I see those miles of white markers at Arlington Cemetery – thousands on thousands of small white gravestones placed over the bodies of young Americans who gave up their lives to save our American values. We have not always acted beautifully – not always in accordance with our highest ideals. We have failed from time to time. But Americans as a people have not failed.

Not yet.

The would-be torturers ask: “What do we do when we know an attack is eminent and that one person knows when and where the devastation will occur? He will not respond to ordinary interrogation. Shouldn’t we torture him for the answer?”

The question is a trick question – a dishonest hypothetical construct. Let me show you why:

The torturer will always argue that the man he has strapped to the gurney knows when, where and by what means the bomb will fall. How does the torturer know this? Has he tortured others to find out? Haven’t we opened the doors to torture in exponential proportions? Haven’t we provided an excuse to all who wish to torture and the rationale to torture at will?

The torturer himself may be unstable, misinformed, evil, stupid or paranoid. His agenda may be pathological. Do we test the torturer hoping to discover if he is solid and credible? In general I would not trust the life of a harmless bunny rabbit to someone who is willing to torture another human being. There is something shadowy and fearsome about such a person who would allow himself to perform such horrors on another human being. It is easy to get caught up in trick questions that have no concrete attachment to reality. We ought not argue such questions because they open dangerous pits from which we may never be able to extricate ourselves.

Let me ask my own hypothetical question: Suppose we could store all of our American values, in, say, a cup. To whom would you entrust the sacred cup? Would you deliver it to some unknown person who was chosen by Lord knows who, who, himself was chosen by Lord knows who, to protect and preserve the cup for a nation?

Another hypothetical question: Would we deliver the wealth of a nation to someone who instead of torture, could roll out a train loaded with thousand dollar bills – billions – to purchase the necessary information to save the nation? It would, of course, greatly affect our taxes. It would break many of us. We might argue that the enemy might well accept such massive wealth under false pretenses but still destroy us. Yet the enemy may well also accept torture without telling us the truth and in the process of torturing we would have sacrificed our values as Americans.

Torture is evil. To accept it under any case – and all cases will eventually prove to be hypothetical – is to tell ourselves that we really don’t believe what we say we stand for.

Torture is evil. To accept it under any case – and all cases will eventually prove to be hypothetical – is to tell ourselves that we really don’t believe what we say we stand for. It says that we lied to those kids who gave up their lives and whose bodies rot under the little white markers at Arlington Cemetery. It says we have a set of life rules that when tested have no meaning, because they can be set aside at the whim of some unidentified torturer in a hidden room. That person does not speak nor act for me.

Likely he does not speak nor act for any of us.

Photo Credit: beggs

The idea that we should furnish the poor with a public defender has been an effort to save our nation from shame – for sending the poor to prison without adequate representation. But today the nation’s public defender system has become a mockery of justice.

To provide an accused with a public defender who has three hundred other cases to defend is simply to laugh in the face of both justice and the accused himself. It takes me months to prepare the average criminal case for trial. The trial itself can take weeks, even months.

While O.J. Simpson was being tried in Los Angeles for murder, a case that cost millions to defend and months to conclude, another black man was being tried in the same courthouse for a similar murder. It took only three days for a jury to find him guilty. He had a public defender with scores of other cases to defend. Many prosecutors boast that they have over a 90 percent conviction rate. Little wonder. Under the present public defender system the prosecutors should enjoy one hundred percent convictions, and many in fact approach perfect conviction rates.

The public defenders in seven states have finally refused to take on any new cases. It’s about time. If I walked into court to defend my client and had never talked him, never previously opened his file, never discovered the witnesses against him, much less interviewed them, never reviewed the evidence in the hands of the prosecution, never demanded my clients rights to discovery, never read the cases relevant to the case at hand, never prepared the cross examination of the witnesses against my client, never …and on and on, I would be guilty of legal malpractice.

Every public defender who purports to represent an accused under circumstances in which he or she has neither the time nor the resources to fully defend the client is guilty of malpractice. These public defenders cannot be saved from malpractice because they are crushed under a ridiculous case load – some with even as many as five hundred cases or more. No one who was accused with such an attorney has received a fair trial and every such accused is entitled to an appeal on that basis alone. The judge must not sentence the accused under these circumstances because the judge would be taking part in a fraud on the system. Yet hundreds of thousands of indigent persons go to prison each year under circumstances no better than those outlined above.

When I was coming up as a young prosecutor, the defendants were represented pro bono by the lawyers in the local bar. It was part of the duty of members of the bar to take part in the justice system. Today that idea is unheard of. The practice of law is first and foremost a money-making profession. I see nothing wrong with that notion, but what about giving back?

Every trial lawyer should be required to take on a couple of pro bono cases every year. At our office we have a separate pro bono law firm and have for over ten years. It often brings us more satisfaction than our big money wins. The job of a lawyer is to represent the people – the lost, the forgotten, the damned, the hated, the voiceless and the poor. Indeed, God forbid, we may one day become one of those who are entitled to representation but cannot afford it.

Every time an accused goes to prison without having received a fair trial we are one step closer to the loss of our own freedoms. Our rights are, in fact, being fought for by public defenders who can never fulfill their duty to their clients because of their pathetic, impossible, caseloads. When they fail, we are in danger. Our system becomes a hypocritical charade. And we prove, once and for all, that the promised justice for all in America is an evil lie that is imposed on the poor.

If only those with money can receive justice, then how can we permit our children to recite a horrible falsehood in school when they chant, “with liberty and justice for all.” That can no longer be the truth in America.