For Your Own Good - UPDATE

Perhaps they meant well.

But the road to hell is, you'll recall, paved with good intentions.

And seriously.  I mean, I want to put this as gently as I can.

WHAT THE FUCK WERE THEY THINKING?  AND STILL THINKING?  AND DOUBLING DOWN AND MAKING IT WORSE?

OK, I'm better now.

It's sort of about this guy.

He's Raphael Holiday.  And he was murdered by the people of the Lone Star State last night.  That's not exactly shocking.  Texas had, after all, murdered 530 people before last night, way more than any of the other states. And Holiday was convicted of a pretty ugly crime.  Brandi Grissom for the Dallas Morning News.

Holiday was convicted of intentionally setting fire to his wife’s home near College Station in September 2000, killing her three little girls. He forced the children’s grandmother to douse the home in gasoline. After igniting the fumes, Holiday watched from outside as flames engulfed the couch where authorities later found the corpses of 7-year-old Tierra Lynch, 5-year-old Jasmine DuPaul and 1-year-old Justice Holiday huddled together.

That's pretty cold-blooded. And it's Texas.  So. . . .

Except that's not the story.  Nor is the story that a judge this afternoon stopped the execution and then a panel of appeals judges out it back on track.

No, the story isn't really about Holiday at all.  Nor about his execution.  Instead, the story is about James “Wes” Volberding and Seth Kretzer.  They're the lawyers who ostensibly represented Holiday.  And thereby hangs the tale.

In 2011, Volberding and Kretzer were appointed by a federal judge to represent Holiday.  And they did.  They investigated, they briefed.

They filed a 286-page petition in federal court, alleging dozens of mistakes in Holiday’s case, ranging from assertions that he was intellectually disabled to charges that clemency is so rarely granted in Texas that the process has become meaningless.

And of course they lost.  At the end of June, the berobed ones in D.C. refused to hear the case.

That's usually what happens.  And it ends what you might usefully think of as standard process.  It's the last of the ordinary litigation.  From here on, the lawyer's job is to be creative.  Investigate again. Search for the really unlikely.  Float whatever.  And put together the clemency pitch.  Because, as we say in this business, once in a while pigs do fly.  And because what the hell.  

And mostly because IT'S YOUR CLIENT'S FUCKING LIFE.

Wes Voldering sent Holiday a letter.  Explaining that he and Kretzer were done.  Feel free, he said, to use your resources to find a free lawyer to do emergency last stage work for you. Ain't gonna be us.

The 11/2-page message informed Holiday that his lawyers would not file additional appeals or seek clemency from the governor. Neither option, Volberding wrote, presented a real chance of sparing Holiday’s life.

So Holiday wrote letter after letter to death penalty lawyers begging for help.  Nada. Nothing. Zip. Not, I think, because they were uncaring or unwilling but because what he was asking was simply more than they could take on.  Because no matter how dedicated one is, there are still only 168 hours in a week.

Holiday wrote the federal court asking to have Voldering and Kretzer removed and new counsel appointed.  Which his lawyers, who you'll recall had decided not to pursue any more relief for him, opposed.  They weren't cold hearted.  The "political realities" were what they are.  

The two contend they are exercising professional judgment and doing what’s best for their client.
“We decided that it was inappropriate to file [a petition for clemency] and give false hope to a poor man on death row expecting clemency that we knew was never going to come,” Volberding said in a telephone interview.

They wouldn't want Holiday to have false hope.  It was, after all, for his own good.  To help him go gentle into that good night.  

Gretchen Sween, appellate lawyer but not a death penalty lawyer jumped in to help Holiday.  Not to file new appeals or a clemency petition.  She was, she said, not competent to do that.  But to help him get new counsel.  No, said the courts.  No, no, no.  And don't come back.

Voldering and Kretzer told Sween to stay the hell away from their client.  But grudgingly filed a clemency petition in which they laid out just how horrible Holiday's crime was.  And got his execution date wrong.

Sween called it a sham.  The courts didn't care.

Last night, as I said, Holiday was killed.

There are some bottom lines to this business.  One is that while lawyers choose the tactics, the clients choose the ends.  We don't get to decide what's in our client's basic interest if it isn't what he wants. We can decide not to take a case, but once we've signed on, once we've taken the appointment, unless it's specifically limited in scope, we don't get to just walk away.  And we especially don't get to say, Well, I know you want me to do whatever might save your life, but you'll be happier not having your hopes dashed yet again. 

There's room to argue about how we do what we do.  There's really no room to argue about whether we do it. 

Raphael Holiday. R.I.P. 

UPDATE: See Scott Greenfield, Raphael Holiday's False Hope

Who We Are and What We Do: Part The God Knows How Many It's Been Now

Here we go again.

Nobody's said it better than Harry Truman, assuming he's the one who said it.

If you can't stand the heat, get out of the kitchen.

The subject (and yeah, I'm getting in at the end of the day rather than the beginning but there's this thing about actually getting work done that comes before sitting down for a rant at the keyboard) is David Aylor.  You know, this guy.

He's the kid who agreed to defend Michael Slager, the cop who shot and killed Walter Scott the other day.  Which just makes sense.  I mean, he's the best.  Says so right there.

And when you're a cop who just went and shot a guy in the back while he was running away from you, and then made up a bullshit story and planted evidence to try to back it up, well, you don't just want any old shyster in your corner.  You want David Aylor, who voters picked as 

And by god, he was in Slager's corner.  Andrew Knapp for The Post and Courier.

A North Charleston police officer felt threatened last weekend when the driver he had stopped for a broken brake light tried to overpower him and take his Taser.
That’s why Patrolman 1st Class Michael Thomas Slager, a former Coast Guardsman, fatally shot the man, the officer’s attorney said Monday.
Slager thinks he properly followed all procedures and policies before resorting to deadly force, lawyer David Aylor said in a statement.
“This is a very tragic event for all of the families,” Aylor said. “I believe once the community hears all the facts of this shooting, they’ll have a better understanding of the circumstances surrounding this investigation."

In his corner, that is, until he wasn't.  From Aylor's website (fonts changed because I can't copy and shrink the original and what I get if I just copy overwhelms my blog and looks stupid).

Aylor No Longer Represents North Charleston Police Officer
APRIL 7, 2015

FOR IMMEDIATE RELEASE​​​​ Contact: David Aylor
​​​​​​​​​​ 843-577-5530
​​​​​​​
Attorney David Aylor Issues Statement:
Aylor No Longer Represents North Charleston Police Officer
Charleston, South Carolina – April 7, 2015 – Attorney David Aylor today issued the following statement regarding North Charleston Police Officer Michael Slager, the police officer involved with Saturday’s shooting.
“Today, I withdrew my representation of Michael Slager. This is a terrible tragedy that has impacted our community.”

Others have been writing about Aylor's lust for press attention.  And really, you do have to wonder about the press release.  

Were all those reporters lining up because the interesting thing about the case that it was Aylor who was the lawyer?  It's an extraordinary level or narcissism.  Which perhaps explains why he then felt the need to do an interview with the Daily Beast where he explained 

I can't specifically state what is the reason why or what isn't the reason why I'm no longer his lawyer. All I can say is that the same day of the discovery of the video that was disclosed publicly, I withdrew as counsel immediately. Whatever factors people want to take from that and conclusions they want to make, they have the right to do that. But I can't confirm from an attorney-client standpoint what the reason is.

You know, the video that showed that that the "better understanding of the circumstances" wasn't going to do Slager much good.

OK, yeah he essentially rolled on his client.

Yeah, he violated attorney-client privilege in substance if not in form while denying that he was doing that.

Yeah, he made an ass of himself in public, but that's what comes from media whoring when there's nothing to back it up besides being

And yeah it looks like shit, but they do say there's no such thing as bad publicity (though that's what convinced Rakofsky to sue the internet and it doesn't seem to have turned out too well for him - but I digress).

But see, here's the other thing.  Clients can be a pain.  They don't want to pay their bills.  They want their hands held.  They want their phone calls returned at their convenience.  They want not just loyalty and vigorous and competent and zealous representation.  They want to win.  And they want us to guarantee it and then deliver.    And do it their way - however ill-advised that way may be.

Sometimes the client fires the lawyer.  Sometimes the lawyer fires the client. 

But we're talking criminal defense here, and that means some possibility that the client may be (how can I put this delicately? Right, got it)

A FUCKING CRIMINAL

And he was surprised?  Or was he surprised the way Slager was?  Surprised that there's actual evidence showing that Slager was lying and planting evidence and actually did shoot a guy in the back while he was running away and posing no threat to anyone?

Because he figured he'd get a win 'cause juries always believe the cops when they make up bullshit about how they had to kill.  And then, suddenly, it looked like he might go down in flames.

And since it was never about Slager but always about Aylor - before, during, and after.  'Cause remember

You know, it's even possible that in the courtroom Aylor is the best lawyer in Charleston.  Really, it's possible.  He may have an extraordinary rapport with juries.  He may be a prodigy of cross-examination.  He may have a photographic memory. And he has, if his website is to be believed (hey, it might be true) a "legal team" with another lawyer, a maybe soon-to-be lawyer, a bunch of investigators, an office manager who breeds cats, dogs, and thoroughbreds in her spare time, even a goddamned accident reconstructionist.  He's been on Fox News and Dateline and in the New York Post.*  Oh, and he's a prosecutor on the side.

Damn, no wonder he's the best.

But there's that thing about it being about the clients not about us.  Always.  And there's that other thing about when the going gets tough.

And really, if you're going to do criminal defense, you might as well be OK with the idea that sometimes you'll be representing criminals.

The thing is, this isn't about Aylor.  He's just an instance.  Like Lot's wife, "both caution and example."**

AND SEE: Scott Greenfield and Eric Turkewitz

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

*Hell, I was once interviewed by the BBC and I've been in the New York Times and on NPR and on TV and radio and in newspapers all across Ohio.  But the Post?  Wow.

** In John Bunyan's great, albeit little-read allegory The Pilgrim's Progress, Hopeful and Christian come upon a pillar of salt which they recognize as the pillar of salt into which god turned Lot's wife.  Then:

Christian: Let us take notice of what we see here, for our help from time to come. This woman escaped one judgment, for she fell not by the destruction of Sodom; yet she was destroyed by another, as we see: she is turned into a pillar of salt.
Hopeful: True, and she may be to us both caution and example; caution, that we should shun her sin; or a sign of what judgment will overtake such as shall not be prevented by this caution: so Korah, Dathan, and Abiram, with the two hundred and fifty men that perished in their sin, did also become a sign or example to others to beware.

Yea, though I walk through the valley of the shadow of death

A law student, a legal intern in our office who's licensed to argue under direct supervision of a lawyer who sits at counsel table with him, was arguing his first case in the court of appeals.  The trial court had suppressed evidence.  The state appealed.  The student/intern was defending the trial court's decision.  I went to watch and provide moral support.

He did a fine job, and he had great facts to work with.  He'll probably win though there are no guarantees in this business.

I'll be happy if he wins, of course.  It's the right outcome legally.  It's a victory for our client.  It'll be great for him.  And maybe it'll go some toward getting the cops to knock off an unconstitutional practice.*

But as I told him afterwards, it's generally not a good thing for criminal defense lawyers to win their first case.

Oh, sure it feels good.  And it's certainly good for the clients.  But it teaches a lie.

I am, I hope, a far better lawyer than I was when I took my first case.  I know more.  I have a better feel for how to present arguments, how to ask questions, how to answer them.  I'm better able to make the stage of the courtroom my stage.

I'm also, and this is getting toward my point, more used to the battering.

Those of you who are in this business, those of you who observe it, those of you who read this blog, you know that being right is the least of it.  You know that proof is what juries believe, not necessarily what happened.  You know that the deck is stacked, the cards marked.  You know that when the facts are ugly the Law (that uppercase thing defined by case law and rules and statutes and the shit they teach in law school and that law professors actually do believe in and judges pretend to believe in - often pretending to themselves) doesn't count at all. 

We do this business often from our knees.  We cry and beg and genuflect.  And sometimes, of course, we prevail.  The reality, though, is that mostly we don't.  Mostly we get, at best, a loss not as bad as it could have been.  Maybe that's a plea bargain.  Maybe it's a sentence less than the prosecutor wants. Maybe it's a guilty verdict on a lesser-included offense.  Maybe it's . . . .  But of course, sometimes.

Sometimes the drugs get suppressed.  Sometimes the jury says, "Not Guilty."  Sometimes the client goes home, not even on paper.

And sometimes they strap him down on the table and stick needles in his arms and fill him full of shit that's designed to kill him - and almost always does.

It is, as I said to the student/intern, generally not a good thing for criminal defense lawyers to win their first case.  

It's good for the client, of course.  And it's good for the ego.  But it leads to the false expectation that this business is easy, that we can win regularly - as long as we're right or smart or lucky.  Which can make the brutality of day-to-day results harder to bear.  Because really, that shouldn't happen.

No, better to lose up front.  Learn to take a punch.  Because here's the daily truth of what we do.

The Charge of the Light Brigade

BY ALFRED, LORD TENNYSON

I

Half a league, half a league,

Half a league onward,

All in the valley of Death

   Rode the six hundred.

“Forward, the Light Brigade!

Charge for the guns!” he said.

Into the valley of Death

   Rode the six hundred.

II

“Forward, the Light Brigade!”

Was there a man dismayed?

Not though the soldier knew

   Someone had blundered.

   Theirs not to make reply,

   Theirs not to reason why,

   Theirs but to do and die.

   Into the valley of Death

   Rode the six hundred.

III

Cannon to right of them,

Cannon to left of them,

Cannon in front of them

   Volleyed and thundered;

Stormed at with shot and shell,

Boldly they rode and well,

Into the jaws of Death,

Into the mouth of hell

   Rode the six hundred.

IV

Flashed all their sabres bare,

Flashed as they turned in air

Sabring the gunners there,

Charging an army, while

   All the world wondered.

Plunged in the battery-smoke

Right through the line they broke;

Cossack and Russian

Reeled from the sabre stroke

   Shattered and sundered.

Then they rode back, but not

   Not the six hundred.

V

Cannon to right of them,

Cannon to left of them,

Cannon behind them

   Volleyed and thundered;

Stormed at with shot and shell,

While horse and hero fell.

They that had fought so well

Came through the jaws of Death,

Back from the mouth of hell,

All that was left of them,

   Left of six hundred.

VI

When can their glory fade?

O the wild charge they made!

   All the world wondered.

Honour the charge they made!

Honour the Light Brigade,

   Noble six hundred!

-------------
*I'm not holding my breath on that one, this being Ohio and all.  See State v. Hoffman and Orin Kerr's note on it.

Effective Assistance? Fuck You.

Allow me to vent.

50 years ago, in Gideon v. Wainwright, the Supremes said that the 6th Amendment guarantees that a person charged with a crime is guaranteed the services of an attorney for his defense.  29 years ago, in Strickland v. Washington, the Supremes had a good laugh over what they'd done.

What Strickland says is that the 6th Amendment doesn't just entitle people charged with crimes to the assistance of counsel.  It entitles them to the effective assistance of counsel.  Which sounds pretty good.

Hey! I'm not just entitled to a lawyer.  I'm entitled to an effective lawyer.  You know, one who's gonna defend me, do it right.  That's cool, man.

And it is, indeed, the law.  That's what you're entitled to if you're charged with a crime.  You have a right to that.  From that right, it follows that if you don't have that sort of lawyer, you must have a remedy.  Back in 1803, the great Chief Justice John Marshall explained in Marbury v. Madison.

The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation, if the laws furnish no remedy for the violation of a vested legal right.

So, of course, if you're lawyer proves to be an incompetent bozo, you get a new trial. I mean, that's the whole idea.  

Right?

Wrong.

Because, you see, ours may have been

emphatically termed a government of laws, and not of men

but them's just words.  And that measure?  So 1800s.  Simply, we do not, in Marshall's own formulation,

deserve this high appellation.

You have to go back to Strickland where the Court actually explained about that effective assistance of counsel thing.  It works this way.  A person who's been convicted of a crime can complain on appeal that she was denied the effective assistance of counsel, that she didn't get what she's entitled to.  The court will (in theory at least) examine the claim.  

The problem is what happens.

The lawyer doesn't have to have been good, doesn't even have to have been average.  Less than average, way less than average, is "effective."  The test is whether the lawyer's actions or inaction fall below an "objective standard of reasonableness."  And that's determined by whether there's some rational reason, some barely rational reason for what the lawyer did.

Actually, that's not even right.  The test isn't whether the lawyer had an at least barely rational reason.  It's whether the court, with an assist from the prosecutor, can think of one the lawyer might have had.  But let's say it can't.  Then the poor shlub with the actually brain dead lawyer gets a new trial.  Right?

Well, maybe if the lawyer was technically brain dead.  A true flat line on the EEG.  After all, a majority of the judges on the 5th Circuit Court of Appeals held in Burdine v. Johnson (reversing a decision made by a three-judge panel of that court) that when a lawyer sleeps (that's literally, with snoring) through major portions of his client's death penalty trial, the client did not have effective assistance of counsel and is entitled to a new trial.  (Of course, some of the judges disagreed, which really tells you all you need to know.)

But the basic rule is that you're only entitled to that even barely functioning lawyer (judges in Burdine observed that courts haven't given new trials as a matter of course to lawyers who were drug addicts at the time of their clients trials, or who were drunk, or who were suffering psychotic breakdowns or from Alzheimers) in theory.  Because if you ended up getting less than that, well, gee, too bad.  Unless you can show that if the lawyer was sentient you'd have done better.

You know, based on the old adage that if there's some reason to think you might be guilty, nothing else matters.  I mean, what's the bitchin' about?  So you had a lawyer who wasn't quite brain dead and who really did nothing for you?  You might be guilty and we can't just give new trials to everyone whose lawyer makes the chair I'm sitting on look like a genius. 

'Cause we said so.

Gideon be damned.

Law of Rule.

I'm done venting.  Thanks.

Who We Are and What We Do - Another Entry in the Series

This morning, Scott Greenfield wrote about losing.  

You put your heart and soul into it.  And your intellect.  You consider, think it out, plot and plan.  You work out every eventuality including the ones you can't imagine and can't prepare for.  You convince yourself.  The adrenaline pumps.  The time is now.

And then the jury comes back.  Or the judge.  Or the panel of judges.

And then you reconsider and reevaluate.  You second guess and then third.

I could have done this differently.
I should have done this differently.
If only I were better.

It's what you do when you lose.  Which you will much of the time.  You do it when you win, too.
It's called "practice" for a reason.

Scott wrote about a friend who lost.

Take the night and feel bad about it, I said, and tomorrow put it out of your head. Tomorrow, you go back to the trenches and take up the next battle, and you can’t do that with doubts of the day before. Wallow for a while, but then it’s over. There is more work to do, and as much as it sucks to be on the losing end of a trial, the next guy needs you to fight for him as well, and nobody can mount the good fight licking his wounds from the last fight. 
Criminal defense lawyers don’t have the luxury of wallowing too long. There’s too much work to be done. My friend was back in court the next morning, thinking only of the defendant standing next to him and how he was going to kick the prosecution’s butt this time.

There are, though, and this is where I wanted to take this, there are those cases that haunt.  

Anyone who's been doing this stuff for a while knows that there's no sure thing.  

We've all won cases we could not imagine ever winning.  The facts were awful and the evidence worse.  The law was terrible.  The judge was pure evil.  The jury dripped venom.  The client sneered and strutted and snorted and pissed off everyone.  There was no way.   And yet we win.   Doesn't happen often, but it happens.

And we lose cases that we simply should not lose.  The client is innocent.  The video shows he was chatting with the Pope at the time of the shooting.  The prosecutor is a fool and a lout.  The cops get caught in their lies.  The snitch won't testify.  The judge smiles and nods.  The jury is practically sending love notes your way.  Your client goes up the river for a decade or more.

It's those cases.  Where you know, you just know, that you should have won.  That you had to win.  That somehow, someway.  If only you'd stayed up one more hour, worked a little harder.

If only you'd been a better lawyer.

That night you don't drink the good stuff.  The rotgut is all you deserve.  You may turn on the TV or open the book, but you don't watch or read.  You hug the spouse and kids with a bit of extra force though.  And you sit and glower and stare into space.  And beat yourself up.  Because you could have and should have.  Mostly, you should have been a better lawyer.

And then, because it's what you do.  If you're really cut out for this business, because it's who you are.
You get up the next morning and head for the office or the courtroom and do it again.  And, like Scott's friend, you go after it again.

But there's a scab.  And over the years you can't help, from time to time, picking at it.  While that client sits in the steel cage.  

You don't dwell on all the cases you lost.  You can't.  No more than you can forever savor all the individual victories.  But there are those few.

They gnaw at you.  They fester.  The number of them, small but real, growing over the years.  Those cases never go away.  You remember every detail. 

If only I'd said it this way.
If I'd asked that question. Or if I hadn't.
If I had it to do over again now.
If only I was a better lawyer.

At some level, maybe you know it's not true.  He couldn't have been saved.  The video with the Pope looked faked and maybe was.  Maybe he did it after all.  But still.

And yet, in the morning, one more time.

I spent a few days last week with a couple of hundred capital defense lawyers learning how to do it better.  Ones who come in at the end.  After the defendant's been sentenced to die.  After the court of appeals or the supreme court or whoever said, "Yep.  Kill him."  After more investigation and more work.  And more failure.

These are folks, the more experienced among them, who've lost clients to the chair or the chamber or the needle.  Along with the lectures and the workshops were the laughs and the war stories and the fear and the pain.

And the very crowded bar.

Because we're all, those of us who've been at this a while, haunted.  And yet we get up the next day.

Because that's what we do.  And who we are.

I Can Defend these People

Jean Luc Godard, the French filmmaker, famously said (famously if you move in those circles, anyway) that 

Film is truth at 24 frames a second.

Which means, roughly, that while the camera records what's before it, there are the things in the interstices, in the moments between the frames, that it doesn't show.  (The camera doesn't actually film motion after all, it takes a series of still pictures [typically 24 a second] which a defect in our vision leads us to see as motion when they are shown rapidly enough.)  Its truth is always and necessarily incomplete.  And that means that the filmmaker must choose.

So here's a question:  Which truth is it that Dawn Porter, herself an attorney, is trying to tell in Gideon's Army a documentary film that won the Editing Award at Sundance this year and premiered on HBO Monday night?*

• That public defenders work hard for their clients?
• That public defenders are underresourced?
• That public defenders care?
• That public defender burnout is real but a good pep talk will get them over it and all will be right and good again?
• That Jon Rapping is something of a hero?
• That the PDs on the line are black while the supervisors and trainers and the folks who fund them are while?
• That we really do need a public defender system, and by god, we've got one we can be proud of?
• That the system works because if you're truly innocent, you won't be convicted?

Really, it's all of them.  Each at 24 frames a second or whatever the current technological equivalent.  And that's a problem.

Gideon's Army tries to tell the story of public defenders and public defense and how it works and why it's desperately needed and why it's inspiring and why it's desperate and why the PDs are impassioned and committed and why they burn out and how Jon Rapping and his organization, Gideon's Promise, trains them and keeps them going and howsometimes you eat the bear but sometimes the bear eats you and when it's the former it's a high but when it's the latter all you can do is slam the lid on your briefcase and order a double (which, now that I think about it, we never see anyone do).

To do all that, the film focuses on two Georgia public defenders, Travis Williams and Brandy Alexander (and still she doesn't drink!), and briefly and for no apparent reason, Mississippi PD June Hardwick. (Was there a whole focus on her that got left on the cutting room floor?)  

Brandy gets conflicted.  What do you do if you're she and the  man who raped his stepdaughter doesn't try to explain how he didn't really but tells her he's proud of having done it?  And what about the client whos let out word he has plans to kill her?  Rapping's therapy sessions and pep talks (we never see his actual trainings) keep her going.  But she envies Travis who never waivers.

Travis is the heroic type.  Single minded.  Hard working.  Passionate about the work.  His response to the proud rapist story?  When you're not charged up about the client, you get charged up about defending.  

I can defend these people.

Of course, that's easier said than done when his maybe sort of innocent client's pretty good case for trial collapses after his best friend since they were toddlers rolls on him.

These folks struggle with low pay and high debt and case loads that have them working late.  They're not mostly saving the world, though they make a difference in the lives of their clients.  But in the end, mostly, as one of them says, 

It's all about lessening the penalty; that's what we do.

So here we are.  Gideon's Army is fragmented, a little too scattered.  It's just a bit too television (everything in the offices and the courtooms is remarkably neat and clean - but maybe that's just a southern thing).

There's none of the desperation.  There's a reference to a PD who allegedly sold a client out.  There's reference to how pleas are coerced simply as a way for people who can't make bond to get out of jail.  There's underpay, but little in the way of real overwork.  And there isn't the drinking (as I've said) and the fist-bumps in the hallway.  

Brandy pleads three of her clients in rote identical moments.  Then asks for permission to leave the courtroom.  Travis walks away in silence while a client is led off in cuffs.  How much is that the day-to-day?  We don't know.

The thing is, it's easy to carp from where I sit.  It's not that I'm now a PD.  It's that I know from daily work over the years how the system works and how while by and large PDs are (I've said this before) among the most talented, committed, hardest working lawyers out there (that "by and large" is important, of course, since some PDs are total incompetents, lazy, long since burned out).  But they're regularly underpaid, underresourced, undermined by a corrupt, dysfunctional system.

But I'm the screener (and thanks to the good folks who sent me a screening copy of the film, by the way) and the critic and the criminal defense lawyer.  Gideon's Army isn't for me.  It's for the HBO audience that doesn't know, that doesn't have a feel for this, that isn't in the trenches with these folks and the men who proudly admit they did it and then ask how much it'll cost to bribe the judge.  And who don't know that the lawyer (yes, the lawyer, criminal defense lawyer, public defender, whoever, the lawyer) answers, 

Go fuck yourself.  That's not what I do.

Gideon's Army is for them.  And for them it's terrific.  A look into the system that they don't see in TV shows about lawyers or about criminals and with real lawyers with real clients and real issues (of substance and process and prejudice and evidentiary rulings and whack ass judges and recalcitrant prosecutors and the like).  And although Porter doesn't show it as much as I might like (or as much as Greenfield or Gideon would) there's enough there for Rapping's words Brandy to ring true.

If you're trying to rescue people from Hell, you've got to go to Hell to do it.

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*Future showings July 7, 9, 13, and 19 (check your listings for times).

Fingers in the Dike

I've been reading Naomi Wolf's 2007 screed The End of America: Letter of Warning to a Young Patriot in which she details "ten classic pressures" that are essential to and lead inevitably toward dictatorship if not promptly stopped.  If you let them go, she says, dictatorship is inevitable and unstoppable. 

Item by item, she reports on how various dictatorships (with special focus on Mussolini's Italy, Hitler's Germany, and Stalin's Soviet Union) adopted and used each of those pressures to cow any opposition, secure absolute control over the state, and destroy individual freedom.

Each of the steps is a chapter title.

1. Invoke an External and Internal Threat
2. Establish Secret Prisons
3. Develop a Paramilitary Force
4. Surveil Ordinary Citizens
5. Infiltrate Citizens' Groups
6. Arbitrarily Detain and Release Citizens
7. Target Key Individuals
8. Restrict the Press
9. Cast Criticism as "Espionage" and Dissent as "Treason"
10. Subvert the Rule of Law

Wolf sees and describes the Bush administration taking steps to adopt each of these.  The result is what she calls a "fascist shift." It's not fascism yet, she says, but it will be if we don't stop it. Soon.

All of us -- Republicans, Democrats, Independents, American citizens -- have little time to repeal the laws and roll back the forces that can bring about the end of the American system we have inherited from the Founders -- a system that has protected our freedom for over 200 years.
I have written this warning because our country . . . is in the process of being altered forever.

She blames all this on the Bush administration and sees the evil in Karl Rove's stated goal of a "permanent Republican majority." And she's concerned that the then-newly elected Democratic-controlled Congress won't undo all the damage.

OK, that was 2007.  Now we know.  The Democrats in Congress didn't fix it when they were in power, and while Obama's administration has eased some of it (apparently, though who really knows, we no longer waterboard ourselves, preferring to outsource direct torture through rendition), it's been more than happy to pursue an anti-civil-liberties agenda.  (As, by the way, did the Clinton administration.  It's folly to believe that any President - or any Congress - will embrace most of the Bill of Rights except, perhaps as a rhetorical device.)

Wolf, again, wrote that in 2007.  And with a built in hatred of the Bush administration.  Consider torture. The experts say it doesn't work.  So he asks this question.

Because torturing prisoners is counterproductive if the goal is securing the Homeland, and because it makes us pariahs in the eyes of the rest of the world, then what could be some genuine reasons why this is so important to this White House?

The implicit answer, of course, is that Bush and company were using the torture of the prisoners at Guantanamo to scare the rest of us. What we do to them, we can do to you. Maybe. But I doubt it. Wolf's question, after all, assumes that those driving the torturing, and those who did it, acted with a canniness I don't see any indication they had. And it assumes that they knew - and actually believed - torture to be counterproductive.

More likely, they actually thought it worked. That's certainly the explanation they offered and the defense they continue to offer.

Torturing those guys kept us safe.  No longer torturing them endangers us.

Besides, look at the pictures from Abu Ghraib. The torturers were having fun. Shits and grins, as they say.

Ultimately, motivation probably doesn't matter. If you end up with a police state, it doesn't really matter much whether you got there by design or by accident.  If we're on the path, regardless of whether the road is carefully paved, we want to get off.

Rick Horowitz, looking more at his own practice and at how the police and courts treat his clients.makes essentially the same point right now. (I'm leaving in his links but deleting his footnote.)

To argue that we should never compare what’s happening in America today to what happened in Germany in the period leading up to the Nazi disaster is to risk ignoring the warning signs should it ever occur again. And don’t think it can’t happen here. As I’ve noted more than once previously (yes, I’m going to quote myself), pre-Nazi Germany wasn’t all that different from the United States today:

As alluded to above, even Nazi Germany didn’t spring fully-armored from the brow of Zeus. There really was a time in Germany, before the reign of the Nazis, in which there were constitutionally-protected freedoms. As Ingo Müller has pointed out, the German legal system was brought down not overnight, but over a period of time, by “the doctrine of ‘national emergency.’”

But, secondly, I’m not even trying to argue here that the police are Nazis.
Not yet, anyway.

And he's about had it.

One reason I haven’t been blogging as much lately is I’m too angry. I’d be calling for a bloodbath: shoot all governmental authorities on sight, I’d be saying. To avoid doing that, I’ve just stopped writing much of anything.

It's all too easy to get to this point.  Follow Radley Balko's nearly daily links to stories of puppycide.  (Here, for instance.)  Look at Scott Greenfield's But for the Video series. (Here, for instance.)  Read . . . Aw, hell, there's too much to point to.

Wolf is right.  So is Horowitz.  We're edging down the path. The steps (they both recognize this) are incremental.  The thing is, enough small steps add up.

Here's the thing.  I can't change the system.  Neither can you.

And, frankly, most people don't really give a damn.  And can't be made to.

We can do it collectively, but frankly none of us with our blogs - not even all of us with our blogs - have the clout.

So we can speak up, each in our own way, and we should.

And we can band together as we can.  There is strength in institutional numbers.  But there are limits, too.

Beyond that, I'm a criminal defense lawyer. What I do is work for my clients.  This one today, that one tomorrow. Greenfield:

The criminal defense lawyers who hit the wall of frustration and break through are the ones who keep the system as honest as it can ever be. It may not be much, but without them, there is no one to impede the machinery of justice. We've all been there. We just keep fighting. Sometimes it help to make a joke of it just to keep our sanity. Sometimes a stiff drink helps. A vacation is always a good idea. Whatever it takes, break through the wall. Welcome to the other side.

Because, really, it's what we do.  One damn case at a time.

 

Certainly. Though Perhaps Not.

I knew a guy, graduated at the top of his class at a prestigious law school.  Then went to med school and became a neurosurgeon.  He said the UCC drove him to medical school.

For the uninitiated, the UCC is the Uniform Commercial Code.  It's the set of statutes (that's the code part) governing commercial transactions (buying and selling widgets; delivering them on time or not; dealing with the bounced check; leases; secured loans, that kind of thing) that with minor variations have been adopted by all the states (hence uniform).  I know people who find the UCC fascinating and get erections [OK, maybe not] examining the interaction between, say, § 4-107 and § 8-203. [Disclaimer: I don't know shit about the UCC (though I did pass the class in law school) and neither know nor care whether those sections have any relationship to one another or could possibly interact.  This is not legal advice and I am not your lawyer.]

The Anglo-American Legal Tradition, as it's referred to, developed through the so-called "common law."  In the early days of the Anglo part, before the Anglos had any Americans to hyphenate, the law was not codified. There were laws, of course, but they developed by accretion rather than codification.  And judges figured out how to apply the written laws (and the vast store of unwritten ones.  They explained their reasoning which became precedent.  The Law (uppercase here) developed through analysis and reanalysis and reliance on precedent and, as I've explained before, argument from analogy.

It's slow, this legal evolution. And it proceeds by fits and starts. Nor is it certain that what evolves is better than what came before.  There's a reason that Law (uppercase again) is an essentially conservative profession, though it certainly doesn't follow that lawyers are essentially a conservative lot, though a great many, perhaps most, clearly are. 

These days, at least in the American part of the Anglo-hyphenate, codification is king.  The complaints of activist judges and justices (complaints which are often no more than bitching about rulings one does not like) are really complaints about the common law.* No need to figure it out, no need actually to consider, deem, or judge.  The Code is all.  Lifeless. Dull. A damn shame.

In fact, it doesn't work that way. Nothing does.

In reply to a recent comment on a post from early last year, I wrote this.

Irving Younger said it far better than I can:

"The best of all guides to thinking about anything is Oliver Cromwell's adjuration to the General Assembly of the Church of Scotland, 'I beseech you, in the bowels of Christ, think it possible that you may be mistaken.' Life and the affairs of the living are so tangled, the world not only stranger than we imagine but stranger than we can imagine, that all questions are conundrums, no answers 'correct.' Is it certain that parallel lines never meet? No. Does water freeze at thirty-two degrees Fahrenheit? Only probably. Shall I marry? Who can say.

"And yet the world's work must be done. One Oblomov is enough. Thus we learn a conventional certitude, acting as though all were light by blinking the shadow. A simple proof demonstrates that parallel lines meet, but, on the assumption that they do not, the architect builds the skyscraper. Despite extensive knowledge of statistical mechanics, the engineer designs the refrigerator to maintain a constant temperature of thirty-one degrees. 'Le coeur a ses raisons que la raison ne connait point,' and families are raised."

The correct answer to every legal question is "It depends." The correct answer to every significant question of philosophy and perspective is "Perhaps."**

Ferdinand von Schirach's uncle was the presiding judge of German court handling capital offenses. He was known as

a good judge, humane, an upright man with a sense of justice.

He told stories from those cases to Ferdinand who explains in "Guilt," the preface to his absolutely stunning collection of short stories Crime: Stories,

They always began with him saying: "Most things are complicated, and guilt always presents a bit of a problem."

"One day," Ferdinand writes of his uncle, 

he went into the woods, put the double-barreled shotgun in his mouth, and pulled the trigger.  He was wearing a black rollneck sweater; he'd hung his jacket on a branch. His head exploded. I saw the photos a long time later. He left a letter for his best friend, in which he wrote that he'd simply had enough. The letter began with the words "Most things are complicated, and guilt always presents a bit of a problem."

"And yet," as I said, Younger wrote,

the world's work must be done.

Ferdinand von Schirach is, himself, a prominent criminal defense lawyer in Germany and his stories, with their understanding and empathy - capacities very different from approval, though too many people don't understand that - reveal both his uncle's understanding and Younger's. The answers to all the relevant questions, he recognizes, is "It depends."

And they reveal, not surprisingly, a deep understanding of what we do.

Defendants and defense lawyers have a curious relationship. A lawyer doesn't always want to know what actually happened. This also has its roots in our code of criminal procedure: If defense counsel knows that his client has killed someone in Berlin, he may not ask for "defense witnesses" to take the stand who would say that the man had been in Munich that day. It's a tightrope walk. In other cases, the lawyer absolutely has to know the truth. Knowledge of the actual circumstances may be the tiny advantage that can protect his client from a guilty verdict. Whether the lawyer thinks his client is innocent is irrelevant. His task is to defend the accused, no more, no less.

That paragraph, from "Summertime," could have been written here were my prose were as elegant as von Shirach's (and if I thought of locations in terms of Berlin and Munich rather than, say, Toledo and Youngstown).

But understanding what we do isn't really the key to what's so powerful about von Schirach's stories. Nor is it the understanding of our clients. It is, instead, that understanding of ambiguity, of uncertainly, and how it infuses not merely our work but out sensibility.  For the criminal defense lawyer, as distinct from the lawyer who happens to do some criminal defense, looks at the world as a place of risk where it's possible to prevail but tricky.

All our lives we dance on a thin layer of ice; it's very cold underneath, and death is quick. The ice won't bear the weight of some people and they fall through. That's the moment that interests me. If we're lucky, it never happens to us and we keep dancing. If we're lucky.

You read von Schirach and come to recognize, as he does, that there are no easy answers ever and that motivation is never clear or unambiguous and that while there may be evil, it's finally impossible all the time accurately to recognize it. And you see that we all are tainted and that dispassion is a mask. To do our work, we glue it on firmly.

Occasionally, it frays around the edges.

I learned of von Schirach from Glen Steinhauer and Adam Liptak in the Times and then from Norm Pattis.  I'm grateful to all three.

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* There are alternative legal systems where the decisions of the courts have no precedential value. Each is wholly independent of what came before. In a particularly extreme and frankly stupid version, that's the essence of a bill offered a couple of years ago by Iowa state representative Jason Schultz (motto: "I know notting"; ooops, that was Sgt Schultz from Hogan's Heroes).  (I wrote about the bill here.) It was referred to the judiciary committee where it was, I am happy to report, gracefully allowed to die.

** The quote is from Younger's untitled "Commentary" in the first issue ever of the Georgetown Journal of Legal Ethics (1987), p. 285.