Sunday, October 17, 2010

And We're Not Going To Take It Anymore

There's a lawyer I know, a public defender, let's call him Mike.  Whenever I see him, Mike complains about the idiot and offensive things the judges in his rural, conservative county do.  He just can't believe how consistently they ignore well-established legal principles, ignore binding precedent, ignore the Supreme Court.  He shakes his head in sadness and bafflement.
Year after year, as he keeps fighting and struggling against those judges he asks me (I'm a lot older and have been doing it a lot longer) the same question.
I get so tired of it.  How do you keep going, keep fighting it?
And year after year, as he asks me roughly the same question, I give him roughly the same answer.
You get tired, but you keep going because you hold onto the hope.  I get tired but keep going because I hold onto the anger.
The system makes me angry.  It's the dishonest cops and the corrupt ones and the violent ones and the blue wall of silence that protects them, even coddles them.  It's the prosecutors who sign off on the snitches and the testilying, who hide the evidence and twist it.  And it's the law professors who pretend or sometimes even believe that the police and the prosecutors will act on what the courts say and better their behavior because, well, that's the law.
And it's the bankers and the oil company executives and the heads of the Fortune 500 and the doctors and the lawyers and the indian chiefs (but not the indians who aren't chiefs) who think and are dammit right that our country runs for them.  Because Calvin Coolidge was, sadly, maybe right when he said that "the business of America is business" even if Charles Erwin Wilson wouldn't have been exactly right had he actually said that "What's good for General Motors is good for the country."
And it's the media.  Not just Fox but the more seemingly neutral networks and even the MSNBC's and the New York Times and Washington Post.  Left, right, or center, they're all playing from similar scripts.  Oh, juggle a bit, but nobody's seriously talking about holding government accountable for the outrages.  Want an example?  Take a look at what happened to Helen Thomas when she dared to express a private opinion about Israel and the Palestinians. As she said,
I hit the third rail. You cannot criticize Israel in this country and survive.
No more than you can publicly say, even as a private opinion, that US policy is part of what inspires terrorists to attack us.  Of course it is.  That's not a criticism of US policy (which is not to say that US policy is good, just that the particular statement is not a criticism of it).  Nor is it a statement that the terrorists have a point.  But what the hell is wrong with acknowledging that they don't attack countries that they like?  Might it not make some sense to try understanding what motivates those who would destroy us?
And god knows it's the judges who enable so much of all that as they craft out of whole cloth things like sovereign immunity which, as Norm Pattis pointed out the other day in reviewing Erwin Chemerinsky's new book, has no place in a Lincolnian system of "government of the people, by the people, and for the people."  
Norm wrote of, and quoting, Erwin,
I was encouraged to read him take aim at sovereign immunity, the bizarre notion that in this republic of ours government is somehow beyond the reach of ordinary justice: "A doctrine derived from the premise `the king can do no wrong' deserves no place in American law. The United States was founded on rejection of monarchy and royal prerogative. American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic notion."  Amen, I say.
And as the Courts made up sovereign immunity, so they made up qualified immunity.  Here's Norm again from the same post, the next paragraph, in fact.
Oddly, Chemerinsky writes about sovereign immunity but neglects mention of an even more potent tool in the conservative arsenal of weapons used to keep ordinary people out of court, qualified immunity. This most obvious tool of judicial activism gives the benefit of the doubt to government actors in close cases and accounts for more dismissals prior to trial than any other legal doctrine. By way of example, the Practicing Law Institute in New York each year published a two-volume practice aid on litigation arising under 42 U.S.C. Section 1983, a federal statute that permits ordinary people to sue government actors for violating a person's federal rights. Fifteen years ago, one small chapter in the second volume of the aid was devoted to qualified immunity. The second volume of last year's aid was devoted to qualified immunity cases, and was more than 1,000 pages long. Just where did this doctrine come from? No one claims he framers intended it; no statute was passed by Congress to limit these claims. No, conservative judges cooked it up, and when they did, no one complained it was due to activism. I wanted to hear Chemerinsky's take on this doctrine. Strangely, the book is silent on the topic.
Because it's about power and the powerless and despite those nice words about "We the people," the framers didn't think women qualified or men who didn't own land or Native Americans or, slaves who didn't even qualify as full persons, let alone some of the "People" of, by, and for whom this union was formed.
So I get up in the morning to fight against it with the weapons I have - words and what passes for law. It's what we do, we in the criminal defense business.  It's what civil rights lawyers do.  It's what civil liberties lawyers do.  And, frankly, we mostly don't accomplish all that much.  We're sticking fingers in leaking dikes, patching the levees.  There are wins, big ones sometimes where we don't just hold our own or push back a little but make real progress.  But mostly we're fighting rear guard actions.
We talk from time to time about shaking the system up.  We cheer when a group of lawyers in Maricopa actually did stand up to Joe 'n' Andy one day. We go to court and plug away.
Like I say, it's what we do.
And now there's Lawyers on Strike.  A new blog, a new voice.  Urging more.
This [blog] will attack the problem at its root: judges. Judges favor the government in criminal cases. They favor insurance companies and banks – and the government again – in civil cases. Put simply, they favor the more powerful litigants and their attorneys over the weaker litigants and their attorneys. More simply yet, they are the ultimate apologists for the establishment and the status quo, precisely because their whole publicly perceived raison d’etre is the opposite.
So, what to do? Personally, I’ve had enough complaining, especially when it comes from lawyers. We are players in the system; if it’s broken, it’s at least partly our fault.
I propose to field reports (anonymity protected) from criminal defense lawyers and other disfavored litigants’ attorneys from anywhere in the United States concerning outrageous judicial conduct – not the kind that makes it into the mainstream press, like personal or sexual misconduct, but the routine, everyday dishonest, biased decision making that hurts those attorneys and their clients, resulting in wrongful convictions or other forms of justice denied.
Then, based upon criteria that I may or may not divulge in the future, I will decide if any of those reports justify a boycott of the judge involved by other criminal defense and/or independent attorneys.
Then I will use this blog to call for a “strike”: that is, to call upon all attorneys in the geographic area to refuse to appear in front of that judge.
It's a little difficult to see how it could work.  I don't like Judge X so when my case is assigned to him I'll refuse to litigate it?   I don't know.
But I appreciate the chutzpah.  And the balls.  And maybe the blogger has an idea of how to do it.
Not going on the blogroll just now, but worth keeping an eye on.

Do Not Go Gentle Into That Good Night
by Dylan Thomas

Do not go gentle into that good night,
Old age should burn and rage at close of day;
Rage, rage against the dying of the light.

Though wise men at their end know dark is right,
Because their words had forked no lightning they
Do not go gentle into that good night.

Good men, the last wave by, crying how bright
Their frail deeds might have danced in a green bay,
Rage, rage against the dying of the light.

Wild men who caught and sang the sun in flight,
And learn, too late, they grieved it on its way,
Do not go gentle into that good night.

Grave men, near death, who see with blinding sight
Blind eyes could blaze like meteors and be gay,
Rage, rage against the dying of the light.

And you, my father, there on the sad height,
Curse, bless me now with your fierce tears, I pray.
Do not go gentle into that good night.
Rage, rage against the dying of the light.

1 comment:

  1. Jeff-it comforts me to hear that you are still doing what you're doing with the energy you are fueled by anger. I'd say I operate on an octane blend of about 80% anger, 10% hope and 10% compassion for the folks getting fucked and a desire to stand with them. It seems to me that the majority of folks who burn out are the ones who lose hope. Luckily I'm a cynic and never had much to begin with.

    As for the strike idea, its possible in California as both sides are allowed to disqualify one judge in a county without without really giving a reason. The DAs use it more effectively and have buried "defense friendly" judges in civil or probate when they dared disagree. Defense attorneys, as you well know, don't take direction well and often don't agree on much, so even with the worst judge in the county, there's still enough masochists willing to bring their clients there for slaughter that we will never succeed in rendering a judge impotent.

    On the other hand, California also allows either side to remove a judge for cause when actual prejudice can be shown. If there was a systematic cataloging of a judge's offenses and transgressions, we could at least cause a great stir if we were to begin routinely filing these kind of challenges against a judge as they require a hearing before a judge from another county on the claim of prejudice. Never going to happen, but, you can hope.