Tuesday, October 1, 2013

Making the Impossible Argument

Guy was charged with breaking and entering with intent to commit petty larceny at the Bay Harbor Pool Room, a pool and beer joint in Panama City, Florida. He asked the judge to appoint him a lawyer for his defense at trial.  Nope, sorry, no can do.  But he insisted.  And insisted.  He said it was his right under the Constitution.

Another guy, charged with kidnapping and rape and armed robbery.   He confessed.  He did have a lawyer, Alvin Moore, who asked the judge to suppress the confession because even though every page of the confession said that it was made with "full knowledge of my legal rights," nobody actually told him what they were.  The judge said no.  But he kept pushing.  Said they had to tell him.

And yet.

This morning, on a listserv for lawyers who do capital defense work, one lawyer wondered why we raise claims that cannot win.  (There was a particular context for his question, but the context is irrelevant here.)  It is, as that lawyer well knows, something we do all the time.

The death penalty is unconstitutional, we say, knowing even if some judge were to agree it wouldn't matter.  The death penalty, as an abstract proposition at least, is currently constitutional because the Supreme Court says that it is and in our system, any five of them who agree get to decide. 

It's unconstitutional to execute someone whose lawyer did a terrible job even if the evidence was overwhelming and the jury would likely have said "Kill" even if he'd had a good lawyer, we argue, knowing that the Five Who Decide disagree.

It's unconstitutional to . . . .

Jump in where you want.  He has a right to remain silent even if he doesn't specifically tell the cops to stop questioning him.  He has . . . . Fuck it.  Like I say, we make these arguments all the time.  And we just know we're gonna lose.  Even when we believe that on a fair reading of the Constitution or the law or the precedent we should win.

There's the heinous crime rule (if the crime is heinous enough, there's no such thing as reversible error).  There's it's corollary, the one kilogram rule (if there's at least one kilogram of drugs, they won't be suppressed).

A judge once told me that he would have dismissed the case for violation of Ohio's speedy trial statute if it had been a misdemeanor or low-level felony, but the charge was Aggravated Murder, and he wasn't going to just dump that case, regardless of what the law actually said.

And yet we do it.  Keep making the arguments.

As Clarence Earl Gideon did when he was being tried for breaking into that pool hall.  As Alvin Moore did on behalf of his client, Ernesto Miranda.

One lawyer, in a response to the listserv question,wrote this. 
Fundamentally, he asks why we raise claims that cannot possibly prevail or bring meaningful relief to our clients, and that may even be met with scorn and derision by local decision-makers.  There are many answers to that question, of course, most of which people can reason out for themselves.  But the most significant is often overlooked.  As practitioners, we have a distorted view of the death penalty. We see it through the particularizing lens of individual clients faced with more or less unique problems raised by litigation in many different fora.  Indeed, the impetus for this list is to overcome precisely that centrifugal tendency.

But that is not how the larger public views the death penalty.  For most people, the death penalty is a collage of images that merge together to create an over-arching impression, which they file away in any number of categories.  They think of it as a whole, in other words, and use simple categories to describe it--categories like, "racist," "unfair," "barbaric," or "just," "deserved," "necessary."  And this is not just laypeople.  Everyone does this with almost any issue for which their involvement is remote.  If you don't believe me, what are the first three words you think of when you hear or read, "Tea Party"?
We are, you see, as lawyers,  advocates for our clients.  We are also advocates for a legal system that works as we think it should.  

The claims on which we cannot prevail?  Sometimes we do.  Just as we sometimes win the cases that, seemingly, cannot be won.  Mostly, of course, those claims fail, just as usually lose those cases.  But not always.  Gideon eventually not only got a lawyer, he prevailed at the retrial.  (Miranda, with his confession to the cops suppressed, was convicted at his retrial.  Not every ending is altogther happy.)

So there's the chance, always, in the case.  But there's the larger point.  When the Supremes decided Furman in 1972 and declared all our current death penalty laws unconstitutional, it wasn't entirely a sudden epiphany on their part.  It was the culmination of strategy.  (The same, but even more clearly, when they decided Brown v. Board of Education in 1954.)

These things don't just happen.  They're the consequence of raising and refining arguments.  Of forcing, as best we can, the courts and the system to confront their injustices.

When the prosecution is done with its case, the jury knows:  Our client is a monster.  Then it's our turn.  We teach them, show them, make them see that whatever he's done, he's just a guy.  If you prick him, he bleeds.  If you tickle him, he laughs.  And if you kill him, you kill a bit of yourself.

Do the right thing we say.  Again.  And again.  And again.  First one says it.  Then another.
It's a battle not just for the courts, but for the public, which is where this has, finally, to be won.  And where, by the way, it's winning.  Which is at least part of why death sentences are significantly down.  And part of why Congress is looking askance at mandatory minimums.  And why Lundebeck decided to stop selling pentobarbital for executions.  And why . . . .

It's about 10:30 at night.  In another 90 minutes or so, it will be October 2, Ghandi's birthday.


  1. I got into this argument with a colleague the other day while complaining that I can't fit all the things wrong with a particular case in the 50 pages allowed by the Idaho Appellate Courts. I wish I trusted them to understand the argument if I did each one in a page or two, but I don't. She said, "You should do capital defense work, they raise everything." Yeah. Maybe. Or maybe we should take it seriously whenever the state and the courts are violating the law and our rights.

  2. "... we are advocates for our clients" also means that you are advocates for human beings, whose lives and deaths shouldn't be subjected to the whims of political expediency and the personal ambitions of judges and prosecutors. Keep fighting.

  3. And just as Ghandi famously said, and it is still true today, Western civilisation would be a good idea.

  4. The correct response to the judge in your story should have been

    "Thank you Judge you have just confessed to being a leing twofaced little shit on HD Video and Audio. You will shortly be either disbarred or arrested!"

    1. Well, that would have been the correct response if my goal were to piss off the judge.

      And any such threats would have been empty (as he'd certainly have known). Even if I'd had such a recording (which I did not), and if I'd presented it to both disciplinary committees and police, neither would have done anything with it. And, by the way, it would not have interfered with his reelection had he chosen to run again.

      I could add that he was, most of the time, a very good judge. He was disappointed in himself and knew that I was disappointed in him. That disappointment was far more likely to get him to push back - ever so slightly, but to push back - against the heinous crime rule than any display of anger or idle threats.