Archive for the ‘Law’ Category

A Lament

July 15th, 2013

THERE IS NO JUSTICE IN AMERICA

That is how a friend of mine greeted the acquittal of George Zimmerman for the slaying of Trayvon Martin.  All caps.  This is a very level-headed, intelligent, thoughtful man.  And if I, like him, were black, I think I would feel the same way, too.  His cri de coeur expresses the boundless, ever-renewed sense of betrayal to which black citizens of this country are exposed.  Langston Hughes’ poem A Raisin in the Sun is forever relevant.  150 years after the Emancipation Proclamation, 50 years after the March on Selma, 48 years after the Watts Riots, 45 years after cities burned following the assassination of Dr. King, 21 years after the beating of Rodney King and the destruction consequent upon that, 16 years after they tortured Abner Louima with a broomstick in that New York City police station, and so on, and so on – what happens after all these explosions?  What is left, but mortal weariness?

I suppose one way to answer my friend could be that criminal law is only incidentally about justice.  When they teach you about the purposes of criminal law in your first year of law school, they don’t spend a lot of time on “justice” as such.  They talk about deterrence, punishment, retribution. Mainly, then, from the point of view of those who train its practitioners, criminal law is about keeping the lid on.  “Keeping the lid on black people,” my friend would say.  I have no answer to that.  Anyone who knows something about the differential incarceration rates for blacks and for whites in this country, in this state (ANY state), knows there is no answer to that.

But I had to say something.  So, when my friend posted his banner on Facebook, I commented, “It makes me so sad,” without knowing why that seemed to be the most salient thing.  The next evening I talked with my son about it.  He is 21 years old, formidably bright and perceptive, and his thoughts are not blinkered by any form of conventionality.  I said, what do you think of this George Zimmerman thing?  He said, it’s ridiculous.  Kid walks through neighborhood.  Guy with a gun follows kid.  One of them winds up dead.  It’s not the guy with the gun.  Shouldn’t the guy with the gun be held responsible?  The kid didn’t need to die.  Is there any doubt that the guy with the gun caused his death?

I played devil’s advocate.  I said, but Zimmerman’s story, supported by the physical evidence, was that Martin bashed him in the nose hard enough to break it, and then jumped on him and banged his head on the ground.  His busted nose and banged-up head were real.  What about self-defense?  My son stuck to his figurative guns.  Guy beats you up, doesn’t mean you have to  kill him.  Anyway, who was following whom?  Who created this situation?  Who, after all is said and done, wound up dead?

My son said, obviously race has something to do with it, but I don’t think it’s all about race:  Zimmerman’s hispanic.  I said, still playing devil’s advocate, stand them up next to each other and tell me who’s the black guy.  To emphasize my point, I used a different word.  My son granted the point, but I could tell he wasn’t entirely convinced.  There was a different narrative running in his mind.  I can imagine it this way.  Zimmerman is perturbed to see this young black guy in the neighborhood.  He follows him.  It scares Martin.  Out of some combination of anger and fear, he attacks Zimmerman. He busts his stalker in the snoot and bangs his head on the ground.  He’s seventeen years old, he’s seen someone do that in a movie.  Zimmerman, who is basically a coward, thinks he is fighting for his life and shoots him.  The jury that has to digest all this is a group of modern white Americans; people deeply insulated from brutality, who fear it in direct proportion to the distance of their removal.  They all too easily understand that if someone is beating you up, you make him stop by blowing a hole in his chest, if you can.  In the land of the free and the home of the brave, we understand the coward’s way of thinking pretty well.  We have lost the personal, gut-level knowledge that violence – personal violence – comes in degrees, and that you can and should respond proportionately.

I think my son is right.  We’ll never really know what happened in the final minutes of Trayvon Martin’s life, and perhaps those moments of obscurity create enough doubt to prevent a conviction of guilt in the narrow sense of the criminal law.  Clearly the defense did a very skillful job of focusing the trial on that.  I didn’t sit on the jury, and I don’t know enough to judge them.  One thing I learned when I worked as a prosecutor was that it is next to impossible to understand what is really going on inside the courtroom, from outside the courtroom.  Human reality is that dense, and a courtroom with a criminal trial under way is just about the most densely human place on earth, once you dig through all the rules and procedural niceties.  But I know in my heart of hearts that the verdict in this case was ignorant of its context, and without context there is no meaning.  Big guy with gun chases skinny teen through neighborhood.  Teen winds up dead.  What more do you need to know?  It makes me so sad.

A Liberal Profession

March 16th, 2013

Lawyer's Wig (Coprinus comatus)

Having devoted my professional career to the practice of law, I have naturally enough developed a certain ambivalence about the value of the legal profession to society.  The law itself, of course, represents one of the great advances in humanity’s development; law as such is a fairly unambiguous good, at least until we collectively develop a sufficient sense of emapthy for and responsibility to each other that we can safely dispense with the use of rules to govern our conduct.  But the legal profession is another thing.  I recently found my doubts about it crystallized in a speech by Stephen Maturin, the fictional nineteenth century physician at the center, with his friend Captain Jack Aubrey, of Patrick O’Brian’s marvelous series of novels.  In The Reverse of the Medal, Maturin tries to shake Jack’s naive faith in the infallibility of the English legal system:

‘As for Gibbon, now’, said Stephen when they were settled by the fire again, ‘I do remember the first lines.  They ran “It is dangerous to entrust the conduct of nations to men who have learned from their profession to consider reason as the instrument of dispute, and to interpret the law according to the dictates of private interest; and the mischief has been felt, even in countries where the practice of the bar may deserve to be considered as a liberal occupation.”  He thought – and he was a very intelligent man, of prodigious reading – that the fall of the Empire was caused at least in part by the prevalence of lawyers.  Men who are accustomed over a long series of years to supposing that whatever can somehow be squared with the law is right – or if not right then allowable – are not useful members of society; and when they reach positions of power in the state they are noxious.  They are people for whom ethics can be summed up by the collected statutes.  Tully, for example, thought himself a good man, though he openly boasted of having deceived the jury in the case of Cluentius; and he was quite as willing to defend Catiline in the first place as he was to attack him in the second.  It is all of a piece throughout; they are men who tend to resign their own conscience to another’s keeping, or to disregard it entirely.  To the question “What are your sentiments when you are asked to defend a man you know to be guilty?” many will reply “I do not know him to be guilty until the judge, who has heard both sides, states that he is guilty.”  This miserable sophistry, which disregards not only epistemology but also the intuitive perception that informs all daily intercourse, is sometimes merely formular, yet I have known men who have so prostituted their intelligence that they believe it.’

Arraignment Day

May 5th, 2012

See him slouch
by the rail, there,
the Assistant State’s Attorney,
head like a doughy balloon

loosely tethered
by his tie of bright autumn leaves.
Facing us,
he leans against the rail,

arms braced behind him
as if to keep from toppling
into that void
where later the judge will float

above the court officers;
he describes the process
to us in our motley
as if we should be bored,

rushing through it,
avoiding eye contact,
almost visibly fearful.
I, his colleague,

later will be admonished
not to sully the dignity
of the State we represent
by standing among the summonsed

and the cheap suits
assigned to defend them.
I wait to walk beyond the rail
to the accuser’s desk

until she whom I accuse is called,
then silently attend the litany
of accusation and plea,
of “waiver” of “the rules,”

until it is my moment
to demand “the usual conditions”
for her freedom (her lawyer
explains them) and then add “and

a witness having been threatened”
(suddenly only air-conditioning
hums in the room) “special condition 14”
(the judge explains it.)

Are you a person or an IPO?

January 23rd, 2011

Vermont Senator Virginia Lyons

Ever since the idiots on the United States Supreme Court who cannot tell the difference between a baby and a stock certificate, that is, “Justices” Kennedy, Roberts, Alito, Scalia, and Thomas, decided that corporations have the same rights to speech under the First Amendment as individual human beings, thus removing any possible legal impediment to an inundation of corporate political campaign spending, there has been a howling need to amend the Constitution to repair the damage.  Now the Vermont legislature is taking a step to do just that.  Readers of this blog who are Vermont residents, please call your Senators and Representatives and urge them to support J.R.S. 11.  Readers from other states, please ask your legislators to emulate Vermont and pass something like the following as soon as possible.

J.R.S. 11. Joint resolution urging the United States Congress to propose an amendment to the United States Constitution for the states’ consideration which provides that corporations are not persons under the laws of the United States or any of its jurisdictional subdivisions.
Whereas, free and fair elections are essential to American democracy and effective self-governance, and

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Pakistan, bastion of democracy

November 14th, 2010

With the release of the indomitable Burmese freedom fighter Aung San Suu Kyi from house arrest, one’s thoughts naturally turn to the health of our own democracy.  (Yes, it really is all about us.)  Much too big a subject to venture an opinion on, as the veterinarian said about the whale.  However, one might observe symptoms.  I’ve been thinking about Justice Stephen Breyer’s recent remarks concerning the Supreme Court’s decision in Bush v. Gore, which resulted in curtailment of the 2000 presidential election and George W.’s disastrous tenancy of the White House.  Breyer implausibly denies that it was a politically motivated decision, and congratulates the country on having knuckled under to it.  The irony of purporting to preserve the rule of law by acquiescing in lawlessness seems to have escaped him.  Admitting that this was perhaps the worst decision since Dred Scott, Breyer posits that the alternatives were to accept Bush’s accession to power, or to take to arms, and he is glad that we didn’t do the latter.

Of course, there was a third option – nonviolent civil disobedience.  Lawyers could have refused to practice in a blatantly politicized Supreme Court until the “Justices” responsible resigned the positions they had disgraced.  Lawyers could have demonstrated outside the Court until it was cleansed from within.  In Pakistan, that is what lawyers did when the independence of their judiciary was on the line.  They shut it down.  American lawyers could have done the same.

Of course it would have been utterly unrealistic to expect that modern American lawyers would demonstrate their commitment to the role of an independent judiciary, to the institutional underpinnings of democracy, and to the rule of law in such a manner.  For American lawyers such commitments are mostly superseded by their ethical obligations to pursue to the exclusion of nearly any other consideration their clients’ interests, narrowly conceived in terms of pecuniary gain or loss and advantage with regard to the specific rights at issue in the instant litigation.  American lawyers do owe a theoretical allegiance to the rule of law and integrity of the judicial process, but refusing to acknowledge the authority of a corrupted court is not something they teach you to do in law school as a means of implementing this.

The end result is that Antonin Scalia, may he grow like an onion with his feet in the air and his head in the ground, will serve out his term with all the honors that normally accrue.  Meanwhile, I wonder whether the life has left our legal system.  Two hundred years or so ago, back when John Marshall, who merited the title of Justice, was inventing such things as judicial review, our legal system was animated by the necessity of creating its own place in a newly evolving system of government and ordered liberties.  More recently, in Pakistan, the lawyers showed what it means to love the law.  In modern America, not so much.  Our legal system has found its place and is quite comfortable in it, thank you.  I wonder if our inability to think outside that box, much less act upon such thoughts, signals a final sclerosis, the rigidity of decadence.