Guilty until proven innocent

Illinois Governor Blagojevich, judged by approximately 200 million Americans old enough to serve as jurors, is a crooked politician, indeed a criminal, a snarly, mop-haired, smart-ass who tried to sell Obama’s vacated seat in the Senate, and as the consequence of which he should be expelled from office and provided immediate residence in a federal penitentiary where, hopefully, he will get a haircut. He also has a dirty mouth. Whether he is guilty of any crime I do not know. Nor does anyone else including Mr. Fitzgerald, the prosecutor, who, the last I heard, was not the jury.

Simply stated, Mr. Fitzgerald has absconded with the governor’s presumption of innocence. The prosecutor has abused the immense power of his office to transform otherwise innocent members of the public — all of us – into persons who, as a result of Mr. Fitzgerald’s releases to the media, have already decided the governor’s case before we have been provided the first word of sworn testimony in a court of law. The prosecutor has converted us from the innocent to prejudiced persons. As a result of the prosecutor’s media blitz we have already come to the conclusion that the governor is guilty, and we demand that he be appropriately dealt with and immediately. A drunk who runs the stop sign at First and Main is provided a better set of rights.

This is an experienced prosecutor who knows better. All trial lawyers down to the kid trying his or her first case know that cases are to be tried in a courtroom, not in front of a TV camera. Mr. Fitzgerald knows that his trial of the governor before the cameras calls into play the Canons of Ethics that govern not only prosecutors but defense attorneys alike. We are prohibited from engaging in pretrial public statements that are likely to affect the outcome of the trial.

Mr. Fitzgerald’s conduct has substantially guaranteed that the governor will never obtain an unbiased jury in Illinois or anywhere else. That the prosecutor, who is governed by standard rules of ethics, would take such risks suggests that he sees himself above the law as he attempts to prosecute a governor in the media who allegedly also sees himself as above the law. Were I, as a defense attorney, parading before the cameras attacking the prosecution and factually defending my client I would be immediately gagged, and threatened not only with contempt of court, but with complaints to the bar where my license to practice would be in jeopardy. That such arrogant power is vested in any prosecutor is frightening in itself and destroys an even playing field to which both sides are entitled in their search for justice.

Our collective public mind has been molded by the movies and television to accept the notion that the common good permits, indeed, encourages cops and prosecutors to violate the law in order to protect us. We see the police battering down doors of suspects to illegally obtain evidence. We witness the cops bugging phones and forcing confessions. We want the police to win, because they are the heroes of the drama and such crimes are serious and threaten our security. But this sort of lawless bludgeoning of the law does terminal damage to our system of justice. By destroying the rights of any accused none of us are ever safe from the law that once stood to protect us.

Mr. Fitzgerald has selected and then dumped out pages of unsworn, untested, evidence before governor has even been charged. We already know that what the prosecutor provides is only part of the story, only the juiciest excerpts that will cause the governor the most harm. The grand jury has not yet met. Every potential member of the grand jury and later every trial juror who will sit in judgment of the governor has already been stained with prejudice against him. The presumption of innocence has been reduced to a cruel joke. Why have a trial? Mr. Fitzgerald has already convicted the governor in the media. One wonders if the government’s case is so legally flimsy that the prosecutor must revert to these tactics in order to assure a conviction.

Let us now make our own judgments. For this purpose, and for this purpose only, let’s accept the allegations of Mr. Fitzgerald as true. Let’s then ask: Which is the worst conduct — for a governor to seek the sale of a vacant senate seat or for a prosecutor to wrongfully deprive any American citizen of a fair trial and to destroy his constitutional right to the presumption of innocence? The act of the governor results in his illegal enrichment and constitutes a serious undermining of our representative system. The act of the prosecutor results in the wrongful destruction of an American citizen’s rights and casts a threatening shadow over the entire judicial system charged with the duty to secure our constitutional protections.

Mr. Fitzgerald’s conduct transcends this case. What we witness without a whimper from the media, the courts, or the bar is a prosecutor charged with the highest professional duty to see that every accused, no matter how guilty, obtains a fair trial, and who, instead, in this historical instant, has voluntarily taken steps to see that such a right becomes little more than a sad, distant echo of a justice system that once set the standard for the world.

Advertisement

America’s great lie

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.

On murder

“You can never beat the big one,” old Tom Fagen used to say. He was a grizzled, tough talking criminal defense attorney who was as sweet and easy inside as an Easter bunny. He was talking about murder — the charge. If you are guilty and tried, and if the jury acquits, it makes no difference. You can never beat “the big one.” An evil entity intervenes. The Prince of Demons shall we call him. He attacks with guilt. I have known those who beat “the big one” in court to at last be beaten by their own hand. Suicide it is called. I think it better called the revenge of “the big one.”

I have seen those who have beaten “the big one” end up being murdered by others. I have seen them die the slow self imposed death of piteous alcoholics or drug addicts. I have seen them die desolate, alone, often diseased when the body has given up because the mind could no longer deal with “the big one.”

I know that the psychopaths and sociopaths, those without a conscience, may still trot around, perhaps dying of old age, laughing that they beat “the big one,” perhaps even more than once. But those poor devils were beaten to begin with, their lives a waste and empty as a can. They never were in the race – not even the human race.

But what about the innocents who are charged with murder and acquitted? Once charged, the innocent can never fully recover — the terror of the trial, the helplessness of standing for judgment in such a place of horror as a courtroom where nothing grows, where no one believes you, where if you rise up and scream your innocence you are hauled away where you can scream only at gray walls, and if you sit passively by the judgers, the jury, the citizens, the court gawkers – they all know you are guilty or you would be screaming your innocence.

And you cannot escape the transforming power of fear. At night you awaken and the first thought that creeps into your mind like a poison worm is that you will be found guilty, that they will haul you off in an orange suit to some dark hole where you will rot the rest of your life, where you will never again see your loved ones, never be touched by a loving human hand, never again see the peaceful leaves of fall or the joyous spouts of spring. No greater punishment exists than one imposed on the innocent.

Or, yes, they may order the gurney and the dripping needle for you, the last meal, the media crowded around to watch you die, and the hateful death-penalty ghouls rejoicing in the hallways that one more of their species has been wiped from the face of the earth.

In this world in which all innocence has become the cynic’s delight, there is no innocence. On that rare occasion when the innocent may be acquitted there has been too much pain for too long. The torture of months, perhaps years of terror awaiting trial and then the horror of the trial itself – it is then that The Prince of Demons comes to occupy even the body of the innocent accused. The tortured body and mind have become emptied of life, empty as death. It’s as if you have been murdered by the malicious heat of the murder trial itself. As old Tom said, you can never escape “the big one.” No, never.

How to survive the tyrant Judge (part 3 of 3)

Part 3, The judge. Who is this Tyrant?

We remember from Part 1 that the abused child likely sees the judge as a potential abuser. The child whose parent was self-centered and narcissistic, as a lawyer, will likely suspect the judge as having little concern for him or his client. The child who feels his parent abandoned him will see the judge as one who cannot be trusted. Yes, and the child who was loved and deeply protected may, indeed, as a lawyer, relate to the judge as the source of protection and favor. Any accurate understanding of the judge-lawyer experience requires us to become aware of how we saw the power-persons of our childhood. This judge–any judge–like any other person of power, has the capacity to help, even to love. Yet this same judge can, if challenged, descend upon us with a vengeance in accordance with the judge’s own psychic composition, all of which bring us to the consideration of the judge. Who are they?

So we walk into the courtroom dragging our baggage behind us and look up to His Honor, who drags into the same room his own baggage. Obviously these persons were once lawyers themselves, and before that, children who had experienced their own power-persons. These are human beings who are as vulnerable as we, and to the extent that we have begun to understand ourselves in relation to authority, so, too, we can understand them.

When judges ascend, they do not leave behind their beginnings. When they take on the black shroud their roots do not evaporate into the firmament. Indeed, judges, as we, will exercise power in ways reflecting their own struggle with authority. It is useful to see the judge not as this tyrant peering down at us with evil intent, but as this child not different than we, not this monster shouting his fearsome commands at us or the bully embarrassing us before jury, but the child before he was immersed in his own history. Could we but see the judge as human, as reacting to his history, might we not be so afraid?

At this seminar of Trial Lawyers College I have previously mentioned, the great Josh Karton – a teacher of far more than drama – was working with a pair of attendees. One played the role of the uncharitable judge, the other the lawyer who was attempting to win his point. The lawyer, as is his wont, spoke in the high tight tones of the arguing lawyer employing the empty words we use in the courtroom. Karton frequently interrupted imploring the student to use plain words, not, for example, “I hereby move the court for a continuance,” but, “Your Honor, I need to have this case put over for a week.” Not, “I am otherwise committed by a prior setting in another court,” but “Judge Jones has ordered me to trial on Tuesday.”

The lawyer playing the part of the judge was unmoved. “This is not my problem, counsel,” he replied. “You can take this up with Judge Jones.” But suddenly Karton changed the entire environment when he suggested that the student ask the judge for help. “I would appreciate it if…”

“No,” Karton said. “No. Ask him for help.”

“I would like you to…”

“No,” Karton interrupted again. “Are you afraid to use the word, ‘help?’”

“I need…”

“Use the word, ‘help.’”

“Could you help me,” the lawyer said at last.

The judge was silent for a moment, almost as if he couldn’t think of what to say. Finally he said, “See my clerk, counsel. Perhaps he can find a spot week after next.”

We discovered that the word ‘help,’ does, indeed, carry with it powerful urges. That word is consistent with the parent’s responsibility to the child. On the psychic plain, if the lawyer is child and the judge parent, an underlying impulse to help is at work. The need to be helped is endemic with the judge who was, himself, a child in need of help, and that need persists with the judge who is now the power-person with a parental duty to help. As judge, he likely told himself and his sponsors that he wanted to help his community by rendering justice. To be helpful is the confessed motivation for most judges to abandon private practice and don the robe. Further, without regard to the lawyer-judge relationship, the notion of being helpful is one deeply embedded in our society. We help, or believe we should, those who need help. By intention, if not action, we have become the good Samaritans from the first days of our teaching.

Something magical happens when the judge soars to that place of power, the bench, from which he stares down at us, or worse, refuses to look at us at all. We forget that yesterday he was as we, smallish inside, puffed up on the outside and standing before another judge projecting the preadolescent posture of his own child. But in a matter of a day he has abruptly changed into someone we do not know. How he has shed his history of humanness is a mystery we do not address. We see him in a different light. By representing power he becomes power. His power casts a new eerie light over him. He speaks in a different tone, and his lexicon seems foreign and stilted. In our sight, and in our ears he has transmogrified into that which has arisen and is untouchable.

At this workshop Karton sought to remind the participants that judges are but humans, that they were lawyers as we, and, yes, before then they were once but little children. He called upon a ex-marine, a former sergeant in the View Nam war to play the part of judge. He dressed this judge up in a pair of little panties and put a teddy bear in his arms. Then Karton called upon another participant to present his argument to the judge. There was spontaneous laughter from the audience. How silly, the judge, how ridiculous. That we should be intimidated by such a man, was unthinkable. But how was it that a tough Marine, by a few exterior accouterments of the child, was transformed in our vision from the fearsome jurist to the ridiculous child?

We, of course, know that although the judge may have a revised view of himself, his underlying self has not changed. Although he may be taken with his new power, nevertheless we know that at his core he is the same old Henry Honeycut. The principal change has been in our eyes. They play tricks on us and cannot be trusted.

In the debriefing that took place, the sergeant who had played the role of the judge was asked if he had felt humiliated. He, too, was the same person both before and after his role playing and the fact of his embarrassment was barely able to penetrate his tough exterior. “Yeah, maybe a little,” was all he would admit to.

But at lunch I sat across from a member of the faculty and as we talked about what we had witnessed he began to tear-up, his lips began to quiver and I realized he was crying. I asked him, “What’s the matter, man?” and he replied, “That judge (referring to the marine) was hurt.”

“Yes,” I said, “perhaps a little.”

“More than that,” he said. He is a very sensitive man. “More than that!” he said again weeping through the words. Then he burst out with it: “Who protects the judge?”

And the epiphany came exploding through to me! The judge, before him, the lawyer, and further back the abused child, had always sought protection. There is power in the legal profession, not the greater power of the judge, but power. The lawyer has more power in the course of human affairs than the plumber. Lawyers, police officers, probation officers and judges are in power professions. And who needs power? Most often those who seek it need it.

Given even marginally acceptable conduct, when the judge takes the bench his level of protection is also elevated. He does not enjoy perfect protection for he must consider the whim of the voters, the power of a hostile media and the pressures of his office, but once enthroned the security he achieves is greater by magnitudes than that of nearly every other member of the system. To the litigant in any given case the judge is the most powerful person in the universe. To the lawyer (who may once have been his adversary) he is untouchable. Who can successfully attack the judge? What lawyer? What litigant, what police officer—who?

But what about the bellicose lawyer who challenges the judge to “bring it on.” What about the lawyer who’s willing to attack the judge in ways suggesting mutiny, or even to assault him with a poorly disguised contempt? It’s not that the judge is in actual jeopardy. It’s not that his safety is at issue. He is still the judge. He has the power to order the sheriff to place the contemptible lawyer in the cross-bars hotel and to remain in jail until he has purged himself of such contempt. But that the judge has the power to protect himself, even from mere insult, does not mean he doesn’t feel threatened, and the question raised by our sensitive staff member, “Who protects the judge?” becomes an important key to understanding the attorney-judge relationship.

Let us consider the tough, intransigent, irascible old devil who will skin us like a trapped rabbit, the judge we all fear—the judicial bully. We see him with the young, childlike lawyer we have already met, the one with the cemented smile, the baby face and the voice to match. He will protect her. She requires shield and shelter. But put our mucho-macho man before the same judge and although in reality the judge is no more threatened by him than by the childlike lawyer, the judge will disembowel this lawyer. It isn’t that the judge arises to any danger, real or perceived. He reacts to the child within. He needs protection, and when our friend asks, “Who protects the judge?” we see that he protects himself, the child within, with the power of his position, the power he sought in the beginning for his protection. “Who protects the judge?” We do. We must if we are to effectively represent our client before him in the courtroom.

So there we are, judge and trial lawyer, mirrors of each other, sometimes both fearful of one another, and both taking such steps as may be necessary to survive a perceived danger—both persons echoing the trauma of times past. From the lawyer’s standpoint, his best defense is to understand himself or herself. We cannot educate His Honor about the roots of his need to judge. We cannot take him by the hand and lead him into the forest of his past and reintroduce him to those experiences that formed his needs. Those in power are rarely capable of recognizing the forces that led them to seek it.

But we have become enlightened. We have inspected those original places where the child in us is like the first rings that make up the towering tree. The tiny rings at the heart of the tree never disappear no matter how mighty the tree may grow. We begin to understand how the child in us is still so easily threatened, but so, too, is the judge’s child. We both seek protection. We observe the threatened child as lawyer, fearful, terrorized, sometimes, in defense, confronting and hostile, threatening, even raging. We see the lawyer both afraid and angry that the judge he stands before is the tyrant judge. But we have learned that the tyrant judge was born of similar beginnings, and that, to the same extent we need protection, so does the person we fear the most in the courtroom—His Honor.

The mirror is always at work.