The art of caring

Two absolute requirements for a trial lawyer, yes, any lawyer are (1) a conscientious caring for his or her client and (2) the credibility of the lawyer. One cannot exist without the other and absent either, the lawyer is but an actor, usually a poor one, a gross pretender.

I argue that caring is contagious. One cannot ask a jury or a judge to care if the lawyer does not care. We tend to like caring people. That’s because we like to be cared about, and some of us like to be cared for. We tend to trust caring people. I say caring is a disease that can easily be caught. But true caring is sometimes hard to come by. Trial lawyers are asked to care for vicious killers, for people who commit horrible acts of cruelty, persons who do evil things, hurt children and cheat old people out of their life’s savings.

But the accused were once innocent children. As all of us, they began life with a clean, pure unmarked canvas. Much of what is written on the canvas is the cruel psychic graffiti, the ugly splashes, smears and slashes laid on the canvas by those who were parents qualified for that sacred trust only by virtue of their reproductive organs, by those who themselves were never cared for. To that extent, not caring is also a disease – one that is often fatal to a useful and productive life.

I suspect that we could put a wiggly little loving Spaniel puppy in a cage, starve it, poke it with sharp sticks, never pet it, ignore its need for love and sustenance and convert the pup into a vicious attack animal when it was grown. But there still remains in that dog the puppy. 

The metaphor is imperfect and sentimental, but you get the drift. One wonders if we are not placing our condemnation in the wrong place. Ought we not be prosecuting the puppy’s owner?   Extending the argument, are we not often prosecuting the wrong person – the parents, those who were responsible for the child, those who by hate and ignorance molded the child into the killer and the rapist – ought they not be the accused in the case? 

My view is simple:  I see the innocent child first. When I see the monster the child has become I feel sadness at the waste and horror at its consequences, and I feel helpless over my inability to change either the accused or the system that created the accused, a system that now prosecutes him with more of the same – more fear and more hatred. Indeed, hatred and fear are the most contagious diseases of all. But one thing a trial lawyer can do – and must do.  He or she must give the accused, the first victim, a caring and competent defense. 

Sometimes we can do more.

Here is an email I just received from a close friend of mine, Joey Lowe, a fine trial lawyer who is defending a soldier in a court martial proceeding. He is doing more and writes:

Dear Gerry:

Sgt. Nelson was a foster kid from New York inner city. He never knew his father, and his mother died when he was only 8. Family was something that Santa Claus could not provide but the Marine Corps offered and so he enlisted right out of high school. He was in the battle named Operation Iraqi Freedom where he was a combat troop who fought his way from Kuwait all the way up to Baghdad. There he saw some pretty terrible stuff especially at the Battle of Al Nasariyah.

He was then brought back again in 2004 for the worst urban combat fighting that the Marine Corps have participated in since the battle for the City of Hue in Vietnam, and some say Iwo Jima because of the close quarters and hand-to-hand combat necessary to root out the jihadist enemy.

There, he and his unit were taking fire from an entrenched and barricaded enemy. Sgt. Nelson watched helplessly as his best buddy was shot and bled out into the dirt streets because the Marines were pinned down and could not get to him fast enough.

The Marines gained access to the house only to find four military aged males sitting on pillows in this barricaded house pretending to be just innocent residents. Despite the fact that the Marines had dropped leaflets for weeks informing the residents to leave the city and that anyone who stayed behind would be considered enemy combatants, these four males said they were just house sitting even though the house was locked from the outside.

Once the Marines had searched the second story of the concrete house they found all kinds of military assault rifles, AK-47s, RPK which is a Russian Military machine gun, loads of ammunition and spent brass from the bullets they had just shot at the Marines. When the jihadists were confronted with the weapons, the spent brass and the smell of cordite (gun powder) throughout the house they just smiled.

The Platoon commander ordered that the jihadists were to be shot and not captured.

The platoon commander, an officer, was given immunity and never charged, the Sgt.-in-charge was tried and acquitted out in town, the second-in-charge was tried on base and acquitted and now they are trying to convict Sgt. Nelson, mostly because he refused to testify against the first two Marines. The Government put him in federal prison on Memorial day to force him to testify, but he still would not.

We have filed this petition because we believe that the command, through the prosecutor Capt. Gannon, have committed undue influence over the prosecution and according to military courts-martial rules and case law, the case can be dismissed if the judge finds that the acts by the prosecutor would leave the public feeling a loss of confidence in the fairness of the proceedings.

Therefore, we are asking for circulation of this petition for direct proof that the public perceives that these proceedings appear unfair.

All that they have to do is to click on this link http://www.ipetitions.com/petition/sgtnelson/index.html and if they fill out a few fields, it will record their support.

Joey

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