Uncle Fred and the Texas Bar

Decades ago, back probably when I was a baby lawyer, the Texas Bar Journal (the, er, literary arm of THE STATE BAR OF TEXAS to which every Lone Star State lawyer must belong) announced that it was looking for contributions from members who might take positions that, you know, THE [stodgy] STATE BAR OF TEXAS (did I mention that every Texas lawyer is required to be a member?) might not absolutely favor.*

So I wrote this piece called something like "Uncle Fred in Court."  My thesis, simply, was that since it was allowed (not favored, but allowed) for folks who weren't lawyers to represent themselves in court, to go pro se, they really ought to be able to have, say, their Uncle Fred, who also wasn't a lawyer but they figured was a lot smarter than they were.  Sure, they ought to have a lawyer (preferably a competent one, but THE STATE BAR OF TEXAS didn't really make too much of a fuss about that once someone got licensed)******

I made, as I recall, a pretty substantial argument filled with warnings and risks and legal problems and qualifiers and whatnot.  It's even possible I favored the idea.  It's even possible that, if I could now read what I wrote then I might favor the idea.  Or maybe not.  I don't have a copy of what I wrote and the Texas Bar Journal, that, er, literary arm of THE STATE BAR OF TEXAS, never even acknowledged receiving it, certainly didn't publish it.  And never again solicited potentially controversial articles from its members.

Anyway, as I noted in footnote ****** (yes, numbers or another system would have been easier for you and for me but I'm enjoying the silliness here), it's the ABA that accredits law school.  Has been for decades and decades.  And just as the no-longer-red-haired guy (you've noticed that, too, haven't you?) has declared that the ABA won't be vetting the qualifications of his judicial nominees any longer, so there's discussion of getting it out of the business of accrediting law schools - which makes it, really, an accreditor of the vast majority of lawyers in the Good Old USA.

Which brings me back to the Texas Bar Journal, the, er, literary arm of THE STATE BAR OF TEXAS.  I got my copy of trhe latest issue yesterday, and I saw this 

ORDER INVITING COMMENTS ON THE LAW SCHOOL ACCREDITATION COMPONENT OF TEXAS'S BAR ADMISSION REQUIREMENTS

And yes, that's how it appeared, all in caps and boldfaced.  

I won't bother you with the full "Whereas" and "Order" parts (also in boldface and the latter ion all caps).  But here's the meet:

Until 1983, the Supreme Court of Texas (which actually does the licensing of Texas lawyers) decided for itself which law schools would be accredited (though it didn't use that word).  In 1983, it gave that job to the ABA.  But now, it's rethinking that and asking folks (Texas lawyers only, I imagine) for "feedback" on (1) "whether to reduce or end the Rules' reliance on the ABA" and (2) what the hell to do if it decides to dump the ABA.  (Yeah, it phrases that second issue more delicately, but I know what they mean.) 

Naturally, Texas could do nothing, just keep things the way they are.  

Then again, there's history.  (Note the past rearing its ugly head again.) As I wrote in a comment on Greenfield's post (see footnote ****** for the link),

Historically (if I understand correctly), there were two routes to becoming a lawyer: (1) Attend law school; (2) “Read for the bar” which basically meant intern with a lawyer for a considerable period of time and then take an exam. The people who did one, didn’t trust the competence of the ones who did the other. So the system compromised by requiring both law school and the bar exam.

It’s my understanding that as in one or two states degree from an unaccredited law school may allow someone to take the bar exam and practice in that state, so there may be a state or two that allows reading for the bar (with some sort of oversight I expect) and then an exam with no law school at all.

Texas could do some of that.  Allow for non-accredited law schools.  Dump the law school requirement altogether and just rely on the bar exam.  

Or, of course, it could just say that Uncle Fred can represent his nephew in court.

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*Have you noticed that this is the third of my Lazarus, back-from-the-dead posts and they all take on things from the past, which as I quoted Faulkner about, is never past.**

**And see how I'm trying to put the digressions here into footnotes?***

***At least the footnotes that deal with the past - and that are, themselves self-referential and surely of no interest to anyone but me, if even to me.

****OK, you can return to the regular programming at the top of the page now.*****

*****God, this is why blawging used to be such fun.  Or not.

******Wait, this one's substantive.  Getting licensed meant graduating from an accredited law school and then passing the bar exam.  And law schools are accredited by the American Bar Association which may or may not be as stuffy as it was back in the day but has certainly become more controversial (and probably less stuffy, but I haven't been a member for several decades now so I don't really feel competent to address that and frankly don't much care.  Anyway, see Greenfield's post from Tuesday about ABA accreditation which is kind of what got me thinking about this stuff and then - well read on at the top of the page.

 

The Past. It's Always the Past.

"The past," Faulkner famously said, is never dead.  It's not even past."

So when this blawg returned two days ago from what certainly seemed the dead, it was a Faulknerian return hearkening to and including (resurrecting, if you will - and I will even if you won't) it's own past as well as . . . . Feh, you get the point.

But it wasn't just here, not just me.  For my blawg's resurrection reminded Greenfield of what this blawgging world used to be.  It was fun and lively and, frankly (I really do believe this) important.  We wrote because we had things to say, things to get off our collective and individual chests.  We challenged, squabbled, supported, disagreed.  And it was worth it.  Day after day.

And posting, and then Greenfield, made me remember, made me feel the loss.  And so, maybe I'm back.  Just maybe.

As it happens (and that was all kind of a digression, so really you could have skipped over it), in my more-or-less retirement out here in Phoenix where the sun don't seem ever to stop shining, I'm in a couple of book groups.  This month, the discussion for one of them will be about David Enrich's new book: Murder the Truth: Fear, the First Amendment, and a Secret Campaign to Protect the Powerful.  

Enrich details how folks with a lot of money (and some without a whole lot who are often bankrolled by folks who do), want to and try with some success to undermine the First Amendment's protections of free inquiry and reporting.

Look, the basic idea, as the folks at One First Street in DC (that's the Supreme  Court) have made clear over the decades, the First Amendment protects even falsehoods about public figures as long as they're not reported with actual malice.  And actual malice doesn't mean that the speakers/writers doesn't like the person about whom the falsehood is offered but, rather, that they either knew it wasn't so and said it anyway or were recklessly indifferent to the question, that they didn't exercise even minimal care to try and get it right.

That's the standard SCOTUS adopted some 61 years ago in New York Times v. Sullivan.  And despite some grumbling by Clarence Thomas and Neil Gorsuch who think it should be jettisoned, it remains the standard for libel.  

Though he does, like so many, get the claim Holmes asserted wrong,* Enrich generally gets stuff right.  And his book serves as a powerful reminder of just why Sullivan is so damn important, why, therefore, so many folks on the right and on the left would like to junk it, and how essential it is that we the people fight back.

Anyway, as I was reading the book, I realized that I'm almost certainly (and here we go again, because the past is never dead) the only person in the book group who's ever been sued for libel.  Rakofsky v. the Internet (or, as it's technically named, Rakofsky v. the Washington Post, et al. I, of course, am one of the 73 in that "et al" or as we sometimes referred to ourselves collectively, "The Rakofsky 74."

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* Enrich claims the rule Holmes set forth is that "you can't say fire in a crowded theater."  Tim Walz, among countless others, repeated that rule in his VP debate with J.D.  What Holmes actually said in Schenck v. United States was far more nuanced (and is still not the law today - if it ever was):  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic” 

In Memoriam

 It's getting on to 14 years since I wrote about Sonny Jacobs and Peter Pringle.  I teared up when I wrote that post and suggested that you, my faithful readers might do that also.  I just read it again, and teared up again.  Of course, I'm easy.  But still.

It's a bit more than a year and a half since I last posted anything here - not because I didn't have things to say but because . . . . Damned if I know.  I just haven't.  (Greenfield, how do you keep doing it day after day and year after year?)

Why now, you may wonder?  Why today? It's about death.

See, I'm old.  What goes with being old is knowing too many people who are ill, too many people who've died.  And given decades of work defending folks who were charged with, convicted of, very bad things, many of whom were sentenced to be killed by the minions of the state - and too many of whom were killed by those minions - death is something that . . .  . Well as Jodi Ernst stupidly (if accurately) said, we're all gonna die one of these days.

And so it is that Peter Pringle died a couple of years ago, though if I knew that it didn't register.  But when I learned that Sunny died in a house fire this morning, it sent me back.  And as I said, it sent me crying.  And made me take up the computer and write this.

Go back then, and read the original post if you will.  (No need to search, here's the link:  https://gamso-forthedefense.blogspot.com/2011/11/in-galway-bay-love-story.html)

And I want to add this picture from the NY Times article I cited and quoted then, a picture which, for some reason, I apparently didn't include back then.

Rest in peace Sunny, and Peter too.

11/11: 11 a.m.

Eleventh of November.  Eleven in the morning. 1918.  That's when the armistice ending the fighting in the War to End All Wars went into effect. Not the end of the war.  That wouldn't come until the Treaty of Versailles, more than seven months later, on June 28, 1919.  So not the end of the war, but the end of the killing.  No small thing that.

Eleventh of November.  Eleven in the morning. 1919.  Five and a half months after the treaty, but one year to the minute after the armistice took effect. One year to the minute after the end of the killing.  That's when King George V declared Armistice Day and called for two minutes of silence.   We celebrated that day on this side of the pond, too.

A day to remember the dead certainly.  But as the name Armistice Day connotes, it's a day to celebrate peace.

Or, it was.

Because, as Karen Zraick explained in yesterday's Times, "In 1953, Alvin J. King of Emporia, Kan., proposed changing the name of the holiday to Veterans Day, to recognize veterans from all wars and conflicts."

And so it would be.  We no longer celebrate Arfmistice Day on November 11.  We give November 11 to honor the vets: Veterans Day.

As Zraick points out, Memorial Day is to recognize those who died.  Veterans Day is for them too, but equally for the all the rest.

But what of the Armistice? What of the peace - not the peace of desolation, of the desert,* of John McCrae's graves amid the poppies,** but the peace of quiet of calm.  The peace we'd vainly hoped would come after the War to End All Wars.  Or the next one.  Or the one after that.  The peace where we say, collectively, universally,

NO MORE

I really am all for Veterans Day.  They deserve it.  But damn, we sure as hell need to get Armistice Day back.

----------------

*From Tacitus we take the sometime truism, "They make a desolation [sometimes translated as "desert"] and call it peace."  Though it's perhaps worth noting that Tacitus himself was quoting Calgus who was referring to the Romans.  

**

In Flanders Fields
by John McCrae

In Flanders' fields the poppies blow
Between the crosses, row on row,
That mark our place: and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders' fields.

Take up our quarrel with the foe;
To you from failing hands we throw
The torch; be yours to hold it high,
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders' Fields.

Executioners

No person shall purposely, and with prior calculation and design, cause the death of another or the unlawful termination of another's pregnancy

That's Section 2903.01(A) of the Ohio Revised Code setting forth the elements of one form of the crime of aggravated murder.   Anyone who is found guilty of doing that faces a minimum of 20 years in prison.  

If the person is also found guilty of what we call a "death specification" (the death specs are set forth in R.C. 2929.04(A)) the person can receive the death penalty. If that happens, and if the sentence is carried out, the prison guards who perform the execution will, of course, have 

purposely, and with prior calculation and design, cause[d] the death of another.

Which, of course, would seem to allow them to be sentenced to prison for a minimum of 20 years and maybe to be sentenced to be killed.

I've made that point before, just as I've pointed out that there's no exception in the law - at least none in either the Ohio Revised Code or in Ohio's case law - for doing the killing at the direction of a judge or a panel of judges.  

As I've also said, ain't nobody gonna get charged with aggravated murder (with or without death specs) for carrying out a court authorized execution.

I've lso pointed out, from time to time, that a substantial number of executions - both in Ohio and elsewhere - are botched, screwed up.  They take too long.  Things go wrong.  Flames shoot out of the head of the guy in the electric chair.  Prison guards have trouble sticking a needle in a vein to inject the lethal drugs.  The drugs don't actually provide the theoretically authorized painless killing. The hanging goes wrong and instead of a quick neck snap the victim dangles choking or gets decapitated.  Sometimes the execution fails completely and the person doesn't die.

And either the powers that be swear, despite the evidence, that nothing went wrong or they promise to double check their protocols and practice better and make sure it won't happen again.

Ho hum

And then I was reading The Faithful Executioner: Life, Death, Honor and Shame in the Turbulent Sixteenth Century, by Joel F. Harrington, history prof at Vanderbilt University.  It's the story of Meister Frantz Schmidt who for some 45 years, from 1573 to 1618, most as the official executioner (and also torturer, by the way) of Nurenberg.  Meister Schmidt was an interesting guy, a second generation executioner who wanted nothing more than to be relieved of the social and legal ostracism that came with the job.  

Of course, executions were public spectacles in those days.  And while Schmidt was apparently really good at what he did, other executioners were not so competent.  You know, they sometimes botched the job, didn't kill smoothly and easily, screwed up somehow.  Harrington quote a report on the 1641 effort by Valentin Deuser to cut off the head of Margaretha Voglin, "an extremely beautiful person of nineteen years" and, oh, a child murderer.  

She was in sorry shape, "ill and weak."  She had to be carried to the chair for her beheading.  Before getting the job done, Deuser apparently stalked around her, waving his sword.  He accidentally hit a bit of wood, sliced a chunk of skin off her head, and knocked her out of the chair. And

since he hadn't hurt her body and she fell so bravely, [the crowd] asked that she be released.

Nope.  Deuser grabbed her, put her back on the chair, took another swipe at her neck, nicked her that time, again knocking her off the chair.  And while she pleaded, "shouting, "Aiee, God, have mercy!" he

hacked and cut at her head on the ground, for which cruel butchery and shameful execution [he] was surrounded by people who would have stoned him to death had nto archers present come to his aid and protected him from the people.

Deuser was arrested and then fired from his job.  But apparently he was not the only screw up.  As Harrington explains,

Mishaps leading to mob violence and lynch justice jeopardized the core message of religious redemption and state authority.  In some German towns and executioner was permitted three strikes (really) before being being grabbed by the crowd and forced to die in place of the poor sinner.

In his concurring opinion in Furman v. Georgia, Supreme Court Justice Thurgood Marshall floated an idea that's become known as the "Marshall Hypothesis."  He thought that 

people who were fully informed as to the purposes of the penalty and its liabilities would find the penalty shocking, unjust, and unacceptable.

It's been suggested that one way to effect the hypothesis - and then end executions - would be to make them public again.  Looking at the responses to botched executions in renaissance Germany, suggests Marshall may have been on to something.

A Moment of Remembrance

September 15, 1963. 

Sixty years ago today.

Birmingham, Alabama, USA

These girls

This church

You know, this one

Here they are again

Sixty years ago today.

Tree of . . . Life (?)

Article after article, op-ed after op-ed tells us that the Jewish community is torn, that the Torah and the Jewish tradition and the rabbis can't all agree.  Which is a problem if you're looking for a authority.  Me, I'm just a capital defense lawyer with a blawg who hasn't written much in recent years.

* * * * *

Folks who know me, as well as those who don't but have read this blawg even occasionally, know I am an abolitionist.  An opponent of the death penalty.

Also I am Jewish by birth and was raised Jewish.  I'm an atheist, but still. 

I lived in Pittsburgh for five years.  I went to college there.  I lived in Squirrel Hill where the Tree of Life synagogue is located.  I have family and good friends there.  I visit fairly often.  I was there recently, drove past Tree of Life.  One night I had dinner at a friend's home.  He's Jewish, lives around the corner from Tree of Life, walks past it every day, has friends who worship there, feels the trauma.  

Those things may be relevant.  

So Robert Bowers.  Killer.  Anti-semite.  Apparently unrepentent.

An article, I think in the Pittsburgh Post Gazette, quoted a Pittsburgher, possibly a survivor of the shootings at Tree of Life, but possibly just someone from the community (I didn't save the article, and it was a few weeks ago), said "I oppose the death penalty absolutely in all circumstances" except for Robert Bowers."  Which I pretty much understand.  Because as Stalin is reputed to have said, 

The death of one person is a tragedy.  The death of millions is a statistic.

And when it's personal. . . .   You know, it's what Michael Dukakis got wrong.

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when he should have said 

I'd want to tear that person limb from limb, but . . . .

The other day,  family was in town and my brother-in-law, asked what I thought about the the death sentence Bowers got, said that he read someone who said something like, 

You can't forgive someone who doesn't ask for forgiveness and show remorse.

And so I quoted the Stalin line and referenced Dukakis and added that forgiveness was really beside the point.

I said that there were all sorts of good policy reasons to oppose the death penalty.  I talked of slippery slopes and how why not Stalin and Hitler and Pol Pot - and then maybe Robert Bowers and then maybe the next guy, because just how awful and evil is awful or evil enough. But I told the truth, which is that there are probably folks who deserve killing, and we can argue about who they are, but that's the quibble not the answer. *

So what I said, finally, is what I've said before in this blawg, which is that in some circles I'm recognized as an atheist who believes deeply in mercy and grace.  And that they aren't about whether they're deserved.  They're about us, who give it (or don't).  

That it's not whether Robert Bowers deserves killing but about whether we deserve to kill him.

Nobody mentioned that line about him who is without sin.  But the atheist was reminded that he sounded very Christian.

Amen.

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*The story, attributed to most every wag of the 20th Century; I like to think it was George Bernard Shaw:

"Madame," Shaw said to the elegant matron, "would you sleep with me for a million pounds?"
"I suppose so," she replied.
"Then, would you sleep with me for 10 pounds?"
"Certainly not.  What sort of woman do you think I am?"
"We've established that," Shaw answered.  "Now we're haggling over the price."