Mass Incarceration, Legitimacy and the DMV

Did you know that the state of California imprisons more people than do the nations of France, Great Britain, Germany, Japan, Singapore and the Netherlands combined? We have 2.3 million people behind bars in this country. That is 25 percent of the total number of persons imprisoned worldwide. By contrast, the population of the United States constitutes five percent of the world's population.

There is something seriously wrong with these numbers. We call our selves the land of the free, and then we imprison more people per capita than any other nation. Nowhere does the rhetoric and reality of American life collide quite so violently as it does in the criminal justice system.

I was thinking about that this week as I stood on line at the Department of Motor Vehicle to renew my expired car registration. Three white, middle-aged and prosperous looking folks were standing within ear shot. The woman had just purchased a used Mercedes Benz convertible. It was a dream to drive and ride in, she told the admiring listeners.

Talk then turned to how much she paid for it. It was a bargain, she reported: She paid $10,000. She wondered how much she would have to pay in taxes on the car as she thought the car was more likely worth close to $20,000.

"For cars of that age, the DMV simply accepts your estimate of value," one man said. "You don't need to report the actual amount you paid and pay all that tax on the sale."

This struck the woman as a revelation. Her reaction surprised me. Here were three apparently prosperous Americans openly discussing tax fraud in a public place, conceivably within earshot of regulatory personnel manning the counters of the DMV. They assumed that cheating on taxes was all right, so long as you don't get caught, of course. In other words, there is nothing intrinsically wrong with tax fraud, so long as you can avoid the consequences: the found it morally acceptable to cheat but pragmatically undesirable to get caught cheating.

A sense of legitimacy is the glue that holds a civil society together.  Without legitimacy, a sense of fairness among free and equal people, there is really no meaningful social cooperation. Does the high incarceration rate in the United States reflect a legitimation crisis?

I think it may well. There are simply too many criminal laws. No one knows just how many criminal laws circumscribe the conduct of any of us at the state and federal levels. Prosecutors have broad discretion to charge or not on a bewildering range of offenses: I read recently that two lobstermen are now serving lengthy federal sentences for importing shell fish in Central America in plastic bags rather than boxes. We put people in prison for that?

Our penal code fails miserable when it comes to race, drugs and sex offenses. A young black man in the United States has a one in three chance of imprisonment during the course of his lifetime, as opposed to a six percent chance for a white male. We incarcerate folks sometimes for life for selling narcotics, but permit alcohol and nicotine to be pedaled without consequence. We make it a crime for young people to fall in love. For far too many Americans the criminal law is a foreign curse, a plague that falls upon them much like cancer and must be endured as a state-sanctioned illness. Over criminalization breeds a crisis in legitimacy.

What is amazing is that we are doing this to ourselves. Rather than fighting back and asking questions, jurors far too often make decisions about people without demanding answers about what the consequences of their verdicts will be. We've gone mad, really. We incarcerate more and more Americans for more and more prohibited acts, and we don't even ask why. Perhaps that's why folks chat freely about cheating on their taxes in public places. If government is simply a curse, a necessary illness much like a fall cold, then doesn't it make sense to swap remedies whenever possible with fellow sufferers?

Time, Forever Short, Seems To Fly Amid The Play

The dogs know something up. I swear it. I am sitting with a cup of coffee planning the day. Odysseus saunters up tossing a sock into the air. I take the sock, reminding him that they are not toys. He sits looking at me; his sister Penny hustles over, she sits too. They are extra obedient this morning. We frequently call Penny ostentatiously good. Today they are as close to perfect as border collies can be.

Do they really know that I return to work after a month off next week?

To say that I have enjoyed my time with my wife and dogs is an understatement. We've lived at a slower pace, one in which there is more time to respond to the dogs' longing for work. I swear that Odysseus has become a different dog. He's calmer. The other day, he simply sat on a couch absorbing all the love I showered on him. This is not unusual behavior for Penny. But not Ody is in on the act. To live is to be adored, he seems to whisper.

There's little doubt that dogs perceive the energy a person gives off. I suspect that our dogs can sense my ambivalence about vacation's end. I've had to spend a lot of time this month on the phone and attending meetings involving the pending federal indictment of a client. But most of this work was done at home. The dogs seems to like that. They can watch me talk.

But I have a full week in the courts next week: sentencing in one criminal case, an arraignment in a new federal case, a suppression hearing in a third case, a motion to withdraw in another case. And then comes Wednesday. The week looks to be a blur, and some part of me is already preoccupied with preparation. The life of a litigator is one of constant planning and contemplation.

So this morning, Odysseus is my guide. Once my feet hit the floor, he came rushing to my side. As I brushed my teeth, he sat beside me, calmly awaiting instruction. I walked down the stairs just behind him; he kept looking back over his shoulder to check on me. I sat for awhile with a coffee. Both he and Penny remained close. Indeed, even know Penny sits at my feet, just out of arm's length, looking pensive. She knows I am a handful, and she is resting, awaiting her next assignment. Ody sits just around the corner, outside, surveying a flower garden lest a chipmunk or squirrel saunter too close.

Today will be a day of domestic chores. The garden, which explodes with produce just now, needs weeding. I need to finish cleaning a chicken coop. I also want to clear a little more unwanted growth from our emu's pen. It's been hot and humid this past month; progress on my outdoor tasks has been slow.

The dogs will watch me perform each chore, and will offer me one tennis ball after another throughout the day. Their work is fetching what I toss. They look forward to my praise.

This morning I swear they know that my mind is elsewhere. A new client is coming to see me Sunday morning. I have pleadings to review. Phone calls to return. Soon the lawyer's wheel will whirl again and I will do my best to tap dance atop it, hoping not to fall too often.

"Stay home with us," Ody says. "I agree," chirps Penny. I need to remind them of why we named them as we did. Penelope was ever faithful awaiting the return of her man. And Odysseus, ever wily Odysseus, struggled through his wandering to find a way home, a task in which he succeeded against all odds. These dogs represent home to me. They yield a sort of faithful courage and serve as an ever present reminder than amid a life of struggle there is peace and a sense of home within reach, I need only to open my heart to be there.

I hear what these dogs teach. They remain a gift I do not deserve. They are good, even best, friends. They know a lot today, and today I am lucky to have no task more important than learning what they have to teach.

The Futile Battle Against Illegal Immigration

        I am the son of an illegal immigrant. My father was born in Crete. He and his father snuck across the border from Canada to the United States in the 1930s. My father eventually forged papers to create a paper trail that permitted him to live in the United States for the vast majority of his 84 years. So successful was he as a forger that when he died, no one was really sure how old he was, even his wife.

         But for all that he was an American. He spoke flawless English. He sired a son and a daughter, although, truth be told, I’ve never met my sister; I take my father at his word on this. He lived for many years as an outlaw, robbing payroll trucks at gunpoint and living off the books on the proceeds. He shot a man once. And when he was about the age I am now, he settled down to a long and productive career helping troubled teens find their way in the world.

         And somehow through all the chapters and heartache of his life the republic survived. Indeed, I argue it got stronger.

         I think of my father when I read about the debate on immigration reform, and when I watch the lingering conflict in Arizona about the state’s new immigration law. We kid ourselves if we think we can build a wall high enough to keep struggling people seeking minimum standards of living from entering this country.  We diminish the quality of life of all Americans by creating yet another set of laws and law enforcement officers empowered to snatch and grab folks who simply want to live as well as we do.

         My father told me he was born and spent his early years in Sfakia, a port city looking toward North Africa. He and his father fled to North America because of poverty. They settled on Detroit because it offered opportunities they did not have in Crete. My grandfather worked and sent money home to his wife and struggling family. My father broke free of Crete and turned his face to the new world.

         Neither of these men read civics books before they traveled here. Neither thought that government was of much use or relevance to their pragmatic concerns. Both viewed the world warily, as a place of opportunities and obstacles. For my father, the law was an obstacle to the opportunities he sensed. So he ignored the law.

         My hunch is that most of those crossing our border from the South are just like my father. They pledge allegiance to nothing more than survival. They come here any way they can without any sense of loyalty to the laws and institutions governing this country. For many, government and law lack legitimacy because the law seeks to drive a wedge between an immigrant and something like an inchoate sense of the right to a decent life. A sense of legitimacy is an acquired taste; loyalty is a luxury only those two steps removed from starvation can afford.

         My father died several years ago. I never told him I understood his struggle. I never told him I was proud of what he had overcome and become. When I look at the illegal immigrants swimming against the current of our laws now, I see my father’s face. I see his face and I know that no power alive can keep people from fighting to survive. We kid ourselves thinking we can close our borders. We never will.

        

 Reprinted courtesy of the Connecticut Law Tribune.        

Jessica Lunsford And Hypocrisy

The rape and murder of nine-year-old Jessisa Lunsford in 2005 was a terrible thing. The fact that her attacker was a violent sexual predator with a past reinforces our fear that the world is filled with dangerous sexual predators. But the fact remains that most people accused of sex offenses are harmless, and do not deserve to be treated like quarantined beasts. Jessica Lunsford's father knows this. He knows it because he might just be a sex offender himself; his son certainly is, at least by standards of current law.

Question? Why were lawmakers so quick to pass Jessica's law, demonizing people without distinction on the urging of a man who had deleted images of child pornography in his own computer the day his daughter went missing in Homasse, Florida in 2005? Why wasn't John Lunsford charged? Why wasn't his 18-year-old son required to register as a sex offender several years later when he pleaded guilty to sexual contact with a minor? Why, finally, the double standards?

Don't get me wrong: I don't think that possession of pornographic images on a computer makes a person a sex offender or a danger to society. If Mark Lunsford had such images in his possession the day his daughter was kidnapped, raped and murdered that should not make Lunsford a criminal.

But the prisons are filled with men who did no more than Jessica's father did. Why are those men in prison? Why are they required to register as sex offenders on release and to be forced into substandard housing, labelled a public health menace and then prosecuted for technical violations of the law?

One reason that sex offender laws have become undiscriminating and driven by hysteria is our tendency to make rock stars of rage out of the surviving members of the family of a violent crime. When Jessica became one of those rare children who are abducted by a stranger, all of our hearts went out to the family. But rather than sequester Mr. Lunsford away and offer him the counseling he needed to cope with shattering grief, we opened the airwaves and legislative chambers to him. We permitted him to make a poster child of Jessica, and politicians piled on to ramp up laws that are already far too draconian.

Why aren't lawmakers extending similar attention to other men who had child pornography in their computers? They are victimized too?

 I blame Oprah, frankly. Panic and sympathy sell. We gave Mr. Lunsford a pass because of what he has lost. It is no wonder that victims of the current sex offender hysteria are outraged at the hypocrisy. Mark Lunsford is permitted to stir the demons lurking in other people's homes without being held accountable for the demons in his own computer. See: child porn on the computer the day she went missing?

It gets worse, of course. Joshua Lunsford, Mark's son and Jessica's brother, was eighteen when he was charged with felony sex assault of a minor. He was permitted to plea to a misdemeanor. He spent 10 days in jail and was not required to register as a sex offender. Our prisons are filled with men serving prison sentences measured in far longer terms for the same offense. Why did Joshua catch a pass?

Once again, don't mistake me. I don't think Joshua should have gone to jail at all or been required to register as a sex offender. My understanding his contact with a 14 year old was consensual. For many years in the United States the ages of consent for sexual contact was far lower than fourteen. Romeo wasn't a felon when he wooed Juliet.

But the Lunsford's ought not to be given a libidinal past because of Jessica's murder. When Joshua turned up at his own sentencing wearing a T-shirt with Jessica's picture on it, where was his father to insist that son not engage in such tasteless theatrics? And why did Clark County Ohio Judge Tomas Trempe give this boy a slap on the wrist while presumably hammering others?

Jessica Lunsford has been used by politicians pandering to frightened voters to increase monitoring of those on sex offender lists and to increase mandatory minimum sentences. But it turns out that Jessica's family knows more truths than one. Losing a child to a stranger is horrible, but not every person possessing child pornography, and not every Romeo in pursuit of a Juliet, are sex offenders. If the Lunsford's believed that, father and son would be registered now, and their neighbors warned that predators are in their midst.

Why Fox News called upon Mr. Lunsford to serve as a spokesman for ramped up sex offender news suggests that the network is using Jessica too. To what end?, I ask. Perhaps it's high time to stop sanctifying the rage of crime victims. We say that no one can be a judge in their own case. But let a child get murdered, and grieved parents get a free pass: they get to sublimate their rage into national fame. Just ask John Walsh, who, decades after his son went missing, still hosts a national television show.

There is something sick about a society that tolerates such rank hypocrisy and hysteria. The illness isn't caused by so-called sex offenders.

Who Killed Jessica Lunsford?

I ought to be grateful that Fox News even hosted a debate. Normally, the mere mention of the topic has folks running for the doors. Acknowledging that the issues are complex is progress. When it comes to reform of sex offender legislation, there is too often too little time given to debate. So thank you to Fox News for the four minutes devoted to the topic on Monday's "Fox and Friends." It was a good first step.

The discussion pitted the father of a child abducted and killed by a sex offender against a man convicted of the possession of child pornography. On the one side, the inconsolable rage of a victim's family; on the other, a demon man who had never hurt anyone so much as himself. It was a debate pitting two forms of pain against one another. But tell me, Fox? Did you really expect meaningful public policy debate by offering a seat on the forum to a man undone by his tragic sorrow?

Mark Lunsford, Jessica's father, plead from his heart. He told viewers that no one in the history of the mankind had ever been reformed by sex offender treatment. This is, of course, categorical nonsense. Liberally translated his statement comes down to this: Nothing we do will ever bring his daughter Jessica back to us. His is the infinite sorrow of a man whose loss can never be made good. Jessica was murdered in 2005 at the age of nine by a violent sexual predator.

Of course, Mr. Lunsford was unaware of the numerous studies, including one by Human Rights Watch, that find America's amalgam of sex offender laws to be little more than an obscene mockery of justice. We've created a body of law devoted to combating stranger danger. Never again, we hope, will a stranger abduct and kill a child, we utter. But the sad fact remains that we know there will be other abductions. The human psyche is perverse, and we cannot police desire at the very same time we appeal to sex to sell everything from toothpaste to cars. The laws passed in the wake of Jessica's murder requiring ramped up sex offender registration and harsher treatment of a sex offenders of all types satisfy the need to act, but do so at the cost of social justice.

Debating against Mr. Lunsford was Kelly Pierce of Georgians for Sex Reform, an affiliate of the National Reform Sex Offenders Laws. Mr. Pierce was convicted of looking at child pornography. He is therefore a sex offender. But he is not a violent sexual predator. When Mr. Pierce referred to such things as the low recidivism rate among non-violent offenders, Mr. Lunsford looked surprised. Rarely do advocates for tougher sex offender laws let facts get in the way of their demand for more draconian laws.

Georgia has been a hotbed of reform energy, with recent successes in chipping at away at the perimeter of over-inclusive registration requirements. Central to the arguments for reform in Georgia has been the argument that too broad and aggressive a set of sex offender laws actually harms children. It does so first simply by failing to draw meaningful distinctions between violent and non-violent offenders. It simply makes no sense to require everyone who has colored outside the proscribed libidinal lines in any way whatsoever to register as an offender: this overtaxes law enforcement, which then loses track of the truly violent. Similarly, draconian residency restrictions force offenders of all sorts into tiny ghettos where the lack of meaningful residential and employment opportunities yields the very stressors than undermine efforts at rehabilitation.

Mr. Lunsford was not deaf to these arguments, but he urged litigation to correct these problems. The courts are a hollow hope when it comes to reform of sex offender legislation. Judges run scared far too often of the rage of lawmakers. Effective reform must begin in legislative assemblies. Those affected by sex offender laws need to appear before lawmakers to tell their stories. I know this is difficult and there deal of fear among those who have been victimized by these laws. But lawmakers need to see the faces of those they are stigmatizing with insufficient reason.

So a word of thanks to Kelly Pierce for a heroic performance on Fox News. As everyone with any sense, Mr. Pierce did not kill Jessica Lunsford. A criminal justice system that chooses willful blindness to this is hardly worthy of support. We need more and better debates in the national news media about the harm our sex offender laws is doing to too many Americans, Americans like Kelly Pierce.

Letting The Sheep Go Their Merry Way

One thing that dogs teach is patience. Odysseus has taught me plenty. When it comes to sheep, he is a monster. I can train him only at the cost of hurting him. That's a step I am unwilling to take.

Ody is a border collie, a member of a breed cultivated for its instinct in herding sheep. But in the battle of nature versus nurture it is sometimes the case that nature trumps. When that happens, it is time to back off.

When my wife and I decided to make a venture into the world of dogs six years ago, we researched breeds. We were raising poultry at the time. We wanted dogs smart enough to stay away from the birds, which free range and come and go as they please. My initial fancy turned to golden retrievers: they are loyal and affectionate. What more could a guy want? My wife, the intellect of the family, wanted smart. She wanted dogs we could train to stay away from the chickens and guinea fowl. So she settled upon border collies. We acquired two,  without realizing just what a ride we were about to take.

At the time this choice was made, I had no interest in sheep. I did spend a summer on a sheep farm in Michigan many years ago, fencing in some 40 acres for a black sheep farm. But that farm worked without dogs. The animals were raised primarily for their wool. I didn't know about border collies then.

We took Ody and his sister Penelope to Glen Highland Farm in the summer of 2006. Warren Mick, a champion shepherd, was there with a small flock of sheep. My dogs, who had shown little or no herding instinct with respect to fowl, were transformed into near homicidal maniacs once they saw the sheep.  A deep trigger was switched.  

"Where'd you get these dogs?," Warren asked. We mentioned the breeder's name.

"Oh, I know their father. He was also too keen for sheep." It turns out that the world of border collies is a small one. Ody and Penny came from a line that may well have been overbred for herding.

The concept made no sense to me at first. I imagined that dogs were more or less a tabula rasa at birth; given the right instincts, a dog could be trained. But suppose that the instinct were too keen? Could a dog be broken of what amounts to something like a compulsion?

I tried with Ody. We worked another summer with Warren. We worked with a shepherdess in Northeastern Connecticut. We traveled to the Delaware Water Gap to spend a week with another trainer. We made some progress, but in the end, I sensed something wild and unreachable in Odysseus. (Penny, you might wonder, is a different story: She could be a very successful sheep dog with sufficient time. But I am unwilling to work one dog at something the other cannot do.)

Over a couple of years time, I fell in love with the romance of sheep herding. I read books on sheep and shepherds. I read about trials and competitions. I watched videos. But Odysseus seemed to be wired in a way that I could not unravel. I spoke to one trainer who told me we could get Ody in line, but we would have to cause him physical pain to break him. I was, and am, unwilling to do that to a dog I love. It is not in me to return his loyalty with injury.

I spoke to the breeder who sold us Ody and Penny  a year or so ago about Ody. "If I had known you wanted a sheep dog I would never have sold him to you," she said. Of course, I did not want a sheep dog when the deal was struck. I wanted a loyal and smart companion, which is exactly what I got. That brief conversation opened my eyes. I was frustrated because he would not do something I wanted him to do, something his sister does well.

This past summer, I kept Ody off sheep and away from the sheep. Instead, we worked with agility and play endless games of frisbee toss.  Ody is still transfixed by sheep, of course. One day, we were working on a jump sequence when he turned away. He began to trot toward a meadow where several sheep grazed. "Ody," I called. "Come here."  He paused for a moment, considering obedience to me. But then some ancient gear was turned and he was off in a sprint, heading for the gate to the sheep meadow. All I could do was smile and walk over to console him.  He misses the sheep.

And Penny? She doesn't seem to miss the sheep at all. She's simply happy to play at whatever it is we do. I am happier, too, without the battle of Ody versus the sheep. A relaxed dog makes for a relaxed man.

A Few Questions For Gerry Spence

I have a question or two remaining for Gerry Spence. Since he no longer publishes my comments on his blog, I will post them here. (He recently returned to blogging after a hiatus of several months. I shot a note to welcome him back, but the note sits, "awaiting moderation," in Internet oblivion while scores of others have been posted.) Several of his readers will no doubt find this piece and send it along. I am something of a bete noire for messing with the master in the minds of those with a greater need to believe than I possess.


Question Number One: How many criminal cases have you tried to a verdict as defense counsel?


I ask this question because, frankly, I am struck with shame-faced awe over your claim never to have lost a criminal case. I have lost many. Each loss sears me. I cannot accept the sort of glib mentality that asserts that loss is part of what criminal defense lawyers do, so get over it and move on. That is callow chatter.


Mark Bennett's recent piece on picking winners inspires this question. Implicit in Bennett's piece is the suggestion that Spence is a masterful marketer. I concede that you can only market what you have to sell. Lawyers are free to represent a person coming to them for any of a number of reasons, including how well the client's needs fit within a lawyer's "business plan." But still, if you are going to announce that you have never lost a criminal case, it seems fair to respond to a follow up question: How many criminal cases have you tried to a verdict as defense counsel?


It won't do to say you cannot recall, although, frankly, I understand that answer. I can no longer recall how many cases I have tried. Over the years, they all tend to run together into one long Kafkaesque montage. So in fairness, Gerry, is it more than 10? Fewer than 25? A good faith estimate will do.


Do I expect an answer? Yes. Spence sends private notes from time to time, so I know my words find their way to him. I don't necessarily expect him to answer here, however. The mountain must go to Mohammed in his universe. He neither comments on the blogs of others or acknowledges publicly what others have written. To do so would be a form of power-sharing, one of the deadly sins in his universe. So answer anyway you can, Gerry. It is a fair question.


Question Number Two: Since you have never lost a criminal trial as defense counsel does it follow that you can win any case?


Again, Bennett's essay crystallized things for me. Telling the world you cannot lose is perhaps the world's best marketing device. The world will beat a path to the door of the lawyer who cannot lose a case. What price freedom?


I understand the view of those who say we are expected to lose. But, frankly, I never really expect to lose once trial begins. A guilty verdict always surprises me, deflating my ego and undermining my confidence. If you cannot, Gerry, win any case that comes your way, then how do you pick and choose the cases you will take? 


Spence was a good and faithful mentor to me years ago, and he deserves better than the treatment I have given him in public comments. But as his Sun prepares to set, I, too, must reckon with the role I permitted him to play in my life. I went to Wyoming years ago to learn from him, and I learned plenty. But what I learned tasted a little sour when I saw the boast on his web page that he is "America's Finest Trial Lawyer." Modesty must count for something, even among warriors. But suppose he has no reason for modesty? If he's tried scores of cases and never lost, I must respect that. If he can win any case at all, I must concede his skill.


I still don't have answers to these questions. I am hoping he will provide them. 

Must Listening: Daniel Schorr and Frank Zappa

Yeah, Schorr couldn't sing, but he did anyhow. And with Frank Zappa. Somehow, this strikes me as almost sublime in a homely sort of way. Listen here.

Is The Law Social Oncology?

A former law partner used to say that the practice of law is really social oncology: Criminal defense and civil rights lawyers spend their time dealing with things that just don't fit within a well-functioning social organism. A man accused of murder represents an aggressive malignancy; a person complaining of discrimination presents a challenge to a settled practice in a given location. But using illness as a metaphor is perilous, as Susan Sontag noticed long ago. Using illness as a metaphor to metaphorically describe something else altogether is perhaps impossible.

I am sometimes stunned into silence at the sheer waste of it all: The law is messy, untidy, and raw. It is rarely the case that a legal conflict does anyone real good. Trial, for example, is a zero-sum game: Two parties collide: one wins and the other loses. I suppose that trial represents the surgeon's approach to illness. Cut, cut, cut and discard the leavings. That may work in medicine, but what about the law? In our work, the leavings are people and their families.

Consider the carnage done in the name of justice in our criminal courts. This week's Economist reports the by now familiar statistics about mass incarceration in the United States. We have 2.3 million people in prison. That exceeds the population of 15 states. Our incarceration rate exceeds that of any other wealthy nation. And this ignores the effect of incarceration on families: Imprison a father, and leave a child home without guidance. We imprison too many, for too long and for inadequate reasons. How is it that in the land of the free we so freely treat so many people as though they were little more than social tumors?

I am not claiming that a man or woman prone to violence should be set free to terrorize others. There are people who should be removed from society. But treating each breach of the law as a crime worthy of incarceration is like treating the common cold by surgically removing noses: the results are unnecessary and leave disfiguring scars.

A model other than the surgeon's scalpel needs to be brought to the criminal law. Perhaps we can learn from alternative medicine. Is the person who committed a minor crime in need of something other than surgery? Treating a social irritant in his or her environment makes more sense: Criminal law as homeopathy?

The oncology model is more troubling on the civil side. In these cases, the irritant might well be a settled social practice in need of change, e.g., housing discrimination. But it might also be a person with expectations that are wholly rational, yet entirely unreasonable. Representing a person wholly capable of rationalizing his or her desires yet deaf to what society is prepared to offer is one of the law's most difficult challenges. Where the oncology there? Is the client the tumor? Or is the society a form of blood cancer, circulating toxic fluids?

The real danger in the social oncology model is that it creates the illusion among lawyers that they are immune to the very illnesses they treat. Others suffer indictments, or mistreatment at the hands of others: We lawyers diagnose and treat. Except we are not immune. Some of the most difficult and disconcerting things I have seen are lawyers themselves facing criminal charges. I've seen confidence men reduced suddenly to childlike terror. The line separating lawyer and client is entirely arbitrary.

I am not prepared to discard the social oncology model, but I am suspicious of it. In a better world, a utopia, lawyers would not be necessary. The rule of reason would govern and like minds would concur about the right solution in any conflict. But this world is far from perfect. Things go bump in the night. Passion, not reason, rules, and we are all members of herds in conflict with other herds. The law might better be conceived as a skilled animal trainer, shaping behaviors around common norms. We work by increments shaping expectations in an environment filled with people who are not so much different in degree, but in kind. I sometimes feel that we are many different species united in appearance only.

The law may not be social oncology. We are too quick to remove those from our midst who transgress norms that may make little sense. Ignorance of the law should be an excuse when the law becomes so complex that even lawyers aren't sure what is and is not prohibited. But people and processes aren't tumors. The oncological metaphor is too violent. Treating people as though they are cancer is wrong. I wonder what metaphor better captures the emotional and social violence of the law?

Anger: I Haven't Missed It At All

My wife and I have taken the better part of July off this year. The plan was to take the entire month, but the feds got interested in a client of mine. I interrupted the vacation for several days to try to talk them out of an indictment. I still don't know whether I succeeded, but I suspect not. So as I write this, I expect to have one more week off, unless I need to spend another day or so locked up with federal agents and prosecutors. Then it is back to the law.

Today I found myself thinking that I do not want to go back. There is too much anger in it to suit me. I've not missed the fear, the rage, the anger of people undone by their situation in the world. For the past three weeks, I've simply let go of anger. It feels good. I am cleansed, refreshed, and lighter on my feet. Or so it seems.

Aristotle wrote of anger that it is difficult to be angry in the right way, to the right degree, at the right things and in the right manner. I wonder whether his concept of moderation sheds light on what Christians mean by sin. Surely, the love of the wrong thing, in this case anger, can warp a soul. How many are the lawyers I've seen sigh, some nearly on the verge of tears, when discussing their clients' rage?

My temper has certainly cost me much. Too often, I've perceived a slight where none was intended and then reacted in anger. I am quick to judge, and quicker still to attack, even if the attack is not justified. Some defect in my character or upbringing made anger a convenient weapon for me. I use it to defend, even when the only thing I need to defend against are the shadows I cast.

The law suits an angry man or woman. One can check concerns about the nature of truth or goodness at the courthouse door and navigate guided solely by a client's conception of his or her interest. The hard work of sitting cheek by jowl with a client and asking whether their desire is reasonable is also optional. Many are the lawyers who simply fight for what their clients want, regardless of whether the client's desires are wise.

I came to the law from other pursuits. I despaired of an academic career in large part due to a failure of nerve. I did not believe there were larger truths worth conveying in the form of teaching. Yet I realized that this realization was itself a larger truth of the very sort I thought impossible. Rather than work my way through this deeper contradiction and commit to principles I found acceptable, I succumbed to something like nihilism. I found the law liberating for the very reason that it did not require me to make epistemological commitments broader than the narrowly conceived interests of my client. The law had mere instrumental value.

That view no longer sustains, and I am once again forced to examine commitments and attitudes that make me uncomfortable. It is no longer enough to fight for the sake of fighting. I want to fight for something worth believing in. But cynicism and scoffing are old friends. Leaving them behind requires courage; it also requires turning aside from a form of anger that was cheap substitute for something more destructive. Anger, I conclude, is less damaging a sin than despair.

Every summer I vow to return to the law a better man. Late each summer I return only marginally chastened by the failings I have observed in myself. This year has been a long meditation on hope and love, lessons, paradoxically, I examine again and again through my dealings with our dogs. Come August 2, when I return to work, I will be challenged to find the same sort of warmth in the people around me that I find in my dogs. Of course, I know that a good deal of what I find in the dogs is what I give to them. Can I make the leap and give the same love and care to clients?

I genuinely do not know. I found myself thinking today that I have had enough of the law. There are so many young and talented lawyers out there, a small voice says step aside and let them bear the rage of strangers. But that seems somehow like a cop out, like letting sin win. I am not ready for that either.

So return I shall, chastened as always by a growing awareness of the presence of sin in the world, and struggling toward the grace necessary to survive a profession in which the worst we can to one another and to ourselves is our daily bread.

Gates v. Crowley: Ogletree Tells Half The Story

I was reluctant to read Charles Ogletree's book on the by now much overblown confrontation between Henry Louis Gates Jr. and James Crowley. This was a garden variety event mismanaged by both the arresting officer and the arrestee. But for the fact that Gates is well connected and famous the case would not be remarkable.

But Gates teaches at Harvard about race and racism. So when he was arrested after a ruckus at his own home in Cambridge, Massachusetts, the fur was sure to fly. President Obama referred to the police behavior as stupid, thus polarizing left and right. Things were calmed only when the president agreed to have beer with Gates and the arresting officer. This was a case in which class determined the outcome.

When my clients get arrested for contempt of cop and charged with some minor offense such as interfering with an officer, or, if a member of the general public was within earshot, breach of the peace, no one outside the courtroom cares. These cases are typically resolved quickly and quietly.

But I picked up Ogletree's book, The Presumption of Guilt: The Arrest of Henry Louis Gates Jr. and Race, Class, and Crime in America, out of a sense of professional responsibility. I wanted to see what Ogletree could add to my understanding of the conflict between ordinary citizens and police officers. Ogletree taught me much, but not about the law.

The case is now familiar: Gates returned to his rented home in Cambridge with another black male after a trip to China. Exhausted upon arrival at his front door, the lock jammed. One of the men forced entry with a shoulder, a move that looked suspicious in the broad light of day to those in the neighborhood.

A police officer was dispatched. Officer Crowley arrived. He asked Gates for identification while in the home. Gates complied. Rather than leaving when shown an identification card making it clear that Gates belonged in the home, Crowley asked Gates to step outside. Gates was outraged and protested. There was a standoff that attracted the attention of passersby. Once Gates left the house, he was cuffed and arrested. Prosecutors declined to press charges and the case was dropped.

It is black letter law in every jurisdiction that a person detained by the police, even wrongfully detained, must comply with the officer's commands. Stepping outside to discuss the matter was not the constitutional outrage Gates thought it to be. The Fourth Amendment is not an instrument of protest in a police seizure. Gates was a fool to escalate the confrontation, even if he was the sort of fool I would root for each and every time.

Crowley, of course, was a bigger fool. He was dissed in public, and by a black man, no less. An arrest was inevitable, even if unwise. As Ogletree points out, in this confrontation, at least at the outset, Gates' race trumped his class. He was arrested for being black and proud in his own home. There is something deeply offensive and wrong about this.

So far, so good, and so obvious. But Ogletree fails really to grasp the significance of this confrontation. He claims to represent Gates. It is unclear whether that representation is in any civil capacity. For Gates' sake, I hope Ogletree does not advise him civilly. Not once in this book does Ogletree mention the havoc the doctrine of qualified immunity has wrought on claims of false arrest or illegal seizure arising under Fourth Amendment and brought under cloak of 42 U.S.C. Section 1983. This pernicious doctrine gives the benefit of the doubt to police officers in a close case. Gates' case is such a case; it has summary judgment written all over it.

The real story in this case is not that Gates was arrested. These sorts of arrests take place daily in the United States and are perfected against people of all races. The real story is the use to which this arrest would have been put if Gates were not a good citizen, buddy of the president's and a Harvard professor. Had Gates been a young black man on probation, the arrest might well have signaled a violation of probation proceeding, without benefit of a jury trial or even a suppression hearing. A person without means and influence would have been asked to stipulate to probable cause or pay a small fine to make sure the police were covered in the event of a civil suit. Gates got the Donald Trump treatment. Class mattered in this case, and was dispositive.

I fault Ogletree for writing half a book, but I still recommend the volume. The epilogue is a lengthy set of reports from black men about their experiences with racial profiling, harassment and misperception. Reading these reports was deeply moving and a present and necessary reminder that the color line still separates and divides in ways that are intolerable. It is perceived to be a crime in many parts of the United States to drive while black; skin color matters to investigating officers.

Ogletree is right to shine a light on race and racism in the criminal justice system. But the light he shines has been dulled by too many years behind a lectern preaching to the choir. He needs to spend more time in a courtroom getting his ass kicked from one end of the room to another to speak with the sort of raw energy necessary to inspire battle. I am not inspired to man the barricades for the leisure class just yet.

At one point in the book, Ogletree suggests eliminating peremptory challenges might help eliminate racism during jury selection. Perhaps. But it is so hard to get a case to a jury that I would still rather have challenges as a tool when selecting a jury. I would be willing to make a deal with the Devil if he were so inclined -- I'll give up peremptory challenges if we can also eliminate qualified immunity. Let's let the people decide constitutional cases and tell us what they think of the law. I trust them more than I do judges and the academy.

I've never met Charles Ogletree and odds are I never will.  My heart aches at hearing about the role of race in the many miscarriages of justice that take place daily in this country. My heartache is compounded by the sight of a court system that has created legal doctrines to excuse all but the most blatant and obvious forms of misconduct. That Charles Ogletree, a Harvard professor, could write an entire book on a garden variety arrest and miss the legal significance of what went down makes my heart ache even more.

God Spelled Backward

The best part of my summer is the time I spend at Glen Highland Farm in New York. We've just returned from a couple of stints there, about nine days with our border collies, Penelope and Odysseus. These dogs have trained my wife and me to be better listeners, and, perhaps, better human beings.

Those of you who are not dog people won't get the balance of this piece, so move on and read something elsewhere. Or read on if you like. What you will learn here is how a man can be grateful to two animals for their love and devotion. Although I am a man of many and often contradictory words, Penny and Ody have taught me simply to give thanks. That took a lot of work on their part.

But first a word about Glen Highland Farm. It is a border collie rescue facility founded ten years ago and operated as a 501(c)(3) by two refugees from the hard-charging world of accomplishment. Each summer, it runs a brief summer camp for adults. A few dozen dog owners camp out on the 175 acres and spend their days with their dogs at sheep herding, agility, tracking and other activities. Speakers come to talk about dogs and their world. After the adults clear out, Glen Highland runs several sessions for inner city kids who are taught the magic of the unconditional love of exceptional dogs.

We've gone to the camp for five years, and I am just now beginning to see how deeply a dog can challenge and even change a human being. Frankly, I am a typical camper: I cry when I leave. There is something comforting about being part of a pack bounded solely by the rhythm of our dogs.

Penny and Ody are intense animals. If you know border collies, you begin to understand what I mean. Our dogs are focused members of this breed. They are demanding, loving, loyal and energetic. They come from the same litter and have for almost six years now been a daily presence in our lives. This summer I have begun to understand that they are more than a presence, they are a gift, one of the greatest gifts I have ever received.

They are different. Ody is almost mirthful, in a vigilant sort of way. We call him the policeman. He seems to delight in running our land and running with us where ever we go, ever vigilant lest one of us get lost. He keeps a firm eye on Penny, his sister, always putting himself between her and any other animal that approaches. When we are not on our land, he even goes so far as to cover any waste she may leave with his own scent. lest anything come to think she is alone in the world. He herds his sister, reminding her always that he is present to protect her. I understand why people believe in guardian angels. Odysseus is an ever-present angel.

But Ody is not really the leader of our pack. Penny is the alpha. She herds my wife and me, watching us throughout the day at whatever we do. When I move, she is present and alert for a command. The moment I sit with hands free, she jumps up to sit next to me. She has learned now to fall asleep sitting on my lap with her head on my shoulder. She is fierce in her loyalty to me: we say she put the "grrr" in girl just as Ody out the joy in boy.

Border collies aren't for everyone, and Ody and Penny aren't for any border collie lover. These dogs have become more than shadows to my wife and to me. They are companions who communicate with facial gestures, body posture, and an occasional barks. Sometimes I think they have souls. Penny is an eternal mother ever present to remind me that whatever sorrow I behold she is there like a ewer, ready to pour infinite love and concern into the ravaged portions of me. This dog is magic, I swear she is. Some part of me responds to her love and is replenished. I say without shame that I grow richer each year she is in my life. Is it too profane to say she restores my soul?

Some folks believe dogs come into your life for a reason, to teach you something you need to learn. That is just beyond the limits of what I can comprehend with ease. My convictions run in the direction of chance, circumstance and chaos: that is the life I have lived from a boy onward. But I swear, sometimes and increasingly often, I sense a deeper pattern emerging: It is always Penny who leads me to follow, and Ody who stands at the perimeter to assure that all are safe.

Call me a fool, but I say you can learn great things from a dog if you learn to listen. Mine beckon me to trust and be freer with the love that is within in me. I can almost hear Penny tell me to let go and embrace the world around me, just as she does, completely and without reserve. I love that dog and always shall.

A lifetime of reading and arguing and thrusting into the night with such a frail light and I come finally to the realization that all I really need to know might be just what Ody and Penny offer. I wonder some days how it came to be that dog is God spelled backwards. I know it sounds silly to those without ears to hear. But I am hearing things I thought weren't possible: it is the sound of a dogs' love, and it is beautiful.

Here's more about Glen Highland, since I could not get the link to work: http://glenhighlandfarm.com/.

Hip Hop and Justice

            Books about race and criminal justice are typically depressing. In the war of the establishment versus angry black men, the establishment wins the power struggle, but is left defending a vulnerable castle. The moral high ground goes to the dispossessed. Because I am white by accident of birth, I am left banging a hollow drum.

         Paul Butler’s Let’s Get Free: A Hip-Hop Theory of Justice is a welcome change of pace. Sure, Butler is an angry black man. He has plenty to be angry about. The lottery of life handed him a ticket that makes it almost impossible to win big, or to hold such winnings as he may acquire.

         Butler was a federal prosecutor in Washington, D.C., in the public integrity division of the Justice Department. A graduate of Yale and the Harvard Law School, he was one day arrested and charged with simple assault. He went from the law’s pinnacle to the bargain basement in which we sell black lives at a discount.

         In truth, his experience as a criminal defendant was not all that jarring. But the experience radicalized him in a polite sort of way. He left government work, became, gasp!, a law professor.  His trajectory isn’t exactly that of a modern rider on some underground railroad. He retains the privileges conferred by attendance at a law school status factory.

         But, and this is the rave, his heart is in the right place.

         He believes in jury nullification and the role of jurors as a means of challenging the status quo. In a brief paragraph or two he asks what would happen in a world in which decisions about social justice were made by those least advantaged in our society, a move perfected and made philosophically robust by John Rawls in his Theory of Justice.

         What group stands at the fringes of our institutions and power structure, looking in with hungry and angry eyes? Black men. And Hip Hop is the beat of this tribe. Can there be a Hip Hop theory of justice?

         That’s a tall order, and Butler knows it. It is one thing to recite lyrics about the impact of mass incarceration of black men on those left behind, or about anger toward the police. These expressive moves reflect real tensions. Hip Hop hasn’t yet found its Immanuel Kant yet; and it may never.

         I missed Butler’s book when it was published in 2009. I recommend it enthusiastically to anyone practicing criminal law. The system, to put it mildly, sucks. It is a massive shell game in which judges refuse to accept responsibility for the sentences they impose, pointing to lawmakers who create mandatory minimums. But lawmakers are ignoramuses about what goes on in a courtroom: It’s easy to chest thump in a legislative chamber and to pretend that one size fits all.

         The criminal justice system lacks accountability, and we deprive the one body that could make a difference and speak truth to power of the information it needs to make reasoned judgments. I am referring, of course, to juries. Just how we have come to emasculate juries is a question Butler doesn’t answer. He merely reminds how wrong the practice is. Read Butler, and then lend a hand in the struggle to set juries free to make morally responsible judgments.

Reprinted courtesy of the Connecticut Law Tribune.

Arf, Arf, Arf

My few regular readers know that dogs are an important part of my life. My two border collies, Odysseus and Penelope, run our pack during vacation season. So we are heading out bright and early Saturday morning to an off-the-Internet location to spend six days playing with sheep, working on agility courses, and otherwise enjoying ourselves.

The last time I was away for a few days I got anxious inquiries. Let me head them off with this note this time. I may not post again for another week.

It's a dog's life, you see ...

Blagojevich Case Far From Over

I spoke to a reporter this morning who has attended each and every day of the Rod Blagojevich trial in Chicago. Based on what I heard, there's still time for the defense to pull the the former governor out of this mess. But it's a long shot. Things will have to break just right. Illinois jurors might surprise us all and send the feds limping back to Washington.

The former governor stands trial in a Chicago federal courtroom with his brother and several former aides. The Government claims he tried to turn to the governor's mansion into what I will call a political derivative. He wanted cash, security, in exchange for the influence he could wield in highway construction projects, state Medicaid reimbursement rates and even an appointment to the United States Senate. From afar and filtered through the measly column inches of newsprint devoted to the trial, the case looks and sounds damning: We bailout corrupt Wall Street goombahs but prosecute state politicians.

Blagojevich looks and sounds like a cherubic sociopath. We've learned that he spends more on his wardrobe than on his mortgage. He sports a vanity hairdo lacquered just so to cover any bald spot. His speech patterns make George Carlin look like a choirboy. And no one will accuse him of working too hard: testimony at trial revealed he spend two to eight hours a week in the office, sometimes hiding in the executive bathroom to avoid bearers of bad tidings.

Rod is, to put it bluntly, a clod. He might also be a criminal. He certainly sounds like one on the wiretaps thus far revealed at trial. He was so eager for cash that I marvel he did not hold an Ebay auction to select a successor to the Senate seat vacated by Barack Obama.

Just how can the defense win this case?

The trial can be won by making it into a morality play pitting good versus evil. At root, every trial is such a struggle. The winning side either persuades the jury that goodness resides on its side of the aisle, or, if there is no goodness, that evil resides on the other side of the aisle. Good versus evil is the theme of every trial; the facts of a particular case are mere set pieces.

Thus far, the defense has focused on the facts and seems to have neglected the deeper, thematic work of trial. Blagojevich is not a good man. Let's not fool ourselves. But wherein lies the greater evil: In the hands of the man we elected to govern, or in the hands of ambitious federal prosecutors taking direction from Washington's overlords?

The defense suggested in opening statements that Blagojevich was really the unwitting dupe of savvy aides. He is, after all, broke. If he were running the governor's office as a virtual ATM machine he wouldn't be cash strapped now, would he? Several of his former aides who testified against him at trial told the jury they are now making small fortunes manipulating the levers of power in Springfield. They are the crooks.

This will be a hard defense to pull off. First, Blagojevich is himself a lawyer. It's hard to blame your lawyer for bad advice when you yourself are similarly trained. Besides, the selected audiotapes played thus far suggest that Blagojevich was really captain of the ship. Let me repeat: The governor looks like a venal creep.

So how to win this one? Find a bigger creep, one with more power, more arrogance, less accountability to the men and women sitting in the jury box. These Illinois voters did not ask the United States Justice Department to waltz into Springfield and topple the man for whom they voted. The only way to walk Blagojevich is to put the government on trial and persuade the jury that they have more to fear from runaway feds than they do from a business-as-usual politicians in expensive suits and a bad hairdo.

You scoff? It worked for Geoffrey Feiger in Detroit. He was indicted for bundling campaign contributions. The indictment was solid. But the Government fell on its face at trial. Feiger's defense counsel, Gerry Spence, persuaded a jury that federal agents had betrayed the people's trust by bullying a people's champion. When the trial court ruled that the defense could not introduce as evidence facts to support this claim, Spence pressed on anyway, making jurors wonder just what the Government and the judge were trying to hide. Feiger is free today not because he was innocent of the crimes charged, but because the jury did not trust the Government and thought it had behaved unfairly.

Blagojevich's defense team has been handed a gift that will open this door to evidence of the Government's and the court's betrayal of the truth. This week, the trial judge ruled that a series of audiotapes made by the Government are inadmissible. The defense needs to wage a fight about these tapes in the presence of the jury. Let jurors wonder why the Government cherry picked from secret recordings it made to produce only those which hurt the defense. Why, if we are seeking the truth, can't all of the tapes be heard? What context is so dangerous that a juror cannot hear it?

One quirk in the law of evidence is that the Government can offer a recording of a defendant as evidence. The tape is not hearsay because it is the admission of a party opponent, an exception to the hearsay rule. But when a defendant seeks to offer a tape of himself made by the Government, the evidence admissible for the attack is suddenly unavailable to defend. The defense needs to press this theme and fight to get the tapes into evidence. If it fails, it can tell the jury that it tried to bring them the truth, the whole truth, and nothing but the truth, but the Government objected.

The defense has tried a polite, unexceptional case thus far. The result has been damaging evidence and perceptions of the Governor. There's time to turn this around. But to do so, the defense will have to turn up the heat. Let's see if they can do it. And, of course, let's see what happens when the former governor takes the witness stand.

This trial is far from over.

Two Women, One Justice, And Blind Luck

           Yesterday, my wife and I traveled to Boston to visit my mother-in-law, who lives in a residence for people with special needs. She is in a ward where the doors are kept locked. But she does not really see this as a prison. She suffers from dementia, you see; and in her late-eighties she seems somehow helpless now.

            I would never have imagined her as helpless before she began this slow slide into what I assume will be the oblivion that awaits us all. She was a tenured Harvard professor when she was my age. She wrote books, presented papers at conferences, shepherded graduate students through the tortured process of completing doctoral dissertations.

            But mostly, she kept track of the world, always alert, always keen, always informed about the day’s events. Even now, as she ambles along behind her walker, she keeps the day’s copy of The New York Times ready at hand.  When I think of her I summon an ethic of responsibility; hers was a serious generation, forever and always engaged with the world.

            Now the gears of engagement seem to slip. She can ask a perfectly sensible question, absorb the answer, and then, after a moment’s hesitation, ask the same question all over again. This is something more than forgetfulness and it unnerves me.

            But she is much loved and each question will be answered no matter how many times it is asked.

            She wanted to know why I was not happy with President Obama’s choices for the Supreme Court. I tried to explain to a Harvard Brahmin why a court composed of Brahmins made me uncomfortable. The law is not theory, I tell her. Experience in a courtroom matters.  The grandest issues of jurisprudence typically begin with a seemingly small conflict involving great principles.

            “But the court decides great principles, doesn’t it?,” she persists.

            Of course, she is right.

            I tell her that no one on the current court ever really worked in a courtroom representing ordinary people in disputes with the government, with corporations or with one another. There is a caste-like quality to those on the court now. They all have same pedigree, and similar career paths. I tread warily here. This is a Harvard professor I am lecturing about the perils of her perspective.

            We discuss this as my wife listens. She is anxious. Two headstrong bulls she loves are locked in a struggle about ideas. I watch my wife and my admiration grows even greater. She loves those in her life so completely that I see no moment is every really wasted for her so long as she can give. I silently count my blessings, a loving wife, a reasonably sound mind.

            “So what you are saying,” my mother in-law says after several passes over the issue, “ is that you want a justice with a bottom-up, rather than a top-down, perspective.”

            “Yes,” I tell her. “That is exactly right.”

            “That makes sense,” she tells me. “I actually agree with you.”

            I am relieved to have passed this test with so fearsome an interlocutor and inspiring an intellect. And I am at once humbled. She managed, even through the maze of dementia, to summarize my position so much better than I have done in all that I have written and said on the topic.

            The conversation turns elsewhere. I sit back and marvel as I watch mother and daughter navigate through a world of words and idea. I sit back and marvel over the good fortune to have the love of two exceptional women. Some luck is undeserved.

Reprinted courtesy of the Connecticut Law Tribune.

Romeo, Juliet and Jury Nullification

The most profound form of "stranger danger" apparent in the nation's criminal justice system arises not in the form of a sexual predator lurking in the shadows. No, the stranger who presents the gravest danger to our society is the lawmaker, judge or prosecutor who seeks to transform the criminal justice system into a blind assembly line. Only if we the people take back the power that is rightfully ours can justice be done.

Consider the so-called Romeo and Juliet laws criminalizing consensual sexual contact between young people when one of the participants is below the age of consent. 

Laws raising the age of consent to 16, 17 and 18 years of age were enacted throughout the United States in the late nineteenth century in response to rapid industrialization. There was a fear that young girls leaving their homes in rural communities would be subjected to danger in the cities where factory jobs were plentiful. Activists responded by insisting that the age of consent be raised from 10 and 11 years old. The law was passed not to prohibit acts of curiosity or even love between young people. It was to protect the young from stranger danger.

These laws are still on the books today, and many a young person is now in prison, a felon, a lifetime registrant as a sex offender or otherwise consigned to the indefinite purgatory known as sex offender treatment for the simple act of sexual curiosity. We put these young people on trial and never let the jury know what the consequences of a guilty verdict entail.

When these crimes are charged, a defendant is cast into the criminal justice system. And it is at this point that the newest form of stranger danger takes place. Jurors are often told only what must be proven by the state to find a defendant guilty. Jurors are given no, or, depending on the jurisdiction, little responsibility for punishment. We ask jurors to determine guilt in a vacuum, divorcing the crime from the consequences of being found guilty of it. This is moral cowardice.

The result is a system in which no one really accepts responsibility for what happens to a young person at trial. Lawmakers pass laws in their legislative sanctuary without any particular knowledge of the person on whose neck the law's yoke will fall. This one size fits all approach often works injustice.

Judges then turn their back on justice when a defendant appears before them. If lawmakers mandate a mandatory minimum sentence, then a judge imposes it. The judge disclaims responsibility taking the judicial version of the Nuremberg defense: he or she is, after all, just following orders.

Prosecutors, too, turn away from the consequences of their acts. Legislators create the crimes and penalties. Prosecutors just move the widgets down justice's conveyor belt.

In this way, government becomes unaccountable. When three branches of government -- the legislature, the courts and the executive in the form of the prosecution -- all turn their backs on one another, link arms, and dance a chaotic jig the result is hardly a thing of beauty.

So where do defendants turn for justice? It used to be a jury was told it was free to serve as judge not just of the facts, that is whether something occurred, but also of the law, to wit: whether the law was correctly applied. Almost every state now disapproves of jury nullification, as do the federal courts.

My sense is that we need to revisit jury nullification. Folks involved in combating the excesses of the nation's failed war on drugs have done good work in focusing attention on jury nullification. Those in the reform community on sex offender laws need to forge a link with with drug law reformers and spread the word that jury nullification, i.e., teaching juries about the consequences of what they do and of their right to refuse to be conscripted as assembly-line workers engaged in the detached work of finding so-called facts regardless of the consequences, is an important American tradition that must be revived.

Here is a link you can use to learn more about nullification. Is nullification unpatriotic? No. It's as American as apple pie. Don't forget for a moment that the greatest stranger danger lurking in the courts comes in the form of judges, lawmakers and prosecutors who don't want jurors to know the truth about what a jury is doing and why.  www.jurorsforjustice.com

A Word Of Encouragment

John Kindley's People v. State is one of my favorite blogs. He's a libertarian of sorts. His page is steeped in the history of anarchism. He is a young lawyer. This is a recipe for heart break, and this morning I read that he is, in fact, heart broken. You see, it is wearing on him to appear in one court after another and watch his client's rights be given a cold judicial shoulder.

I wanted to give him a call this morning and tell him to buck up, but I'll write instead. I took a couple days off of blogging last week when I was out of town, and I'm heading out next week, too. I had a handful of emails from folks yesterday inquiring whether all was well in my world. The fact is, things could not be better. Time away from the grind is good for the soul. But if its words you want, here they are.

Which brings me back to John Kindley. Here is the best I can offer him:

"Can you imagine how much worse it would be, John, if you were not there?'

I am still naive enough to believe that the Bill of Rights should matter. I take as bedrock principle such things as the right to remain silent when the Government inquires, and the presumption of innocence. But I also know that for most folks in the criminal justice system these principles aren't written in stone. In the real world of courts and lawyers, a seedy, or is it weedy?, pragmatism has taken root. The system is results oriented. A person accused is presumed to have done something wrong. Efficient disposition of a case is the norm in many courthouses. Lawyers who play along are rewarded. Lawyers who rock the boat are tossed overboard when the opportunity to do so arises.

I've worked with dozens of young lawyers over the years. I tell each the following when they begin to try cases.

"You have three goals at trial: First, to win an acquittal, if one can be won. I realize that folks prosecuted weren't selected at random; I don't have the luxury of cherry picking only those cases I think I win. Many cases are difficult, impossibly so. But a lawyer's job is to be the last, and perhaps only, friend of the accused. You fight for the dignity of the person beside you, even unto death.

"The second goal is to preserve error. This is, after all, an adversarial system. Don't ask for permission to put your case on, or to attack the case against you in the way you think best serves your client's interest. Attack. Let the others figure out how to respond to you. Ask for what you want, assert what you believe to be the best statement statement of the law. If someone objects, let them. Trial is not a consensus building activity between judge, prosecution and defense counsel. You are there to fight. Object every time you disagree. Preserve issues for appeal. If you lose the case, be sure your client can live for another day.

"Finally, force error," I tell young lawyers. "Know where the law is unclear. Force the hand of the prosecution and court to make ruling and decisions that require them to take a risk. As always don't be bashful. The truly creative part of being a trial lawyer is to come to the end of a road somewhere where competing legal doctrines intersect and the way forward is not clear. Find a mile marker just beyond the intersection and press on in the name of your client's liberty, of limited government and of commitment to principle. Some of the most amazing things I have ever seen happen at trial came in such wastelands. Seek the desert to see what blooms."

I've given this speech more times than I can recall, and many times I have sat with a lawyer after trial and offered such consolation as I could in the face of disappointment. We are prizefighters, I tell them. We fight for freedom, or, if freedom cannot be had, for the sake of principle. Yes, you were bloodied, but being beaten is a frame of mind. Go, recover, lick your wounds, but be prepared for tomorrow's fight, because the fight is all there is.

And then I am often reminded of the words of Jesus: "Greater love has no man than this, that he lay down his life for a friend." That is what you are doing, John, one client at a time. There is no end to the struggle. It is eternal. Such hope as we can realistically find comes in knowing that we will never surrender the fundamentals, never.

Now, I am heading off to Boston to visit a sick relative and some bookstores. Today, I care for my soul. The souls of others will have to wait until after my vacation ends.

Asshole of the Month: A Toronto Cop

Hat Tip: Jamison Koehler

Lawyers, Dogs And Definitions Without Words

I'm mid-way through a month away from the office and something like calm has descended. It therefore  came as a rude awakening last night to be reminded of emergencies in the office. I tossed and turned all night long, considering the issues that had arisen in the course of an afternoon. When I got out of bed this morning I recalled that a good night's sleep is a rare gift for trial lawyers.

I slept the sleep of the dead the other night. Flat out hours of lost consciousness; a dreamless oblivion from which I awoke refreshed and as though visiting a different world. We were in upstate New York at a dog training camp with Odysseus and Penelope, our border collies. As anyone who works with dogs knows, training dogs has less to do with the dog's ability to learn than the human's ability to teach.

At the end of the first day's work, Penelope was exhausted. She leapt onto our bed and looked at me with eyes that beckoned me for a cuddle. I lay down, and she burrowed next to me, her head on my shoulder and a paw draped across my chest. Soon we were both asleep. Sure, the Sun was still above the horizon, but we had worked hard in the heat of the day. Hours later Odysseus woke me up. He was sitting on the other side of me, licking my face. When I tell you this is paradise to me, I reveal perhaps too much. But I remind you, dog is God spelled backwards.

Dogs are instinct and drive. So, frankly, am I. A fact pattern presented by a client's problem is a lawyer's chew toy. We gnaw, gnaw and gnaw some more until were are too tired to attack any longer. Then we sleep, but even in sleep the gnawing continues. This deeper gnawing is the real work of a lawyer. Can you make the client's troubles your own? Can you identify with the drives of strangers and discern which paths are congruent with a client's interests? None of this work is easy, and little of it takes place in the forefront of the mind's eye.

So last night we returned from New York, unpacked and checked email accounts. We' d been more or less out of reach for four days. It seemed like a moment, although a moment tasting of eternity. Trouble seemed to cascade from messages accumulated in just a few days time. I faltered at shouldering them, and then I fought the need to engage issues not my choosing. When I set aside the book I was reading and turned off the light, I fell fast asleep. I thought I might have preserved the peace that comes of being away from it all.

But a couple of hours after falling asleep, I was wide awake, as I usually am during the work week. Almost against my will the infinite permutations of a new crisis played themselves out, almost performing in a twilight theater. I knew then that something in me had engaged and that disengagement was not an option. So I read through the better part of the night; I read a book on, what else?, dogs and how they experience the world.

Sleep returned hours later and with it came dreams about Odysseus. When he greeted me this morning with bright, crystalline eyes, I felt as though I understood him so much better than I had only yesterday. My instincts had taken control, pushing aside the critical faculty to make room for patterns and possibilities that will present themselves to me in the course of a case as fully formed strategic options. I should be grateful for this night work, but I much prefer rest.

We head back to upstate New York this weekend for another week of working with the dogs. I cannot express how deeply I look forward to this time alone with them. They teach me much, and I learn that beyond words there are experiences that define without definition.

The Killing of Oscar Grant

There's just no way to sugar coat the killing of Oscar Grant. A white cop shot the kid to death, in the back, in front of witnesses, and was videotaped doing so. And still a jury could not find it in its collective heart to convict the cop of murder. Instead, jurors concluded the cop made a mistake. Jurors think Johannes Mehersle just committed a boo-boo, you see. The poor officer thought he was reaching for his Taser. His only intention was to shock Grant senseless. So Mehersle was convicted this afternoon of involuntary manslaughter, not murder. Kill a black kid without justification in this country and it's the three-fifth compromise all over again.

It is tense tonight in Oakland, where people feel betrayed by the verdict. Let's not sugar coat things here. Let's call a spade a spade: White cops can coon hunt in the subways. They just need to be careful not to get caught. Had this incident not been videotaped there would have been no conviction at all. There most likely would not have been criminal charges at all.

I've litigated civil cases involving police killings of civilians. Most often, there aren't witnesses to call for my side of the aisle. My client is dead. If there were family members present to see the killing, they're easily discredited. I recall one case in which the police shot my client in his kitchen as his mother watched. She wept on the stand. I thought she was a good witness until she told the lawyer defending the killer that she watched her son's soul fly to heaven after he was shot. "You are sure you saw that, ma'am? As sure as you are that you saw the shooting?," the lawyer asked. "Yes," she wept. The lawyer rolled his eyes. An all white jury looked across the ethnic divide and said farewell to this woman: she was an Arab, and even before 9/11 those people were just too different in white world.

But the case that troubles me most involved a young boy named Alex. Police were called to his home in response to an emergency call. When they got to the home, his mother answered the door. She looked distraught. The home appeared to have been the scene of a violent struggle. The officers approached Alex who was struggling and resistant. 

While in the privacy of the kitchen, two officers and Alex struggled. The officers later testified Alex was on his stomach on the kitchen floor. His hands were beneath his body. As an officer took each arm and tried to pry his arms loose, the officers heard a blast and smelled gunpowder. They concluded Alex had a gun beneath him. So one of the officers pulled out his weapon, placed his knee on Alex's back, and shot him point blank in the back of the head. 

Alex's mother never saw what went on in that room. The only two witnesses were the police officers. They could say anything they liked because there were no other witnesses. Alex was good and dead.

An expert retained by the family to review the evidence concluded that the police officer's decision to shoot Alex was not justified or reasonable under the totality of the circumstances. An expert retained by the insurance company representing the police concluded otherwise. Alex's trial lawyer was confident he would get to a jury.

But a United States District Court Judge, I believe it was Robert Chatigny, decided otherwise. (Judge Chatigny now awaits confirmation as an appellate court judge.) He decided the shooting was justified and granted summary judgment, concluding that no jury could decide that the officer had done wrong. Judge Chatigny, who had never tried a case to a verdict as a lawyer, figured he knew best. We took an appeal to the United States Court of Appeals for the Second Circuit. If the experts in police procedure disagreed, wasn't there enough to get to a jury? No, the court held. Dead men can't talk; the cop walked.

I've never recovered from the shock of that ruling. I will always recall Alex as a young man executed point blank by a police officer.

So from afar as I read about the Grant shooting I am amazed that criminal charges were brought at all, and even more amazed that there was a conviction, even if it was for a crime far less egregious than murder. It is a cop's world, and young men of color rarely have a chance against the police when something goes wrong.

But for the video clips taken by young men and women nearby there would have been no criminal investigation of Johannes Mehersle. His brother officers would either not have seen what happened, or would have described a struggling Grant, a man who called death down upon himself by failing to comply with the commands of officers. I am certain of this because I have heard the same line of bullshit more times than I can remember.

So I draw a lesson from Grant's death. Community matters. Caring matters. The people who stood by and provided witness to this shooting are unlikely heroes. This is the best form of community policing. Shine a light on the man with a badge every chance you can get. Record interviews; videotape confrontations; question authority. Do it because if you don't they'll shoot and kill the next Oscar Grant and blame it all on the dead man, just like they do in countless other cases across the United States.

Why I Would Never Vote For Ned Lamont

I would not normally write about the voir dire of a prospective juror. I respect how difficult it is to answer questions in open court in the presence of strangers. But I am going to make an exception just this once. I am going to make an exception because the prospective juror is a public figure and is now interested in becoming governor of the State of Connecticut. The man’s candid answers under oath are worth pondering. I was surprised when Ned Lamont surfaced in a jury pool in Stamford in the wake of his race against Joseph Lieberman for the United States Senate. Sure, I knew that a guy named Lamont had run, and sure, the fellow sitting in the back row looked a lot like the politician. But I don’t watch television, except for college football, and I’d only seen a few pictures. I suppose I was also a little star-struck. Ned Lamont? In my courtroom? When he was called out for questioning -- jurors are questioned one at a time outside the presence of all other potential jurors in Connecticut -- I decided to treat him as I would any juror. I have a stock set of questions designed to test a venire person’s willingness to apply basic legal principals in a criminal case. I sometimes fear that what the criminal law requires of a juror is counterintuitive, and that jurors will follow their intuition rather than the law. "Suppose the judge asked you to vote, this very minute, on whether my client is guilty or not guilty of any or all of the crimes charged. Based on your life experience, the legal principles you learned about today and what you’ve seen in this courtroom, how would you vote?" The question is designed to test willingness to apply the presumption of innocence. A vote in the absence of evidence should be "not guilty". That is axiomatic. Yet most venire people say they cannot vote because they have heard nothing. Some say they would guilty; the defendant, after all, must have done something wrong or he would not have been arrested. No more than 10 to 15 percent of jurors answer that they would vote not guilty because they have heard no evidence. I expected Lamont to fall within the class of those who grasped without tutoring the presumption of innocence. I was wrong. He looked puzzled, even a little annoyed by the question. He told me he couldn’t vote, because he had no evidence. "Did you see anything on the film shown to jurors that led you to conclude there were legal principles with which you disagreed that you would be required to follow here?" "No," he said. "If I understood the judge, the presumption of innocence means that unless and until the state proves its case beyond a reasonable doubt, if it can, the law requires that you vote "not guilty." Any reservation about doing so?" "No," he said. I caught a glimmer of what he must look like on the stump, a man fighting for American values and flustered that anyone could doubt him. "You’re going to think I tricked you in a moment, so let me apologize now," I said. "Can you see how if you used the presumption of innocence we just discussed, your vote right now would have to be "not guilty" because you have heard no evidence?" Most jurors blush a little, or nod in recognition of a lesson newly learned. Not Ned Lamont. He started to argue with me. He just didn’t seem to get that in a criminal trial, the starting point is the presumption of innocence. He looked betrayed by the question and started to quibble about whether the presumption of innocence really did require a vote of not guilty in the absence of evidence. The prosecutor and I quickly looked at one another; even the judge seemed startled. Ned Lamont, erstwhile candidate for U.S. Senate, either unable or unwilling to understand the presumption of innocence. I was troubled by Lamont’s response. So troubled that I rejected him as a juror in a case where my client’s life might depend on his decision. I am hard-pressed to conceive of a reason why I should trust him with stewardship involving my life. If I had to vote this minute for governor of the State of Connecticut, I would not vote for Ned Lamont. He just didn’t get the presumption of innocence. Reprinted courtesy of the Connecticut Law Tribune.

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