Monday, May 18, 2009


Welcome to my experiment in cyberspace.

My goal is to advance some causes, to make plain what seems complicated, to complicate what seems plain.
I hope to educate, to inform, and maybe even to amuse a bit. Generally to mouth off. Hey, I'm a lawyer, what do you expect? But I hope to make this a somewhat collective enterprise, so please, comment.

You can learn a bit about my background and interests from the About Me paragraph. But this blog/blawg won't be particularly personal. If you want to know about the family dog (miniature poodle), the kids (two smart and clever and generally wonderful young men - one with his own blog), my wife of many years (also smart and clever and wonderful - but no blog), you've probably learned already as much as you'll ever know from here. If you need a few other details: I smoked for decades, stopped just over four years ago; I'm a carnivore; I drink way too much coffee and about the right amount of good Scotch. My politics are left. I read pretty much whenever I'm not working and my reading is, er, eclectic. The only sport I like is baseball; I'm a Mets fan.

I've never found the interesting questions to be the ones that have simple answers with which we can all agree. It's the debate, the argument, the working it out that's fun. I'll engage in some of that here. I (we) will be talking about the law, about the legal system, probably about civil liberties and politics, current events and social issues and maybe there'll be a book or movie review thrown in. And with your comments, perhaps we'll do some collective exploration.

Here's the basics:
  • I'm an Ohio criminal defense lawyer. I believe that everyone is entitled not just to a fair trial but to a perfect one. (Currently controlling law doesn't agree with me about that, but currently controlling law is wrong, and we'll explore why.)
  • I believe that the system is out of kilter. It's designed to favor the criminally accused because of our Anglo-American tradition that it is better that guilty people go free than that one innocent person be convicted. To help ensure that, the Constitution enshrined not a level playing field for prosecution and defense but a steeply tilted one. It's supposed to be hard to convict, easy to acquit. Juries really are supposed to be damned sure that the guy is guilty before convicting, and they're supposed to have the right to acquit even those they believe the guy is guilty if the law stinks. Judges aren't supposed to fear political backlash from ruling in favor of those who are charged with committing even heinous crimes. The police and prosecutors are supposed to play by the rules, and if they don't, the penalty should be that the accused goes free. That's how we build integrity into the system. More on that, too, as time goes on.
  • "That government is best which governs least," Thoreau said (in a quote often wrongly attributed to one of the Toms (Paine or Jefferson). He may well have been right. The problem is deciding what governing ought to be done. To oversimplify to the point of near misrepresentation, current Republican mantra is that government should regulate human behavior but not corporate behavior; the current Democratic mantra is to regulate the corporations but not the people. Neither approach seems particularly coherent. We'll talk about that.
  • Justice Scalia likes to point out that if you believe in a living Constitution, you believe that the Constitution means whatever five justices happen to agree it means this week. There's neither integrity nor consistency in that, and he's right. On the other hand, there's really no other way to interpret the document which, no matter what he may think, is often abstract rather than concrete. The provisions of the Bill of Rights were meant to be guidelines, not limits. On the other hand (am I up to three hands yet?), ours is supposed to be a system of limited government, which means that the Constitution must set some meaningful - and coherent - boundaries. We'll discuss this soon, first probably in the context of gun control and the Second Amendment.
  • I do a lot of death penalty work. I teach at seminars helping other lawyers do death penalty defense better. I've represented people who did truly horrendous things. There isn't one of them who doesn't have some possibility of redemption. The death penalty is immoral, it's unfair in application, it's dangerous given the near certainty that we have executed factually innocent people and the absolute certainty that if we kill enough folks, we will eventually make that mistake. But the death penalty is also truly stupid social policy. Much more to follow.
  • Honest, I'll throw in some jokes now and then, too, and some anecdotes from the trenches. Gotta do something to lighten the load.
Come along for the experiment. I can do this alone, but it gets kind of boring to keep prattling on when nobody's around to listen.

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