Thursday, April 22, 2010

Bits and Pieces

Mirriam Seddiq, at Not Guilty (a terrific blog I'll be adding to the list as soon as I update and which has the wonderful tag line "We are all not guilty of something. . .") has a great post about criminal defense lawyers being grizzlies whatever they look like on the surface.
Look at me, I'm so cute. Look, the panda is pregnant. Look, the panda is having twins! Look, the panda is staying home to raise her twins! She joined a playgroup! A multiples group! Look! Panda is um. . . what the. . what the fuck is happening to the Panda? Holy shit. That's no panda! That's a grizzly. RUN!! RUN!!!

I am scaring my new friends.
Damn right. But see, and here's the important thing. She's scary for a reason.
There are these people that prosecutors and some lay people (read: non-lawyers) call "True Believers" And true believers, dear 9 readers, are scary. Because they believe, truly, that everyone deserves not just a defense, but a kick ass defense. They believe that even when people do really bad things, someone needs to stand between them and the government. They believe in the Constitution and the Rule of Law.

Back in the olden days, when I was a baby lawyer and prosecutor, I didn't understand this phenomenon. I thought defense lawyers just did this cause it was their job, you know, like brick laying or working at Wendy's. They didn't really BELIEVE the stuff they said. They only said it cause they have to.

I will admit, sometimes you do an internal eye roll at some of the stuff your clients tell you, but the stuff I say, the stuff I write - I BELIEVE. Because if I don't, no one else will. And if I do, others will too.
Got that? We mean it. And we believe it. All of it. Not just that noble stuff about the Constitution and the Rule of Law and how sometimes are clients really didn't do it. But we believe it all.

Consider this guy.

About 37 years ago, he was on trial for rape and kidnapping and armed robbery. He was represented by a lawyer named Alvin Moore. Moore stood up that Maricopa County courtroom (same Maricopa County, but before the era of Joe 'n' Andy) before the aptly name Judge McFate and said something like,
Your Honor. My client here may have confessed, but the local police didn't tell him that he didn't have to. They didn't say he had a right to remain silent. They didn't say he had a right to speak to a lawyer. And so, your honor, even though it says on his written confession that it was voluntary, it wasn't. His rights were violated. And you should throw out the confession of my client, Ernesto Miranda.
McFate, to what I expect was nobody's surprise, overruled Moore's motion. I don't know what the judge said, exactly, but I've always imagined the ruling was accompanied by suppressed giggles or eye-rolling or anger.

Here's the thing, and it's what Mirriam says so well. We believe this shit. Even when we're just starting it. Even when nobody's ever said it before or sold it before. Even when it seems frankly outrageous. We believe it because, as she says, if we don't believe it, we can't sell it. But we believe it, too, because dammit, we're right. It should be the law. And if we keep at it . . . .


On Tuesday, as you know, in United States v. Stevens, SCOTUS declined to carve an exception out of the First Amendment so that visual depictions of animal cruelty could be criminalized. The animal rights folks are deeply disappointed, of course, when they're not apoplectic.*

Still, when Kent Scheidegger and I both agree that a law is unconstitutional, there's some likelihood that we're right. Of course, Kent would like to see a constitutional version of the law, but hey, this is closer than we've ever been. (Far less surprisingly, Bill Otis thinks Alito was right.)


A couple of weeks ago, Brian Tannebaum began a campaign to convince Obama that Scott Greenfield was the man to replace Stevens (not the dog-fighting video Stevens, the Supreme Court Justice Stevens) on the Supreme Court.

I thought there wasn't a chance, but lent my endorsement in a comment. Greenfield wrongly thought the endorsement reluctant. Rather I was recognizing it as futile. (A judge once asked me to serve on his re-election campaign committee. I suggested it might hurt his chances. He said that he'd debated it with others on the committee and they'd concluded that on balance I'd get them 2 or 3 more votes than I'd cost them.) In any event, turns out Scott didn't get the call.

The short straw went, instead, to the darkest of dark horses: Gerry Darrow. We can all be proud. Truly, this is Change We Can Believe In. A lawyer of the people, from the people.

Well played, Barak. Well played.

Oh, you mean it isn't true? Damn.

Back to Greenfield for the court.

Here's one commenter from the Cleveland Plain Dealer:
The Supreme Court is a joke. I cannot believe this. They think that torturing animals, videotaping it for bragging rights, and distributing the immoral activity all over the internet is FREE SPEECH!!!! OMG. Our country is just doomed. We are doomed. I cannot believe this. They are certainly no longer a high authority. They are immoral non-humans in black robes.

1 comment:

  1. I couldn't agree more on Mirriam Seddiq and the blog.

    My criminal procedure professor at law school told a funny story about Ernesto Miranda. When the professor's mother read in the newspaper that Miranda had died, she said: "Oh what a shame. And after all he's done for our country."