked to do so. This is not a position for which I have groomed myself from youth onward. In truth, I never set a path for myself that required me to sacrifice my peace of mind. If selected, I will read the law, read the briefs submitted, question the lawyers who argue before me, and press my client to give coherent accounts for their opinions. Then I will do my best to decide each case according to such principles of right, precedent and law that I can discern.

Will this make me a good justice? I do not know. I will be an honest judge, the sort of which a litigant can say: "He listened, and I understand why he decided as he did." There is nothing more I can aspire to, and, frankly, nothing more to say on the topic.

Thank you for listening to me. I await your questions.

More on the Gerry Darrow nomination here: http://gerrydarrow.blogspot.com.

"Bad" Books In Connecticut Prisons?

Books for prisoners is an issue I care deeply about. It is not simply that I own a used bookstore, and therefore have an interest in feeding an addiction to words. No, the issue is more fundamental. Reading and a sense of spiritual freedom go hand in hand. Epictetus may have been a slave, but words set him free. I've met prisoners transformed by what they read. Above the door to my bookstore is a simple sign: "Set Yourself Free."

An unusual hearing will take place tomorrow in a Connecticut courtroom about the reading habits of one prisoner, Steven Hayes, a defendant now facing the death penalty for his role in the slaughter of all but one member of the Petit family in Cheshire, Connecticut, during the summer of 2007. The case has become legendary across the nation. Hayes and a co-defendant burst into the home of a prominent physician in the dead of night. They beat the doctor senseless, then terrorized his wife and daughters, eventually raping and murdering them by setting the house afire. The physician escaped.

The jury has been selected in the Hayes case and evidence will begin in September. Both sides are now engaged in what lawyers call motion practice, an effort to determine, before the jury ever sets foot in a courtroom, just what can and cannot be shown to the jury.

Hayes' lawyers have moved to prevent the state from offering evidence of what Hayes was reading while incarcerated in the Department of Corrections on an unrelated crime. The press reports the defense wants to keep jurors from reading "criminally malevolent" books while incarcerated at the Cheshire Correctional Institution.

What, pray tell, is a criminally malevolent book? Is that sort of like a homicidal gun? Books don't commit crimes; people do.

I worry that this motion and the attendant publicity will fan something like increased censorship in the prisons. It is already difficult to get reading material to prisoners. Jailers worried about contraband will not let folks bring books to prison, for fear of what might be secreted in the binding. Try delivering a copy of the Oxford English Dictionary to some half-wit and watch what happens. You can pack a lot of smack in the bindings of that multi volume set. You must have new books sent directly from a publisher. My efforts to send used books to the prison have failed.

But a dictionary changed Malcolm X's life while incarcerated. He read it cover to cover and was empowered with the words he discovered and made his own. Words are liquid fire, setting aflame souls tha will burn for good or ill.

I've know about this motion in the Hayes case for awhile, although I have yet to see a copy of it, so I've had time to consider what book or books the state may seek to offer as evidence. Somehow I doubt there are volumes on how to burn a house to the ground or tie a child to a bed. Prison officials are literate enough to catch those.

My prime title is Truman Capote's In Cold Blood, the story of the slaughter of a Kansas farm family in, as I recall, the 1950s. This is a piece of brilliant writing that transforms horror into mesmerizing prose. Did Hayes read that work and decide his deeds could do better?

The defense believes that permitting the admission of these books into evidence is more prejudicial than probative. In other words, this evidence will anger the jury such that a fair and dispassionate verdict cannot be rendered. I doubt that is the case. The state must prove first that Hayes committed the crime. If it succeeds at that, it then proceeds to a penalty phase where it may seek to prove that Hayes acted in an especially cruel, heinous or depraved manner. If Hayes was reading up on notorious crimes trying to figure out how he could best the masters of sadism in sheer horror, I think a jury is entitled to hear that.

Last week, the defense also filed a motion to close the court during argument on these motions, lest jurors hear of the doings. That motion, too, should be denied. The jury has not been sequestered in this case. They are, rightly or not, presumed to follow the court's instruction to avoid publicity. Closing the court so that no one knows about this hearing conflicts with the public's First Amendment right to know just what is going on in our courts, and, apparently, in our prisons.

There are no such things as bad books. But there are bad men. Treating books like radioactive evil to be sequestered and hidden is bad jurisprudence. Hayes was a reader. So be it. He may well be a vicious killer too. We may well punish him for his acts without depriving him and others imprisoned the right to read widely and well. The world presents choices for us all. Putting blinders on those in need of light will not help them to see any better. It will merely empower a censor.

Darrow Promises "Frank Talk" At Hearings

Supreme Court nominee Gerry Darrow held a surprise press conference this afternoon, bidding reporters to "Ask me anything." Across town, co-nominee Elena Kagan, was hidden away from the press with White House handlers, in preparation for the confirmation hearings set to begin Monday before the Senate Judiciary Committee.

President Barack Obama stunned the nation earlier this year when he nominated Darrow, a Connecticut public defender, to the Supreme Court. To mollify critics of his decision to nominate such an unconventional candidate, the president then nominated Elena Kagan, the Solicitor General and a former dean of the Harvard Law School. "Let the people choose," Obama said, setting the two candidates for office on a  collision course in this week's hearings to select a replacement for Justice John Paul Stevens.

"Of course, there can be but one Justice," Carswell Redding of the Cato Institute said. "The president's decision to nominate two contrasting candidates is unprecedented in our history. I'm not sure how the Senate will respond."

Darrow seemed unconcerned about the Senate reaction on Sunday, laughing as reporters peppered him with questions.

"Original intent? Beyond efforts to preserve liberty by creating checks and balances and limiting the reach of the federal government, I don't think Tom Jefferson has a whole lot to say. He's been dead a good long while, hasn't he?," Darrow said when asked about original intent. "Scalia's a bright guy," Darrow said of Justice Antonin Scalia, a proponent of trying to tether the Constitution's meaning to the intent of the framers, "but he should have gone to divinity school, or maybe taught biology in Dayton, Tennesse."

"That's right up there with the Tooth Fairy, in my view," Darrow then said about a recent Court decision giving to corporations unlimited rights to contribute to political campaigns. "Corporations aren't people. Never were. Can't be. They're simply fictions designed to limit risk for necessary investments. The decision is a disaster," he said of the case, called Citizens United.

Darrow's free-wheeling style and easy-going demeanor are expected to mark a contrast to Kagan's reserve and polish. Whereas Kagan has spent the past six weeks courting Senators in private one-on-one meetings, visiting more than 60 at last count, Darrow has kept busy at work in the Connecticut criminal courts. Last week, Darrow tried a drunken driving case, winning for an acquittal for a man the police found passed out behind the wheel of an idling car. "The statute says you have to prove operation. No one saw him driving the car. He had an empty bottle on his lap. I guess the jury concluded he drank it as he sat looking out at the water," Darrow said with a shrug. "It's hard to figure on juries, not that Kagan would know much about that."

Legal experts doubt Darrow has much of a chance of confirmation. His style is often blunt, even confrontational, character traits honed in the one-on-one combat of a courtroom. Darrow was once held in contempt when a microphone picked up a comment he made a little too loudly during closing arguments in a murder case. "Bullshit," he said of the prosecutor's closing. He later apologized.

But placards carried by demonstrators outside the Court during Darrow's press conference suggest some support for the trial lawyer. Several people carried large photographs of Kagan with a large X over her face. "Just say no," the signs said. "It's time for a people's lawyer," said other signs.

"Look, I know I am not the choice of insiders," Darrow told a reporter. "But we've heard so much coded cow dung at confirmations over the past couple of decades I am pleased as punch to sit there and give the Senate some straight talk."

"How would I vote on Roe v. Wade?" he asked. "Aren't you going to ask? Well, let me tell you: I don't want any government poking around between my or my wife's legs. You'll get yourself shot doing that. I suppose that tells you what I think about the Second Amendment, too," he said with a wink.

Darrow clearly seemed to be enjoying the press conference, pausing frequently to shake hands with well wishers and the curious.

"I'm looking forward to tomorrow. But I'll bet Kagan isn't. She locked up somewhere studying how to talk and not say anything. Haven't we had enough of that? I'd say we need a little frank talk for a change."

For more coverage of Gerry Darrow, click here.

Minds, Bodies and the Criminal Law

Consider the following case: A boy gets into an argument with a classmate. Tempers flare. The boy physically assaults his classmate, injuring the classmate. There is no question here of self-defense. Has a crime been committed?

All crimes have at least two things in common: A prohibited act and a mental state, typically intent, although recklessness and even mere neglience can support an assault charge. Although the law of assault varies from state to state, it is safe to say that all assault statutes share the same characteristics: If you strike another and cause inury, you are guilty of a crime.

But let's make this a little more complex. The defendant here had recently been in a motor vehicle accident. He struck his head as the cars collided. His doctors detected a mild brain injury. Brain imaging shows modest damages to the boy's prefrontal cortex. A neurologist prepares a report for the boy's lawyer stating that this mild brain injury affects the very portion of the brain that moderates aggression. In effect, the young man's trigger switch was defective: He too quickly moves from mild provocation to rage.

What does the law say in this case? Is the boy to be held criminally responsible for the assault?

This is no mere hypothetical question. I was consulted not long ago by a lawyer who had a slight variant on this fact pattern. (Note to lay readers: Fact patterns are the stock in trade of lawyers. We chart chaos' many vectors and then relate them to established legal doctrine. The intersection of factual vector and doctrine yields a foreseeable outcome.)

Connecticut has a new diversionary program called psychiatric accelerated rehabilitation. Under this program, a first-time offender suffering a mental disease or defect has a chance to avoid a criminal conviction. If granted accelerated rehabilitation, a person goes on a brief period of probation. After successful completion of this supervision, the charges are dismissed. This sort of program is called a diversionary program.

In the case of the boy with the damaged brain, the lawyer had done his homework. He prepared evidence of the brain injury. The boy's physician was prepared to testify if necessary. There was no question that the young man had suffered an objective injury that resulted in impairment. This impairment accounted for the conduct that brought the boy to criminal court. It would seem accelerated rehabilitation was the way to go. Get the lad treatment; give him a chance to fly right, if he can.

The problem is the lawyer could not get the judge to listen to the evidence.

In Connecticut, there are supervised pre-trials in criminal cases behind closed doors before things go on the record. Typically, the prosecutor, defense counsel and the judge meet in the judge's chambers to discuss a case and to determine how best to proceed. Often you get a pretty good sense of where a judge's head is at before the presentation of evidence in a case.

In the prefrontal cortex injury case, the judge heard what the defense lawyer was saying. The prosecutor had reviewed the evidence the defense was prepared to present, and was offering no real rebuttal. But after discussing the case with the judge, the defense lawyer came away with the conviction that the judge would not grant the program based on this evidence. What could he do about that?, the laywer asked me.

There's not much you can do with a judge who won't listen. We all know that you can lead a jurist to the courtroom but you cannot necessarily make him think. A judge is free to accept or reject even uncontested evidence in a hearing in which he makes the factual determinations. Getting an appellate court to reverse a judge's factual findings is virtually impossible.

I worry that despite advances in neurology, molecular biology and biochemistry, and better understanding of the relationship between mind and body, we are still applying voluntaristic and largely Victorian models of moral reasoning in the criminal courts.  Sure, there are times in which criminal conduct is freely chosen. But there are also times, many times, in which such conduct occurs in the absence of a culpable mental state.  How is justice served by assigning moralistic intent to folks who lack the capacity to control their conduct?

We recognize that justice cannot be served in such cases when it comes to the insanity defense, although that defense, too, is very hard to prove. But science teaches more and more each year that the line between mind and body is quite thin. A program that diverts folks with what I will call for lack of a better phrase a diseased filament tethering mind and body permits a defendant to seek treatment before being stigmatized as a criminal. Clearly in the case of the boy with a brain injury, something other than a felony conviction is required. It is not justice to punish the ill or injured.

I had no answer for the lawyer who called to complain about the judge with wooden ears. I still don't. But I am troubled deeply by this case. I wonder whether, when and how the courts will learn to accept the best evidence we have of the relationship between mind and body.

What are other states doing to make sure this evidence is given full and meaningful consideration?

Our Garden: Harvesting a Miracle

My wife and I spent many hours this spring preparing our garden beds for planting. I neglected them at the end of the last growing season. Hard work in late autumn can make for an easy spring; you pay with labor for neglect. But we weeded each of the raised beds, we fertilized where necessary, we laid down straw in the paths between beds. Then we transplanted the seedlings from inside and planted other seeds without giving them an indoor start. That was just before Memorial Day.

This morning we walked through the garden in much the same frame of mind that Adam and Eve must have had those first few mornings in Eden: The lush paradise surrounding us seemed to appear, as if from nothing. We were surrounded by miracles.

I know in some pedestrian ways what has taken place. The seeds have been moistened and drawn nutrients from the soil. The Sun has heated the Earth, and as leaves form, photosynthesis drives invisible engines of growth. Tomato plants are now two and three feet tall. We picked our first zucchini today. Our peas are fat and sassy. Pole beans have begun their sprint skyward. Broad leaves expand to fuel the growth of pumpkins. We're ready to eat beets, and will soon be planting more for later in the season and storage in the winter. Our carrots, too, are formed already; it is time for another planting. Several varieties of lettuce wave in the breeze. This is abundance and it seems more than the consequence of nature's way; it seems a miracle. So I will call it so, and walk humbly amid this bounty, thankful for what has thus far been a perfect season of rain, heat and Sun.

Those who grow no portion of what they eat deny themselves a healthy sense of awe. I stood this morning marveling at all the shades of purple. The stalks of our brussels sprouts are spectral. The deep purple of our beets is almost soothing, like chocolate on a cold day. And the flowering eggplants are a lover's kiss, promising more sensual delights if we will but attend and wait. A garden can make even a godless man give thanks to things unseen.

This year my wife and I are not traveling. We will stay at home during our summer vacation. We have work to do on the land. Land needs tending, and so do we.

We have an active chestnut tree that blooms just about now. We stood beneath it this morning and listened to the bees hum. The tree gives off a thick scent we first mistook years ago for something like distant chlorine. It took time for city noses to decipher country scents. The trees too are mircales now: apples, pears and peaches look different when they fall from a limb, rather than from a grocer's bag.

I spent a couple days away from home this week. I was homesick in a hurry. The day before we left, a tornado touched down a few towns from mine. I worry about the wind. In truth, my wife and I are tree huggers. Before we ever even saw the house in which we live, we saw a weeping beech, standing some seventy feet or so in height, and pouring down gorgeous leaves; a red maple stood by, almost as tall; the copper beech sends long limbs in every direction, each beckoning. The lane to our house is a tree-lined canopy. We saw the trees and knew we were home before we saw the house itself. But as kind as nature can be, I now worry that the winds will topple one of these giants. I hurried home to see the trees again, before another tornado touches down.

It is summer, and all that grows thrives and reminds me of all I know but do not really understand. I walk the garden and grounds and do not need to pretend what it would be like to live in paradise. I know it firsthand. Thank you, I say, to things unseen.

Some Questions For Elena Kagan

Confirmation hearings for Elena Kagan will take place before the Senate Judiciary Committee this week. There is little doubt she will be confirmed, and even less doubt that she is intellectually capable to serve as a Justice on the United States Supreme Court. The real question is, I suppose, why we are having confirmation hearings at all. They are, as Kagan said in a book review written fifteen years ago, a farce.

The federal Constitution says says that the President can nominate a candidate for the Court, but that the nominee must be confirmed by the Senate. This is what lawyers call black letter law. The rule is written in terms so clear and unambiguous that no two lawyers of ordinary skill and training can disagree about its meaning. Call this part of the cookbook Constitution.

But most of the cases finding their way to the Supreme Court involve matters of interpretation. The recipes for these cases consist of conflicting legal doctrines and social policies often requiring that difficult choices be made. This murky application of doctrine and policy choice requires judges to make judgments. Only in the playscape of current confirmation hearings do we pretend otherwise. The Constitution lives, whether we feed it with honest commitment to principles plainly stated or hide our prejudices with less than honest sleights of hand.

Here are some questions and principles I'd like to see explored with Elena Kagan. I doubt any Senator has the stomach for these questions for the simple reason that they require more intellectual honesty than is typical among members of posturing political class.

1.   What case that you have handled as a member of the bar has most challenged you intellectually and morally? The follow up to this question should be intense. I want to know about what she thinks a lawyer's role is in our society. More to the point, I want to know what she thinks the role of the rule of law is in our society.

2.   Tell us about a case you refused to handle or from which you withdrew because it conflicted either with your personal or professional commitments. If she cannot identify one, ask her how that is possible. Has she taken only cases she agrees with? If so, does she view the law as a means of advancing her own or her clients' interests? If she has refused to handle a case on a matter of principle, what will she do if called upon decide a case involving the very principle should could not support?

3.   What weight are we to give the intentions of the those who crafted the Constitution? If any weight, why do their opinions matter at all given the passage of centuries since the founding?

4.   Respond to the following proposition:  The Federalist Society is merely a social reaction of the intellectual losers in the debates that yielded the New Deal and Great Society. Its doctrinal reach extends not to the founding era, but reaches no further than the 1920s and the 1930s.

5.   What role do you think candor should play in the confirmation of a judge?

6.   Because you value candor, please respond candidly to the following questions. If you cannot, or will not answer these questions, then shouldn't we regard you as lacking in candor?
      a.   Was Roe v. Wade correctly decided? Why?
      b.   Was Citizens United correctly decided?  Why?
      c.   Should our Supreme Court pay deference to emerging canons of international law? Why?
      d.   What role do you believe the Ninth Amendment should play in Supreme Court jurisprudence? Why?

7.   There are no trial lawyers on the Supreme Court. Do you think a trial lawyer on the court would strengthen or weaken the court's role?

Frankly, I do not support her nomination to the Court. I suspect Kagan's answers to these questions would be as vapid as the banter at a Harvard Law School tea party. Perhaps the questions are themselves vapid. Kagan lacks the qualities I admire in a lawyer: Courage in the face of adversity; creativity when called upon to serve in difficult situations; and the humility that comes of living in the shadows casts by the law's great institutions. She may profess humble social origins, but her career has had a simple trajectory: She was to the manor born.

This nominee lacks courtroom experience; her defining characteristic seems to be lifelong sublimation of every impulse toward the master passion to advance to the Court. It is for this very reason that she is something of a cipher. She's played it safe for a lifetime, hoping for the chance tomorrow gives to sing for a lifetime appointment on the nation's highest court.

I would much prefer a candidate with a heart broken by a client's sorrow. The current Court is packed with powerful men and women who have lived apart from the mainstream of suffering humanity for so long that their jurisprudence is antiseptic and cold. Elena Kagan seems the coldest of the pack.

Throw this fish back, I say. Let's have a confirmation hearing where the Senate insists that honest questions are honestly answered. Go ahead, ask this nominee about issues that are likely to arise before the Court. If she pretends to be unable to answer now, ask her how she'll be able to answer later. If she claims it would not be appropriate to answer a question she may be called upon to decide, refuse to confirm her. I have very little idea what this mannequin is stuffed with. Take the gloves off and engage in honest probing.

Or will it simply be politics as usual?

Sex Offenders, Lawyers and the Burden of a Voice

Almost every time I stand in the presence of a group of people to talk about sex offenses and accused sex offenders I face the scorn of those assembled. Few crimes are as reviled; juries and courthouse groupies attend trial hoping for immolation. But today was different. I stood in the auditorium of a church in Washington, D.C., and faced a friendly group. Imagine, a hundred or so folks looking upon me with approval.

I was a guest of the second annual conference on the reforming of sex offender legislation sponsored by a group called, appropriately enough, Reform Sex Offender Legislation. It felt good to be among friends. I know the sorrow they and their families have faced in the relentless and indiscriminate prosecution of these cases.

One thing is abundantly clear: Our laws fail to discriminate between and among the various forms of sex offenses. There simply is a difference between a violent sexual offender and a young man who looked at a few pornographic images of children online or engaged in consensual sex with a young neighbor close in age. But the law requires a one-size-fits-all response to these offenses once a person is released from prison: requiring everyone to register as a sex offender is draconian.

I said as much and more to an audience already persuaded. They've lived on the front lines of this war against over-criminalization and hysteria. I felt today like a prosecutor: preaching to the choir.

At the end of my part of the presentation, someone asked what it would take to get a committee or group of lawyers together from around the country to serve as an intellectual catalyst for change. I told the speaker that I thought there was such support, although it might not yet have taken shape in the form of a formal committee. "You are closer than you think," I said. "You might just be the foot; and I might just be the ass."

I'm sitting on a train thinking about that remark. I've never really trusted movement lawyers. The law is not philosophy. Individual clients come to me and I do not want to be encumbered to anything than the very discrete and tangible interests of my client. No two clients are alike, each brings his or her own menu of issues to the table.

But I wonder, just now. I responded to the call to attend the event because I had seen one client after another socially decimated by the law's unfeeling and unthinking rigidity. I believe reform of sex offender laws is necessary. At this stage, I do not think that there is much the courts are willing and able to do. Most judges adopt a form of intellectual cowardice when things get tense: Like junior officers in the Nuremberg dock, they plead that they were just following orders when they mete out justice with a sledge hammer. They blame legislators for the rules they are sometimes ashamed to enforce.

I believe the front lines of reform will come in the state legislatures. That is where ordinary family members of those harmed by over-harsh laws can tell their stories to those with eyes open to the truth. We say of federalism that the states are laboratories of change. I believe this to be true. I do not believe the federal government is a progressive instrument for change: Its scope is so broad it panders to the lowest common denominator. John Walsh is a hero on the national set; I for one find the 25-year wake for his murdered son to be maudlin.

I don't know whether I am willing to join a committee of lawyers dedicated to changing the law. In confessing this, I acknowledge a certain moral and intellectual cop out. I left a promising academic career at its inception due to a certain epistemological weariness. If there were no larger truths, what was there to teach? The practice of law has liberated me, if not from the dark ghosts inhabiting a dark world, then at least I am liberated from the paralysis and seeming nihilism that comes of a too close familiarity with the leavings of what I sometimes feel is a spent Western intellectual heritage.

But the good people I saw in Washington, D.C., today issued a challenge that echoes. What can be done, they asked, about the suffering their families and friends endure? Implicit in their question was a request for help. I've some soul-searching to do. It's been perhaps too easy to sit on the sidelines and toss gratuitous scorn at visions of the good. Even if there is no certainly as to what goodness requires, that does not prohibit one from opposing unintended consequences resulting in something just this side of evil. I am not saying that sex offenders ought not to be punished; I am simply saying that not all offenses are alike. Voiceless people need others to speak for them.

Whether to become such a voice is a hard question to contemplate.

In re: Tony Tamburello: Are We Supposed To Lose Some Cases?

I hate losing a trial. Period. Put me in front of a jury and I am competitive. I want to win. I'd cross-examine God if I could find him. Mother Theresa? She's a free loader. Yeah, sure, the wages of sin may be death, but I want those wages paid with interest when they're due. Even a junkyard dog needs to get fed.

But I wonder, sometimes, whether there are cases the defense is supposed to lose.

This is a heretical thought that I want to banish to some deeper recess. It makes me uncomfortable to see the words, and to confess that I wrote them. But a story in the San Francisco Chronicle puts the question front and center. It turns out a prominent California defense lawyer, Tony Tamburello, has been selected to serve as a juror in a murder case.

The case turns on the defendant's claim of self-defense. In legalese, a person is justified in killing another when their own life is put in danger. State laws vary, with some requiring that there be no opportunity to retreat before the lethal strike. Other states relax that requirement. Whatever the standard, self-defense cases require close scrutiny of the moments leading up to the homicide.

Tamburello has defended men accused of murder. He knows the defense lawyer's silent ways: Obtain the arrest warrant and police reports. Outline them looking for inconsistencies. Locate witnesses. Interview the witness to see what, if anything, they can contribute. Study the forensic reports. Become familiar with police procedure and the science of police work. Counsel your client on the pros and cons of testifying. Select a theme from among the competing themes, a task worthy really of a Roman augur. And then, as battle looms, summon the courage and preternatural calm that it takes to wade into a room full of blood without drowning.

I love the work of trial. I liken it to an intellectual gladiatorial contest. By the time the gavel falls, I have thought through every potential move. I've studied my adversary, the judge, the law and the evidence. There are almost never surprises at trial for a prepared advocate. Bring me a war, I breathe. I expect to win it.

But I don't win every case. Far from it, in fact. In the weeks following a loss I am all self-hatred. What could I have done better? How should I have handled a difficult witness? Was I too harsh? Did I neglect the jury? The torture goes on until the next war looms. This solitary form of suffering explains, I suspect, my chagrin over the claim of some never to lose cases. I suppose I am jealous, although pride makes that admission hard.

I have longed for many years to be a juror. I want to see the contest from a juror's perspective. When I tell friends this, they snort. "Who'd pick you as a juror?" I suspect folks said the same to Tony Tamburello. I am also sure that he is put together in exactly the same was as am I. He doesn't go to trial looking to lose.

So how does he prepare for this trial, the trial on which he sits as a juror?

If he were the defendant's lawyer, Tamburello would be all warrior. He'd go through his own pre-trial ritual and then appear in the well of the court with his own silent warrior's cry. My cry? When fear paralyzes me as it often does I utter what I used to tell myself before the start of a distance race: "Today is as good a day as any to die."

But Tamburello is not a warrior this time. He is now a juror. He will sit ringside as the combatants exchange blows and then he will make a judgment about whether the state has proven its case. His role is not to win by any means that the law permits. His role is to come as close to the truth as a trial allows.

Tamburello has without question faced cases in which the state had a mountain of evidence. He no doubt found a way in which he thought he could win his case. He fought. He died. Today he still wonders whether he could have won each case he lost with a different, better strategy. Yet from the perspective of the law and facts, I suspect, some of those cases were not likely to be won by anyone.

I have a hard time accepting that conclusion. It sounds like a cop out. Gerry Spence says he never lost a criminal case. I'd like to see him in the well of a court in a gang rape, his client's DNA on the victim, his fingerprints on her clothing, his friends confessing and pointing the finger at him, and the victim describing what it was like to face death at his hands and survive. Win that case and tell me about it; I lost one on those facts, and my client serves 85 years as a result of my failure. I accept the overwhelming character of the evidence in such trials, but I cannot stop fighting. It is who I am; I know no other way.

How will Tony Tamburello make the transition from warrior to fact finder? Some part of me worries that being able to do so yields some deeper concession I am unprepared to make. That's because by sitting as a juror this very fine defense lawyer must be open to the possibility that this is a case the defense can and should lose. What would he do with such knowledge if he were defending the case? Would he even permit it to surface as a realistic possibility?

In the dark places of a holding cell, our offices and in our hearts we have painful conversations with clients about the options they face. We assess the strength and weaknesses of a case. We provide counsel to those who may well be damned before the trial even begins. But in a deeper place, at least for me, we never compromise and are always prepared to fight and die. How in the world can Tamburello leave the warrior's mantle at the courthouse door?

Reforming Sex Offender Legislation

I'll be speaking this weekend at a conference in Washington, D.C., devoted to the reform of sex offender legislation. One hundred or so folks from around the nation are gathering to brainstorm on what to do about a body of law that is often harsh and indiscriminate. I should have reached out to readers here long ago for suggestions, but I didn't. If you have suggestions, please leave them in the comments section here. There's still time for me to amend my remarks.

My sense is that relief must come in the form of legislative action. The courts are simply ill-equipped to do much good. There are rare victories, such as the Ohio ruling by the state Supreme Court removing offenders from the sex offender list because the registration requirement violated the state's separation of powers doctrine. But this rare legal victory can be undone simply by drafting new requirements through the appropriate branch of government. Politics is where relief will come, not the courts.

What I see behind closed doors is frustration among judges and prosecutors in the following areas:

1. Requiring prison time and making felonious the violation of so-called Romeo and Juliet laws. These statutes typically involve claims of statutory rape between a minor and a suitor close in age. Consent is not a defense in these cases, and prison is mandatory. My sense is that there is support for legislation eliminating the requirement for prison time in such cases. It might also make sense to downgrade the offense from a felony to a misdemeanor to avoid the disabling effect of a felony on a young person's career chances.

2. Elimination of mandatory prison time for Internet-related crime in which there was neither attempted nor actual physical contact with another person. Many states and the federal government now require prison sentences for possession of even a handful of pornographic images of children. Judges often despair over the rigidity of statutory schemes requiring imprisonment of defendants in which there are no tangible victims proximately related to the possessory offense.

3. Increased accessibility to diversionary programs for those accused of child pornography offenses. Connecticut, for example, recently enacted a new psychiatric accelerated rehabilitation program. This program permits folks to submit to a period of probation and to get treatment for mental illness. If the applicant successfully completes the program, the criminal case is dismissed. The only problem with this law is that lawmakers have decreed that it is inapplicable for those accused of possession of child pornography.
This legislative decision should not trump medical judgment.

4. Elimination of mandatory prison time for non-violent sex offenses. Lawmakers can easily and constructively express social disapproval of deviant conduct by rewriting these statutes to create a presumption in favor of prison time. But this presumption should be rebuttable for good cause shown.

5. The current mania over sex offender registries is little more than moral panic. The overwhelming majority of sex offenses are committed against victims by family members or caregivers with direct and consensual access to the victim. Sex offender registries are fueled by fear of stranger danger. Putting a man who abused a family member on a public registry merely stigmatizes an offender who little danger to the community at large. There should be a broader use of law-enforcement only registrations. These lists should not be disseminated to the public.

There is traction for these ideas among judges and prosecutors. When no one is watching, and they are free to speak their mind, judges and prosecutors are often in despair about a law too rigid in conception, and too inflexible in implementation to serve the ends of justice.

What other options have you heard mentioned behind closed doors?

Blumenthal Claims He Was The Mystery Kisser

Alfred Eisenstaedt is dead at 91. His photographs have become an inchoate part of the national psyche. One photograph, that of a young sailor kissing a woman at Times Square when the Japanese surrendered in World War II, has long been shrouded in mystery. Just who was that soldier?

Connecticut Attorney General Richard Blumenthal, now running for a seat in the United States Senate, solved the mystery today.

"I am the secret kisser," he said, noting quickly that he was not married at the time. "I did not see anything inappropriate or unbecoming in this innocent exuberance," he said.

Mr. Blumenthal promised another press conference to explain how his role as military Romeo could be true given the fact that he was not born until February 1946. An aide explained that the attorney general might have confused his wars, noting Mr. Blumenthal's "timeless devotion to those who serve."

Here's the photo. Wrong war, Dick.

Too Much Truth Cost A General His Job

We took a tremendous national risk when we elected as president a man with virtually no experience in foreign affairs. But we wanted change. So we elected Barack Obama and made him commander in chief of the armed forces. Little did we know we'd bargained for a man with the sensibilities of a momma's boy.

Obama was all gravitas and suppressed rage when he fired General Stanley A. McChrystal after a brief meeting at the White House. McChrystal was the United States' top gun military commander in our engagement in Afghanistan. The general and his cronies had the misfortune of lowering their guard and ranting some over drinks one night. They did so in the presence of an embedded journalist for Rolling Stone, who dutifully reported what military brass sounds like when knocking back a few cold ones.

I hesitated about what to call our presence in Afghanistan. The politically correct term is war, as in we are at war against terrorism. But other words spring to mind, words like occupation. We barged into Afghanistan almost a decade ago looking to clean house, dislodging the Taliban from power and looking to ... well, what, exactly?

My sons did not die in Afghanistan. Neither did they serve in the military, although they were of an age when they could have. But when we'd talk around the family table about the world, we never could make sense of American objectives in the land that so famously fought off the Russians. Afghanistan is stocked with a proud and ferocious people. I simply cannot imagine they are pining away to become the 51st state or desire Walmart franchises.

We couldn't imagine what it would be like to awaken to see foreign troops patrolling our streets, speaking a different language, engaging in religious practices at odds with ours. We've watched classmates of my sons become soldiers. We've wondered whether eyes glassy with hope will return dull with horror, or even return at all. And we've read that suicide rampages through the ranks of soldiers pressed hard against the unforgiving mountain ranges and even less forgiving people of a land foreign not just in terms of geography but also in terms of spirit.

General McChrystal and his command staff are valiantly living this nightmare. They are following orders, doing their best to meet a rising tide of insurgency, trying to win the hearts and minds of a people who shown no real signs of wanting to be seduced. The general and his men and woman are warriors. They are doing their duty and facing death, one day and one soldier at a time.

It is no great crime to wonder whether this nation and its top civilian leadership has any idea what it is doing in Afghanistan, or, for that matter, Iraq. President Obama has no coherent strategy beyond indefinite occupation. His soldiers may well be men of duty and honor, but they are not machines. Only a fool can behold the mess in Afghanistan without doubts and sorrow. Does Obama want fools as commanders?

We permit journalists to become embedded with our troops. We give them access to the front lines and then want reports that are honest. But apparently, we do not want too much honesty. We want pictures of reality scrubbed clean of inconvenient truths. A journalist sat with the general and others and listened to soldiers gripe about navigating in hostile waters with no real map. We are adrift. I suspected as much.

President Obama's decision to fire McChrystal had the elegance of a firing squad. Too much truth cost the man his job. The president wants to portray a united military leadership. Dissent is not tolerated. But united behind what, Mr. President?

Strutting around the White House playing angry peacock isn't persuasive. By signaling to the nation's men and women at arms that private candor is a crime, the president signals far more than he intends. Bury your doubts, he tells all. Follow without questioning. Trust. Obey.

And if the doubts become too much, well, you can always just kill yourself, as so many of your colleagues have done. But tell us, Mr. President, why must a foreign policy without vision result in a suicide pact for either offices or the nation? Firing the general was a rookie's mistake that will cost of us much in the eyes of the world.
 
Reprinted courtesy of the Connecticut Law Tribune.

Updated: So Long To The Torporsphere

It happens everywhere and without fail. A group forms, and someone decides that rules are necessary. Jesus loved the world, then along came the Church. Before you know it, a religion of universal love drew lines between the saved and the damned, the orthodox and the heretic. I accept that anarchism is a dream requiring far too much work to make a living reality. Rules simplify. I suppose rules are necessary. But it doesn't mean I have to like it.

Are there emerging standards of orthodox behavior emerging in the blawgosphere? Perhaps. There's been a lot of chatter on line recently about the slackoisie and now a new category has emerged, the happysphere. This latter place is where sissies dwell, apparently. Those who can't take the rough and tumble of debate on line are invited to tune out.

I accepted the invitation today, and took Scott Greenfield up on his standing invitation to have him remove a reader's blog link from his page on demand. I've nothing against Scott. I've read Simple Justice since its inception. Until recently, I looked at it daily simply to see what issues Scott spotted. I admire his range of interests and envy his obvious talent. Imagine covering the legal world in 10 minutes a post times three posts each day. He gets more done in half an hour than I do most days. (He contends his blog is but a moment's inspiration, something done with the morning's coffee and before the workaday tasks of lawyering begin.)

Scott's Herculean intellect and energy give him a special place on the blawgosphere's Mount Olympus. Fledgling writers and lawyers cower in hopes of a favorable mention, all the while fearing his thunderous grumble. I can't help but wonder, sadly, whether this has all gone to the good man's head. Railing against the slackoisie, ridiculing those who seek his approval and fear his scorn by denigrating them as Happysphere wannabes, has the cliquish appeal of the darlings riding with the high school homecoming queen in dad's convertible.

The Rule of the Eleventh Man is in operation in the blawgosphere. It is an ironclad rule of social psychology, so near as I can tell. I claim pride of authorship here, so pay attention.

Whenever a group forms around whatsoever interest or preoccupation, the first ten to arrive share a sense of charismatic wonder over having found one another in a world of strangers. This innocent joy is spread among the happy clan. The group is small enough that no real leader need exist. But the group's pleasure attracts the interest of others, who want to share in the good fortune. Because the group has no rules and no norms, the eleventh man enters, expecting to share the innocent glow. But now the group has become just large enough that standards of behavior and membership emerge. An inchoate sense of orthodoxy takes root, and soon some one or two among the group articulate the standards expected of group membership.  The eleventh man, unless he toes this new line, is always a heretic, and the heretic always loses.

Of course, I have no idea whether it is really the eleventh or the fiftieth member of a group that represents the tipping point. But the point remains. Charisma is almost always reduced to something less inspiring. This rule knows no exception.

I've checked out of the blawgosphere twice now. First, after Mike and I more or less burned out at Crime and Federalism, we both moved on to other things. Now we are both back, writing about a broader range of topics on separate pages. On another occasion, I grew weary of the sound of my own voice and the demands of the few readers I had acquired. I pulled the page down, to the surprise and chagrin of some who still don't trust me as a result.

But I am back again. I know better than to walk away from writing this time. I simply enjoy it too much. So I will keep pecking away for the few who read, and I am grateful to them for reading. I admit, I enjoy being read -- that's why I write.

This time I am simply trimming my sails for the time being and pulling back from several pages whose authors have taken a turn in a direction I don't care to go. The struggle for leadership of the blawgosphere, and the right to set standards for what may be written and how it should be written, simply doesn't interest me. It has the feel of a schizophrenic staring into the mirror to make the acquaintance of the multiple personalities raging within. I see but one person staring intently into the glass. But there is now a strange ferocity in their eyes.

I call the zone I am leaving the torporsphere: another replay of the Rule of the Eleventh Man and the imposition of orthodoxy in a newly formed group. It may be an intensely interesting game and pursuit for those who want to share the huddling warmth of the ten orthodox souls, but I've always preferred the company of the eleventh man.

I'll miss Scott. I've spoken to him and he is a great guy and a good and wise lawyer. But the persona emerging on his blog page is a phase I am hoping he will soon outgrow. When he does, I will once again count Simple Justice among my daily reads.

Update: My wife from time to time reads my blog, a terrifying ordeal for me.

"Whose Tannebaum?" she asked last night while looking at this piece.

 "A lawyer in Florida. He's a big deal, president of the bar or some such. Why?"

"I can't figure out what he is saying," she said.

"Did you read the piece he was commenting on?"

"No," she said. "I tried. It was too boring."

Ouch. As I suspected. Our internecine sniping doesn't engage more than a handful of folks. I should have stayed away from this topic and walked quietly away.

A Note To The Trial Lawyer's College Anonymous Critics

I receive a steady diet of emails from folks critical of Gerry Spence's Trial Lawyer's College. Most of the emails are from anonymous writers. I asked one of them who they were the other day. The response startled me: The writer wouldn't give a name, but suggested that they are still affiliated with the college and were afraid to shed the cloak of anonymity.

Well, that's not quite true.

The writer was not anonymous. Rather, the writer sent a note under a pseudonym, claiming to be Rose Johnson.

Insiders know this hybrid pseudonym packs historic punch. Bob Rose and John Johnson were two of Spence's dearest friends at the time the college was created. Both are dead now. (Note to conspiracy theorists: Spence did not have them killed. Old age and disease claimed them.)

But here's what I don't get: If you care enough to write to me about goings on at the college, why don't you care enough to take a stand of your own? Writing me furtive notes under a pseudonym about your mistrust of Spence, or referring to Rex Parris as a thug, or questioning the financial integrity of the relationship between the college and the Spence Foundation are all issues suggesting a more than modest disagreement about what's going on under the Wyoming skies. I say vote with your feet, not with your fingers.

The writer told me they would miss friends and business opportunities associated with the ranch. Okay, I get that. I strained friendships, and lost friendships, over my decision to leave the flock. When I raised still unanswered questions about goings on at Thunderhead, I rubbed salt in old wounds. When I was "hot" on the DuBois circuit, folks called often from around the country to discuss cases. I even travelled here and there to help a friend on a case. I've let those contacts grow cold, and I miss them.

But it was the principled thing to do. It wasn't smiling by day at the cook house and then slipping off to the nearest Internet hot spot to dash of a note about the latest hypocrisy. If you are upset that some $15,000 has just been spent on a new web page, then don't support the effort. If you think Jude Basile is a well-meaning lightweight, tell him, not me.

Truth be told, I miss plenty about the college. In spite of my public sparring with Spence, I still regard him as a great lawyer. I miss the man even though I am wary of him. The other day I received a nice note from him about something I had written on this site. To say I was surprised to have him as a reader is an understatement. I know I've been a burr under his saddle, but at least when he has something to say, good or bad, he says it.

I have friends still active in the college. I wonder why they spend so much time and effort on a project so far from home. It's sort of like watching a young person go tour the world to get a first-hand look at poverty: Want to do justice? Let me show you a courthouse down the road. Want to ease poverty? Visit any city. But to each their own.

And if you are curious about what Spence is really like, file an application to attend a program he's offering. A youngish lawyer I respect and admire asked me questions about the place not long ago. They were honest questions. I encouraged her to apply to the summer program and my firm has offered to pay part of her tuition if she is admitted. I've had a look and my say about the place; she should form her own views. She just might well teach me something.

There are a lot of crazy, whacked out wannabes wandering around Wyoming this summer, all trying to be themselves, just the way Gerry tells 'em they can. Many lack the courage or insight to sense the irony of their pursuit. But they are at least there under their own name and telling their stories to any who will listen with the honesty they can muster.

Is transparency and honesty too much to ask of those casting stones? I don't mind picking fights with anyone over anything. My record as a cantankerous contrarian is well established and speaks for itself. I don't mind sticking up for the little guy, but I don't care for being used.

Next time someone sends me a note fault-finding the Koolaid at TLC, please sign your real name. Otherwise, your communication might just go unread.

Law School: Grades Don't Matter

"Where is he in law school?"

The question was natural enough. A good friend asked it of me after I raved about one of my summer associates.

"Good question," I responded. "I never thought to ask."

She was incredulous. Not only had I never inquired about where the young man went to law school, I had no idea about his class rank. All I knew was that he had bounce. That was enough for me.

The conversation took place a few years ago. (I note the time qualification so that none of the three interns we have wandering around this summer get big heads.) I was reminded of it reading this morning's piece in The New York Times about law school grade inflation. The simple truth is that grades do not matter. I wish more law students realized that.

News that schools such as New York University, Tulane and Loyola are going to boost the grade point averages of students to make them appear more competitive on the open market is a sign of something akin to moral bankruptcy. Are firms hiring lawyers supposed to be fooled by grade inflation? The very notion that law school administrators would take this step to assuage the feelings and sensibilities of students graduating with mountains of debt and degrees of little utility reflects a stunning poverty of vision. Creating a Potemkin village for commencement services won't make the future of most young lawyers any brighter.

The fact is that brilliant lawyers with glowing resumes are a dime a dozen. Pluck some kid from Harvard or Yale and stick 'em in front of a computer. In no time flat you'll have a great brief on any conceivable legal topic. Sadly, almost all such briefs read the same. In truth, many lawyers from other schools could do just as well.

What can't be tested for or graded in law school is bounce, the ability to read a person, a judge, a jury and size up the social and emotional vectors that make a moment unique. That is a function of social intelligence, the most valuable form of intelligence for a lawyer. People, flesh and blood people, have conflicts; legal doctrine takes one only so far. The wisdom to know what to do and when to do it distinguishes the wheat from the chaff in the law as in any profession.

A lawyer must know his or her own story, the forces that have made them into a person with a discernible character. The lawyer must then learn how to recognize all that moves her, including her own feelings, a topic that makes lawyers of a certain generation and temperament squirm. A good lawyer learns to discern what motivates his client, his adversary, and how to meet the challenge of a given conflict with the legal doctrine at hand. But here is something they can't teach you at Harvard, Yale or any other law school: Being an effective advocate is a question of heart not head. Grades don't measure people sense.

Grades don't matter, I tell you. In the course of my legal career I have been involved in hiring decisions for dozens of lawyers. Not once have I asked about grades. Rarely have I even asked what school they graduated from or their class standing. What matters is a lawyer's ability to speak a coherent sentence, to stand when others would fall, to recover from the inevitable sorrow that makes a lawyer's life unique.  This quality is bounce, and I can tell whether someone has it within the first interview.

You can make a better writer and a more competent researcher out of a lawyer with bounce, but you can't make a law review wizard respond to the human dimension of our work if he lacks heart. Papering over a generation of young lawyers with the fool's gold of a glowing transcript tricks no one.

Shame on NYU, Loyola and the other grade-inflating ninnies. If your graduates can't get jobs how about doing something to actually prepare them for work in the real world of lawyering? How many schools require students to take a course on mental-health issues affecting litigants? How many schools require students to read great literature or the classics? How many schools insist that students get out of the classroom and into a courtroom, prison or juvenile detention center? Not enough, I say.

I am thrilled with the quality of young lawyers who come knocking on my door looking for work. Most don't stay very long. The pressure destroys some; the allure of easy money distracts others. But those who stay in this line of work have heart. They had it when they got here. All I do is try not to break the hearts they bring; I sometimes fail.


All of which to say that law school grades, like size in certain other pursuits, really don't matter: What matters is how you love, and that is something you aren't taught in law school. Or, if you are taught at all about love, it is to love the wrong thing. Let me say it again: Grades don't matter. Smart deans know that.

Judas and the Judge

Tomorrow George Leniart will be sentenced as a capital felon. The state did not seek the death penalty. Why? Because the state had no body, no tangible proof that there was, in fact, a murder. But it went ahead and charged Mr. Leniart anyhow. It did so based on the word of several jailhouse informants. It did so by arguing to a jury that a prior guilty plea to a rape means he must have raped again, only this time killing and disposing of the body such that no sign of it has ever existed, anywhere.

The sentence the court must impose by statute is life without the possibility of parole. The court has no choice. Oh, it can stack some time on top of the only life that Mr. Leniart will live and call it justice. But such concurrent time is meaningless, a fool's errand.

The courtroom will be filled with thrill seekers of a different sort, all coming to see the hammer fall. The press will be there. Law enforcement officers will be there; indeed, lawmen have already thrown themselves a banquet to congratulate themselves on getting a conviction in this case. They believed Mr. Leniart to be a bad man. So they congratulate themselves on having Mr. Leniart behind bars for life, but the sad fact remains: the lawmen failed to solve the murder. They have no body to show the grieving family after 15 years of looking. What they have is half a case. What they have is the hope this speculative mound of evidence means what they say it does.

That the case was enough to convict Mr. Leniart does not surprise. Three jailhouse snitches came to court and ran their mouths about the things they contend Mr. Leniart told them. The stories do not match. The boy who was with Mr. Leniart and the victim the night she was last seen testified about what he did that night. He testified that he was only trying to mess with his father's head when he confessed to killing her.

Mr. Leniart sought to call an expert on jailhouse informants and the powerful pressures brought to bear on hopeless men locked in cages. The expert has testified before Congress, written scholarly articles and a book; she teaches law. But the judge muzzled her. The jury never heard a word of what she had to say. The trial judge concluded that it was within the province of the jury to know what kinds of games lawmen play with the heads of those locked out of sight and mind. On what planet do ordinary people know the look and feel of a cell?

Oh, that the judge were as sparing with the state's evidence. She permitted a woman who claimed she had been raped by my client just months before the victim in my case went missing. This woman was a drunken child at the time of the alleged rape. She described being strangled to the point of passing out, and awakening to see my client on her still. Armed with this vivid image and an isolated alleged comment to an informant, the state argued that the missing victim in this case was killed in just the same way as the all-too-real victim was raped and assaulted -- by a strangulation, only this time gone too far.

I argued that my client could not get a fair trial if evidence of the prior bad act were admitted. All that linked the living victim and the missing person was some chatter from a jailhouse snitch. No physical evidence corroborated the claim. The jury was invited to speculate that Mr. Leniart killed one girl in the same way he had assaulted another.

The rub in this case is that the judge slated to try the case was by consensus of all the lawyers involved in the case unlikely to admit the evidence of the prior strangulation. Had that judge tried the case, my client would today be free. But the judge got sick, and a different judge, this one recently a prosecutor, donned the robe. The consensus now was that the evidence would be admitted. It was. The result is mandatory life without possibility of parole for a man convicted because of allegations of a prior bad act. Forgive me if I call this something less than justice.

Tomorrow the courthouse will fill with groupies looking for a show. We have decided to say little and to save our words and hopes for an appeal and a new trial. When I look at the judge I will end such remarks as I make with the simple story of Jesus and Judas at the last supper. As Jesus and the disciples supped, Jesus knew Judas' intent. One of the other disciples turned to Jesus to ask what was the matter. Jesus looked to Judas and said: "That thou doest do quickly." So it will be from my lips to the judge's ears.

Impose the sentence you must, judge. The die is cast and was cast as a consquences of decisions made at trial about what a jury can and cannot hear. We do not expect justice. We expect a life sentence. Impose it and do so quickly. Let's end this charade so that we can seek justice in another court on another day.

Humanitarian Law Project's Slippery Slope

Today's Supreme Court decision involving material support for terrorist organizations leaves unanswered a question the Government apparently argued and dissent framed: Can a lawyer be prosecuted for representing a terrorist group before the United Nations or even the Supreme Court itself?

The simple answer is that the Court did not decide this issue. A more complicated question is what will happen when this issue reaches the Court, as it inevitably will.

By a vote of 6-3, the Court upheld application of a statute making it a criminal offense materially to support  known terrorist organizations. The Court rejected challenges that the statute was so broad as to be effectively without standards for determining when it should be enforced, in violation of the Fifth Amendment, and challenges that it violated the First Amendment's companion rights to freedom of speech and association. The narrow scope of the ruling is cold comfort to civil libertarians.

The statute applies only to those organizations deemed terrorist by the State Department. A group so designated may appeal the designation within 30 days. In the case decided today, several groups and individuals challenged whether material support of a Tamil and Kurdish group was prohibited if it involved no more than the provision of "training," "expert advise or assistance," "service" or "personnel' to a designated terrorist group. The Court's majority opinion, written by Chief Justice Roberts, took special pains to limit the Court's holding to these four types of material assistance.

Those looking for a bright line through this dark wood of error should focus on what appears to be the test for distinguishing material support from mere support. "The statute reaches only material support coordinated with or under the direction or a designated foreign terrorist organization," Roberts wrote. Presumably, work done in support of a terrorist group but neither coordinated with the group nor directed by the group remains protected by the First Amendment.

This is a mighty thin line. The Court's sub rosa importation of the independent contractor/employeedistinction  will no doubt prove troublesome in cases to come. How do we determine when a person supporting a group is working independently or under the control of the group? While that question might be easy to determine, the question of when a supporter's activities are coordianted by a prohibited group is of necessity a far murkier issue.

At its core, the Humanitarian Law Project decision disturbs because of its reliance on the slippery slope sort of argument that justifies any assertion of government power. Although the plaintiffs in this case argued that their purpose was merely to teach groups how to petition the United Nations, Congress and other bodies for relief, the majority held that these services, which translate easily into money, are so fungible that they might free up resources for violent uses. What's more, diplomatic efforts might become time-buying ruses bent to the service of terrorist intent. All cows, Hegel once observed, look alike in the gray twilight of evening.

The dissent shreds this reasoning, and suggests that whatever deference the Court should give to findings by Congress and the Executive branch about the practices of terrorist organizations, the right to advocate for peaceable change is a core Constitutional value of ancient and venerable lineage. Frankly, I think the dissent has the better argument. Once the slippery slope analogy is adopted, there is no stopping the slide into tyranny. Consider what has become the Fourth Amendment's "reasonableness" requirement as to searches and seizures.

I read Humanitarian Law Project with a gnawing sense of uncertainly, recalling that in the days immediately post 9/11,  I was contacted by the embassy of a Middle Eastern country to represent a foreign national. The man was in custody. They feared that American intelligence agencies were working him over. It turns out those fears were unfounded, but I wondered, as I traveled to the prison to meet him, whether my Government would consider me an enemy, too, for insisting that anyone in the United States was entitled to the full protection of the law.  As the dissent in Humanitarian Law Project make clear, that question is far from decided.

I vote with the minority on this one. It ought not to be a crime to teach people to use peaceful means to accomplish their ends.

Westlaw's Lightning Fast Response

I wrote the other day about my decision to stop doing business with Westlaw. My primary complaint was that the firm's billing practices are at best Byzantine, although the practices lack the charm of the exotic. Readers from across the country responded. I am not the only person who Westlaw has taken for granted.

It turns out that Westlaw can respond when it wants to, so I need to correct the impression that the company cannot find it's hindquarters with either hand.

We informed our local sales representative that we were taking down our web page from the Findlaw account, a subsidiary of Thompson West's, and moving elsewhere. Guess what? The page came down in record time. We're naken today with no online presence for the first time in years. Alas, poor Internet.

So here's the moral of the story: When West has you in the grips of a contract from which it can extract a dollar by squeezing, it will twist until your accountant weeps. But on a month-to-month contract, the moment you stop paying, the company stops playing.

West can listen when it wants to. It can respond when it is in the company's interest to do so. Hence proof positive that the company could be responsive if it wanted to be on other matters. It just doesn't care. It just wants to get paid.

CNN: Time For A New King?

It looks as though I will have to act fast if I ever hope to land a spot as a guest on the Larry King show. The king of CNN has but a year left in his contract. At 76, with ratings flailing, King is no longer the thing he once was. Rumor has it that CNN is clueless about his replacement.

All lawyers like being on television. Anyone who says otherwise is lying. It's fun to plead a case before millions. I've blabbed away on many shows I admire, and some I don't: I've had a shot at 60 Minutes, The Today Show, Good Morning America, Geraldo Rivera, Inside Edition, something or other with Sam Donaldson, and a bunch of other segments of brief notoriety. (My favorite? Diane Sawyer. She would have been dynamite in a courtroom: she has an instinctive ability to connect that is uncanny.)

But I have never done Larry King. Or, rather, King has never done me.

I suppose that is because I am decidedly uncool. King speaks with easy familiarity to and about the rich and powerful. He confers some sort of secret membership to a club I've never been invited to join merely by saying hello. Alas. I never made the list of cool kids in high school either. Come to think of it, I've never had a chance to talk to Don Imus, either.

A report in this morning's New York Times trots out names of the usual suspects as potential replacements for King: Katie Couric, Brian Williams, Piers Morgan. Even Eliot Spitzer's name has been thrown into the mix. Please, say it ain't so.

It's time for new wine. I mean Larry King didn't spring fully formed from the brow of Lord Network. King apparently got his start in decidedly inglorious surroundings. He was the color commentator for the Shreveport Steamer of the World Football League. King is an acquired taste.

I've a proposal for CNN. Break the mold. Turn your back on the established personalities and media darlings of the day. Create a new king, even as you created King.

Americans love the courts and crime. We're thrilled when a politician tumbles and is exposed as venal. Each of us is passionate about what justice requires, even if few of us agree on what is just. And we all love stories. So why not a storyteller on CNN? Someone familiar with the courts? Why not, since we won't pick one for the Supreme Court, a trial lawyer?

The great and colorful voices of King's generation are, like King, perhaps too long in the tooth to want to bite down on a new commitment. Gerry Spence is in his early 80s. F. Lee Bailey, though sharp as a tack, seems content these days to take it easy. Sure, Mickey Sherman is always available, but he is, well, Mickey Sherman. It's time for a new generation.

Oh, I know about Nancy Grace and the former blonde judge from Court TV whose name I cannot recall. But why do prosecutors and judges get to have all the fun? Who speaks for the defense on prime time? Anyone?

How creative is CNN prepared to be? Will they turn the time slot over to a trial lawyer? What not create a new star? Scott Greenfield over at Simple Justice has developed a following with a simple formula: three opinions a day, day in day out, and a web of friends and contacts stretching coast to coast. He has a distinctive voice.

Of course, if he declines, I have another candidate. He also has a voice, although not so well known. He's opinionated, brash and also loves the limelight. What's more, he's wanted to appear on King's show. C'mon, folks. Try a virtual unknown. Give me a shot. I am at least as entertaining as a color commentator for the WFL. And I cost a lot less.

Smart Thinking In Philadelphia's D.A.'s Office

There may be hope after all, at least in Philadelphia. R. Seth Williams, the city's new district attorney, is doing the unthinkable: he's trying to get smart on crime. In Williams' mind that means something more than throwing the book at everyone who makes a mistake. It means making an intelligent assessment of what is worth prosecuting. Would that there were more prosecutors like Williams.

It is too often the case that police and prosecutors disclaim responsibility for their actions: If they detect what they think is a violation of the law, arrest is automatic. It is then left to the criminal justice system to dispose of the new case on terms it deems just. After all, it is lawmakers who define what is and is not a crime.

This is the coward's way out of really reading the separation of powers clause extant in virtually every state constitution. Good government is not the stuff of mindless automatons, each marching lock step to the silent rhythm of Big Brother's respirator. We ask homeowners to "call before you dig" as to hidden power lines on or near their property; is it really too much to ask prosecutors to think before they prosecute?

Lawmakers are often detached from the consequences of the decisions they make. It is easy to posture deep in a legislative cocoon about the need to get tough on crime. Each year, there are new crimes, new mandatory minimums, new bandages to slap on the gaping wounds of a society rubbed raw by an economy that doesn't work and a melting pot boiling over with rage. We expect too much of the courts when we ask the criminal justice system to dispose of every errant soul detected on law enforcement's radar.

In Philadelphia, Williams is traveling to schools, talking to kids about the importance of hope, of good grades, graduation and taking control of a future that too often looks frightening and foreboding. What's more, he is directing his office to plead out lesser offenses such as the possession of marijuana, a cocktail rolled in cigarette papers, from jail time to community service.

Williams knows he has bigger issues in the city of brotherly love. The city has the highest per capita murder rate of any city in the nation. Its conviction rate for these offenses is at the bottom of anyone's list of statistics. Williams hopes that by focusing on what matters, city residents will not only feel safer, but also be safer.

Of course, Williams has critics. The former D.A., Lynne Abraham, thinks Williams is a little too cozy, even if unintentionally, with the Mexican drug cartels, who will benefit from the city's new more lenient marijuana prosecution policy. That's just silly. The war on drugs is a resounding failure. The city tries as many as 4,000 marijuana cases a year. Disposing of these cases with something less than trial will help the city more intelligently focus scarce criminal justice resources.

I like what I am reading about Williams. He's making intelligent decisions as a prosecutor, a feat all too rare in the nation's courthouses. Keep an eye on this prosecutor. He's going places. I hope his message of intelligence use of prosecutorial discretion spreads like wildfire.

The Nigerians Aren't Alone In Fostering Internet Scams ...

... So is the Democratic Party. I got this email this morning. Apparently, I have some sort of account. See for yourself. I have an account number and everything. There is even a date the account was opened.

The only problem is I have never made a contribution and I do not recall ever opening an account. Could it be that the Democrats are resortint to fraud to raise money?

Mind you, I am more sympathetic to the Democrats than the Republicans. But Internet scam artists all deserve scorn. Shame on the Democratcs.

Here'a copy of the email:

Supporter Number Supporter Name Supporter as of Contribution Status
5678697 NORMAN PATTIS 04/08/2008 Pending

Dear NORMAN,

We were reviewing our supporter records and saw that you had not yet made an online gift to the DSCC. The November elections feature a huge and ever-shifting map. And Karl Rove's American Crossroads group just announced on Friday that it is turning the full force of its fundraising machine against no fewer than eleven Democratic candidates.

The DSCC is counting on every one of our grassroots supporters to defeat Republicans and defend President Obama in November. We can't win without your help. Would you consider making a contribution today? Even $5 will make a difference in races from coast to coast.

Please click here to make a gift of $5 or more to the DSCC.

When you give to the DSCC, you'll become part of a powerful grassroots force that has helped elect 14 new Democrats to the Senate since 2006. There is no path to victory in November without the support of committed Democrats just like you. Please consider making an immediate donation.

Thank you.

J.B. Poersch

P.S.: Even a gift of $5 will make a difference in November. Please become a supporter of the DSCC today. We need your help to win in November!

Elena Kagan: Privilege Is Boring

Only The New York Times could publish a piece of middle-class hagiography and expect readers to gush. Me? I read this morning's piece on Supreme Court nominee Elena Kagan's family with a sense of seething discontent. Another child of privilege movin' on up, or so it seems to me. I wanted to throw away the complimentary silver spoon that came with today's edition of the paper.

Ms. Kagan's father was a progressive lawyer and graduate of the Yale Law School. Her mother was a teacher at Hunter College High School. The couple worked together, played together, raised a family together. Ms. Kagan's brothers are accomplished and charismatic in their own right. The Kagan family piece in the Times felt like an episode of Leave it to Beaver; you know the episode, the one in which an Encyclopedia Britannica salesman drops off the new volumes and the family cancels their vacation to the Jersey shore so that they can sit home and read each and every volume, starting at A.

The Senate Judiciary Committee is set to begin nomination hearings on Elena Kagan on June 28. At those hearings, Senators will probe whether she is fit to become a Justice on the United States Supreme Court. There is nothing in the record thus far assembled to suggest that she is not as intellectually capable as any of thousands of lawyers in the United States. There is every indication that she will be confirmed if for no other reason that she exudes the drab sort of conventional brilliance typical of a Mensa conference: whatever eccentricities she has are all of a predictable sort.

This morning's puff piece in the Times proved Tolstoy right: "Happy families are all alike; every unhappy family is unhappy in its own way." So Elena Kagan sprang from the granola-like innocence of Manhattan's Upper West Side. Didn't Diane Keaton once express the sensibilities of this crowd with perfect pitch when, in a film directed by Woody Allen, she said: "Lah-Dee-Dah"? Simply put: The bed of privilege from which Kagan arose each morning interests far less than what she did when she picked up her bed and walked.

I am moved far more by the life story of Clarence Thomas, a child abandoned by his father, raised amid poverty and cared for by grandparents. Much though I dislike his jurisprudence I can at least find something resonant in his biography. I suspect his life story resonates with more Americans than does that of Elena Kagan. So, too, the story of Sonya Sotomayor. Go ahead, call me a bigot, but haven't we had enough upper middle-class white people calling the shots?

Life's privilege rarely result in life-defining challenges. What is taken for granted is rarely noticed. I know this to be true from my wife's biography. Her mother was a Harvard professor, and the life my wife led shared many things in common with that of Ms. Kagan.  But what defined my wife was the shattering experience of seeing her father whisked off to federal prison for failing to take an oath of loyalty to the United States during the 1950s. She recalls still visits to a federal correctional center to see her father. She has a life-long sense of wonder about why a different vision of social justice is enough to make a man a criminal. I understand this secret sorrow of my wife's family; this sorrow is uniquely theirs.

If Elena Kagan has struggled in her life it has been a struggle devoted solely to the main chance: Hers is the master passion to succeed and bent to the exclusion of all else. She stands poised to become a Justice simply because that is what she wanted from a young and tender age. Forgive me if I find this tale of ambition-soon-to-be-consummated morally tedious.

The law is about broken dreams, passion recklessly spent, hope redeemed and the terror that comes of the irrational's confrontation with the claims of reason. These struggles are lived daily in a place Ms. Kagan has read about but rarely experienced, a courtroom. It chills me to see another brilliant automaton take a seat on the Court. Ms. Kagan is a fellow American and a fellow lawyer, but she lives in a privileged bubble. She could as easily be corporate counsel for a bank as dean of the Harvard Law School. She knows all the right and beautiful people. She is, sadly, a woman without discernible qualities other than a dogged determination to color within the lines.

Ms. Kagan will be nominated and then confirmed to sit on the Supreme Court because she fits a mold that President Obama does not have the courage to break. How long before we have a trial lawyer on the Court, Mr. President? How long?

Must-See TV For Every Criminal Defense Lawyer

Too bad he's not Gerry Spence. Every shot would be a swish.

Father's Day and the Shadow of Things Past

I usually try to go into hiding on Father's Day. The Hallmark holidays strike as little more than marketing gimmicks. But the real reason I hide is that I am just not ready to be a father. I never was. And now my children are all in their mid-twenties. Come Father's Day, I am all regret and fear. I wish I had known how to love them better. They deserved so much more than I was able to offer.

You learn to become a father by being a son. This much I know. But my father fled the simple responsibilities of fatherhood when I was just starting school. My mother and I were very much alone in a wide, wide world that seemed far from welcoming. She was brave, my twenty-something mother, shuttling us from rooming house, to house-shares, to apartments. When a man moved in who didn't care much for me, I knew to keep my peace. She was doing what she needed to do. I needed to keep my head down, my mouth shut, and prepare my own plan for survival. So I did just that.

It did not help things that this new man of hers came to despise me. He would bait me, trying to get me to fight him in his perpetual drunken rage. I knew there was a right to remain silent before I knew there was a Constitution. I exercised mine to keep the peace; he'd hurl curses and invective at me, and I would simply stand, looking and waiting for yet another storm to pass. But his was a rage that must be slaked; if I would not yield satisfaction, he would find others who would. One night he beat a man badly with a baseball bat. The man's friends were reportedly on their way to our home to kill my mother's lover. He stood waiting for them in the front of the house with a gun. I had a different gun and waited out back. It was one time I prayed earnestly. I wanted the angry men to come and kill him, and not to appear first out back, where I stood guard. This is the Detroit I remember.

This man did not teach me much about fatherhood. I fled that house just after my seventeenth birthday, and I have not been back in many years. I will not return to a place where I was so hated.

I suppose given those roots it was to be expected that I would grow to become a crooked sort of weed, and so it happened. I married young, and had two children while still a young man trying to find a place in the world. My first wife and I divorced, and I wept the many tears of a divorced man knowing that I could not provide for my children in the way I had hoped to. But I fought to do better than my father did. I saw the kids. I provided for them. When my son came to live with me I felt grace for the first time since I had held him in my arms shortly after his birth, feelings pouring from me that I did not know I had. My daughter and I struggled to remain close, but I now hear affection in her voice when we talk. She, too, is grace. I believe in miracles, even though I say I do not.

I have a stepson now, too. He taught me much. The biggest gift was never to be cruel, and never to make him a stranger in his own home: I did not want him offering furtive prayers for my demise. His mother and I have been together now for almost 15 years. I raised him and refer to him as my own son. My love for each of these three children flows now from the same place, and laps against the same shores. I am rich in love; richer than I deserve.

But come Father's Day I am all sorrow and fear. I wanted so badly for my children, all three of them, never to know the fears and terrors I knew as a child. But I see now that my conduct and the choices I made created fears and terrors they must now struggle with in their own silent and creative ways. When these children come to me with open arms I worry that I cannot fill those arms with all they need. I worry that I never have, and that I am incapable of doing so.

In this, I suppose I am no different than any other father. We summon children like gods from nothing, and they tumble fully formed yet formless from the wombs of our passion. Parenthood is the hardest role of any, and none of us are really prepared for it. But I do not want to forgive my particular failings with generalized truths. When I recall the times I was not there for my children, or the things I could have done better, a part of me weeps. Nothing more.

My wife is a wise woman. She reminds me in moments of despair that our children need me still. This challenges me as I broke free of the obvious parental yokes while still a child. But I see that she is right; I still need what I will now never receive. Last night, our youngest came home from medical school with his girl friend. We took them to dinner. I was terrified that she would see my shortcomings. But all I saw in my son's eyes was love for me, his mother and this new young blossom sitting beside him.

So this Father's Day I will try not to outrun my sorrow. I will try to be present and still. I will try simply to say "I love you" to the three adults who still look to me for things I've never known how to give. Growing old is good that way. You learn, along the years, that you can't escape the past. At best you can learn to dwell in the shadow of ancient things, and hope to provide modest shelter for those passing along the same road you have traveled.