Crime & Federalism

The Los Angeles Times on Schwarzenegger

Professor Bainbridge has the details.

Be Kind to the Well-meaning Dilettante

I made my first post to Crime & Federalism - then, hosted on Blogger - on March 18, 2004. Last night I was able to successfully import my prior posts from Blogger, and I'm currently editing them.

I've noticed a couple of things.  First, I've learned a lot over this year. Concepts that I could barely grasph are now handled like breathing - with simple, involuntary control.

I also noticed that I was quite the dilettante.  Looking back at my old posts caused me to blush at my lack of nuance and context.  I wonder to myself, "How could I think myself qualified to write about such things?"

And yet, had I not started with the boldness possessed only by the fool, or the dilettante, I would still be ignorant.  Writing is the best way to learn -- Someone reading will always happily correct you.

But this past year of blogging offers me a good moral - Be kind and helpful to the well-meaning dilettante.  Chances are, we were all pretty clueless last year, and we are all still students this year.

Greatest Criminal Defense Lawyer

George Uelman, in this law review article, asks "Who is the Lawyer of the Century?"

The "death penalty" lawyers ranked Gerry Spence and Johnny Cochran above Edward Bennett Williams.  I wonder what, if anything, the "death penalty lawyers" knew about Williams.  The Arizona lawyers did a better, although they ranked Spence ahead of Williams.

Law students, proving they are more interested in television than the tomes of the masters, each put Cochran and F. Lee Bailey and Leslie Abrahams (?) ahead of Williams, since they didn't list Williams at all!  Bailey, incidentally, ranked Williams the best lawyer of all time.  Anyhow, judging by law students' selections, the future of the criminal defense bar looks bleak.

One person not making anyone's list was Max Steuer, whom some consider the second or third greatest criminal lawyer in history.  Irving Younger - conspicuously absent from the survey - and Francis L. Wellman - who knew something about cross-examination - considered Steuer to have been the greatest cross-examiner who ever lived.

I guess the moral of the survey is that we should not learn anything about dead trial lawyers.  Instead, we should admire the ones we see on TV.  Because, if they're on TV, they must be the best.

(Via the Illinois Trial Practice Weblog).

Amicus' Greatest Hits

Here are some of my favorite pictures of my dog, Amicus.  He's 14-months old and probably my best friend.  [Click on the photos for a larger image.]

A brand new puppy:

The famous pig-feet pose:

Here he is, studying hard:

And finally, playing with the cat:

What Can the Samurai Teach Lawyers? Part Two

Yamamoto Tsunetomo, author of the passage quoted from the Hagakure, quoted below, said that a samurai should recite four vows each morning:

1. Do not fall behind in bushido!       
2. Be of use to my lord!       
3. Be filial toward my parents!       
4. Arouse great compassion, and be of use to other people!

Bushido's literal translation is "way of the warrior," and in the context of the Hagakure, means that one must train in the martial arts daily.  Master Tsunetomo's four vows have ready application to lawyers  -- Indeed, we need only slightly modify the vows:

1. Study tactics and advocacy daily!
2. Be of use to my clients!
3. Be filial toward my parents!
4. Take cases pro bono!

What Can the Samurai Teach Lawyers?

One of the two classics of Japanese warrior philosophy is the Hagakure.  Like the samurai, a lawyer is supposed to place the interest of his client above his own.  Although many samurai attained great fame and esteem, their retainers - and not the samurai's fame - always came first. 

Thus, this passage from the first chapter provides good advice for lawyers.

A man is a good retainer to the extent that he earnestly places importance in his master. This is the highest sort of retainer. If one is born into a prominent family that goes back for generations, it is sufficient to deeply consider the matter of obligation to one's ancestors, to lay down one's body and mind, and to earnestly esteem one's master. It is further good fortune if, more than this, one has wisdom and talent and can use them appropriately. But even a person who is good for nothing and exceedingly clumsy will be a reliable retainer if only he has the determination to think earnestly of his master. Having only wisdom and talent is the lowest tier of usefulness.

  According to their nature, there are both people who have quick intelligence, and those who must withdraw and take time to think things over. Looking into this thoroughly, if one thinks selflessly and adheres to the four vows of the Nabeshima samurai, surprising wisdom will occur regardless of the high or low points of one's nature.' 

  People think that they can clear up profound matters if they consider them deeply, but they exercise perverse thoughts and come to no good because they do their reflecting with only self-interest at the center.

It is difficult for a fool's habits to change to selflessness. In confronting a matter, however, if at first you leave it alone, fix the four vows in your heart, exclude self-interest, and make an effort, you will not go far from your mark.

  Because we do most things relying only on our own sagacity we become self-interested, turn our backs on reason, and things do not turn out well. As seen by other people this is sordid, weak, narrow and inefficient. When one is not capable of true intelligence, it is good to consult with someone of good sense. An advisor will fulfill the Way when he makes a decision by selfless and frank intelligence because he is not personally involved. This way of doing things will certainly be seen by others as being strongly rooted. It is, for example, like a large tree with many roots. One man's intelligence is like a tree that has been simply stuck in the ground.

Euphemism of the Day

The plaintiff in this civil rights action did not die because a police officer threw him to the ground.  Rather, he died of "hypoxic encephalopathy caused by an acute subdural hematoma from blunt-force head trauma."

A Black Man in a Suit

What does wearing a suit get a black man in Los Angeles?  A night in jail.

My friend "John" was pulled over for speeding.  The police asked him if he had had anything to drink.  "Yes, one beer."  John did not smell of beer, as I talked to him about 15 minutes before he was pulled over.

The police took him outside of his car and had him perform some field sobriety tests.  A very athletic person, John passed with ease. Yet the police administer a breathalyzer. 

John blows, but the breathalyzer was, according to the police either, "not functioning properly," or, the results were "inconclusive." They thus cuff him and stuff him into a police car - on to the police station.  Who knew that the police could arrest someone when their own equipment "malfunctions."

John goes to the police station where on the most sophisticated machine at the station, he blows again.  A .07, within the legal limit.  The police decide he should blow for a third time.  A .08, just enough to arrest him.  They throw him into a drunk tank, impound his car, and force him to spend the night in jail.

Perhaps if John had been white, he would not have been arrested before there was probable cause.  But he was a black man in a suit.  And in Los Angeles, he got what he deserved.

Leave Him Alone, Norm

There goes Norm, screwing with Gerry Spence today.  Norm has a history of this -- I wish I could link to his Connecticut Law Tribune columns.  Then again, maybe not.

I don't think Norm should leave Gerry alone because I'm part of the Koo-Aid Crew, but because Gerry is vulnerable.  We should protect, not attack, the weak.

Spence hasn't tried a case since Ruby Ridge, instead devoting himself to pundicy (though not very successfully), celebrity whoredom, and self-obsession.  At the TLC seminars, there is always an Evening With Gerry Spence, where all are encouraged to pretend like we're best friends with the man.  (Ecce homo?)

Inevitably, someone will ask: "Gerry, why haven't you tried a case in so long?"  Gerry's answer -- "No one will go against me!"  The audience cheers, while I choke on the bullshit.

Spence is a multi-millionaire.  He has the resources to live a criminal defense lawyer's dream - to search out and try actual innoncence cases of his choice.  No pangs of conscience, no ethical dillemmas.  Just rough and tumble representation of people he believes in.

Instead, he flies around in his Lear Jet, talks to trial lawyers about how great he is, and writes books.  This way, he can never lose.

That's all well and good, but when professors retire, they change their titles.  So too should Gerry.  Henceforth -- Gerry Spence, Trial Lawyer Emeritus.

The great trial lawyers like Darrow, Steuer, and Nizer tried cases until they died - win, lose, or draw, they fought like hell.  The fear of losing did not cause them to give up.  It was more important to remain in the fight than to keep a perfect record.  Indeed, Edward Bennett Williams, suffering from terminal cancer, represented Michael Milliken, and the representation ceased only after his breathing.

While Spence might have belonged on a short list of greats, his self-love and self-indulgence has cost him his place.  Like Pete Rose, he let his weakness stand in the way of his greatness.

Spence is not a lion, but a lamb.

Public Defenders or Court-Appointed Attorneys?

David Giacalone, who has consistently advocated for competent counsel for indigent defendants, writes:

[I]ndigent defendants are far more likely to receive consistently competent representation in a system with full-time public defenders (with statewide monitoring and funding) than from situations that rely heavily on assigned counsel.

Is this true?  Should a state concerned with defendants' rights provide more funding for a public defender system than for one relying on court-appointed counsel?

Most people I know work (or want to work) for the public defender's office long enough to do 20 or 30 trials.  Afterwards, they plan on going into private pratice.  This might mean that many public defenders have little experience.

However, public defenders, unlike court-appointed lawyers, strictly ensure that a PD's experience is appropriate for the crime charged.  Thus, junior PDs begin by working only on arraignments and client interviews; then they handle only probable cause hearings; then they try misdemeanor cases; and only after years do they move up to trying more serious criminal cases.

With a court-appointed system, even a green court-appointed attorney could draw a serious offense.  Excluding death cases, it's not uncommon for a fresh court-appointed attorney to represent someone who is facing many years in prison.

Which is better?  Is Mr. Giacalone right?