The trick question about torture

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

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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.

The art of catching pigs

Recently someone wanted to talk about catching wild pigs. Why should anyone want to know? There are a plenty of domestic giant hogs running loose on Wall Street.

He told this story:

“You catch wild pigs by finding a suitable place in the woods and putting corn on the ground. The pigs discover it and begin to come everyday to eat the free corn. When they are used to coming every day, you put a fence down one side of the place where they are used to coming. When they get used to the fence, they begin to eat the corn again and you put up another side of the fence.

They get used to that and start to eat again. You continue until you have all four sides of the fence up with a gate in the last side. The pigs, who are used to the free corn, start to come through the gate to eat, you slam the gate on them and catch the whole herd.

Suddenly the wild pigs have lost their freedom. They run around and around inside the fence, but they are caught. Soon they go back to eating the free corn. They are so used to it that they have forgotten how to forage in the woods for themselves, so they accept their captivity.

The storyteller then suggests that that is exactly what he sees happening to America.”

I say, I have rarely seen a corporate executive who was hungry. Yet more than a half million children in America go to bed hungry each night. Tell them and their parents the pig story.

The cruel irony is that the pigs, the giant hogs on Wall Street and elsewhere (they thrive in Washington D.C. as well) are engaged in capturing the people upon which they feed. One hog asks another: “Do you know how to capture innocent citizens? You make false promises. You lie and cheat and commit all nature of fraud, and the innocent people, believing that huge investment houses and corporate businesses with legendary names would never steal from them entrust we hogs with their money. It is that simple.”

The irony proves to be even more insidious. Corporate America, the non-living, non-breathing composite hog has captured massive numbers of Americans, indeed, most, through television, teaching them year after year what they must buy in order to be cool. They are taught to buy on credit. They are taught to mortgage their homes and cars. They are taught “to shop until they drop.” Then the corporate glob teaches them how to get out of debt by going to a debt-consultant who takes more of their earnings to help them keep the corporate hog fed.

Corporations do not build fences to catch people. They throw propaganda nets, called advertising, over the people. The bait in the nets is the TV shows that people watch, and as they watch they are gradually dumbed-down and captured by endless corporate propaganda that tells them how they must spend their earnings to be acceptable — the new car –the new TV set – the diamond that is a symbol of love — on and endlessly on.

Now that the people are in debt and need help, the corporate hog would doubtlessly love the pig story. The questions the corporate hog now asks hard-working ordinary people are: “Why don’t you work even harder to feed yourself and your family? Why aren’t you independent like you should be? Why do you want something free?”

Now the irony approaches absurdity. The giant hogs have eaten themselves. Nothing remains. Their lies and their frauds have been exposed. Their destruction of trust and their rejection of basic American values has now become rampant. And the hogs come begging to the people, ride their corporate jets to Washington, and beseech the people to save them.

Closing down the whorehouse in Washington D.C.

Dwight asked what I thought of corporate firms and the appointment of Eric Holden as Attorney General.  Holden works for one of the largest corporate law firms in the nation.  I thought what I wrote him might be of general interest. Here it is in part:

Dwight: I lost what I wrote you somewhere. It is floating around in all of its immaculate wisdom in cyberspace and will one day descend and save us all.

I wrote that corporations are dead. Therefore they require the dead to represent them. I wrote that one cannot work for the dead for very long without beginning to die, that is, the human psyche begins to dry up and one day will fall out on the carpet of the boardroom floor. It will look something like a dried up old prune.

Holden has worked for one of America’s mammoth corporate law firms. The government itself is the largest corporation known to man. Perhaps this will serve him well in managing the thousands of bureaucrats who congregate in the Department of Justice, most of whom are also dead or dying. All I ask of Mr. Holden is that he be honest most of the time and that all of the time he will refuse to use his great power for political purposes. His predecessor ran a whore house.

To that I should add:  I have spent a good portion of my life fighting big government on behalf of ordinary citizens.  I can’t think of a case in which the FBI or federal prosecutors were involved that there wasn’t hanky-panky of some sort present. When we humans have power we use it, which, in the hands of government agents, often mitigates against fair trials.  The idea of a fair trial has something to do with honest evidence and ethical prosecutorial conduct despite the imbalance of power between the parties.  Sadly, that ideal is most often vacated, and power, seeking justice or not, too often wins.

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.

For the love of murder

Why do we care about murder?

We murder every day as regularly as we take our coffee in the morning. We murder in the fields of poverty, the poor beating out less than a bare living like slaves without the benefit of more comfortable ways to die. We murder in the name of war – which is but an acceptable excuse for the mob to kill other mobs. War is only gang killing by grownups. We murder in the gas chambers, or with the executioner’s needle on the gurney. We murder children, that is, we smash their beauty and creativity early on so they conform like beasts under the line and yoke.

The murder demon lurks evilly, furtively, insidiously in all of us. We have felt it. As born killers we have seen it in our mind’s eye. We deny it with all due vehemence. Have we ever thought of murder? Of course, not. No. Never.

Have we ever threatened murder? Weren’t we only joking, or simply expressing our passing anger when we said “I ought to kill the sonofabitch?” Just a way of speaking, so to speak?

But why does the idea of murder enthrall us so? The television marketers know it – their endless violent murders. Why do we stare so at the screen, excited like waiting hyenas for the kill? The psychologists call it sublimation. It is our deeply repressed need to kill that attracts us to the murder movie. Thankfully we can kill by watching killers. Violence and blood is a requirement because a neat and quiet killing does not satisfy.

We are all killers at heart. We know this, but we do not admit it. That is why we are so taken by the killing of others and their stories – like golfers like to watch golfers. OJ. Why did a nation become captured by a brutal killing committed by a man of little intrinsic worth? He could run his ass up and down a football field but he had little more to show for himself. If he’d been charged with sniffing glue or stealing baseball cards would we have cared? Even if he had been convicted of wife beating it might have made the headlines of the “National Enquirer” for a week or two. But a murder? A murder by OJ was something that would mesmerize a nation. Indeed, we were captivated by a single murder while we allowed millions elsewhere to die needless deaths from starvation or curable disease, which, when knowingly and intentionally permitted, could be argued as nothing less than murder.

It is the terror of murder – both our fear that it might be perpetrated against us or our loved ones, and that we, yes, we, might in some fit of passing insanity murder another. We do not speak of this although the kindest, most gentle know in secret places that they have fantasized murder – thank God we have our senses, our defenses so well poised against this monstrous crime – but we have seen it in our own mind’s eye. And the murderer was we.

It takes so little to arouse the murder gene within. Especially among the young. We make soldiers of these just-past-children because they can murder so readily. We teach them to intentionally kill, to kill with malice aforethought, to murder, not one but as many human beings as possible if they wear a different color cloth on their bodies (called uniforms) or if they pray to a different invisible entity (called their god.)

Perhaps murder is the easiest of all human skills to teach. It is easier to teach a young man to kill than to ice skate or shoot a decent game of pool, or to recite the Ten Commandments accurately, the sixth of which is a commandment against murder. One notes that having no other god before one, or creating a “graven image” or using the name of God in vain, or keeping the Sabbath holy or honoring father and mother are all commandments that come before the Bible’s admonition against murder. Presumably it is more sinful to work on Sunday than to murder.

And because murder is so much a part of us there is a powerful subliminal defense against murder. Legally one cannot cut the throat of a surprised bed partner of one’s wife, but a jury will often find ways to acquit such a killer because murder in the juror might explode in full force were he faced with the same situation. I am only saying that murder is so much a part of who we are as humans that we accept the horror of it with horror, mostly because the horror of it, in the end, explains who we are.

How to survive the tyrant Judge (part 2 of 3)

Part 2, The dangerous disease of power

I have long held to the proposition that the expressed motivation attracting judges to the bench is suspect.

I do not take as universally true the easy, self-serving assurance of many judges that he or she simply wants to do good. I am leery of do-gooders. I have believed, and I still do, that judges, like all persons, have needs that fuel their choices. Their need, in a money society, is certainly not money, for judges are notoriously underpaid. The greatest attraction to the bench is simply power. In a given case the judge has more power over the litigants before him than any other human being on the face of the earth.

I have sometimes encountered tyrant judges who lord it over the poor rabble struggling below them, who seem to enjoy observing a particular lawyer helplessly twisting and turning in the winds of their whims. I have suspected that some such judges furtively rejoice in their power over lawyers who have been more successful than they, and over litigants who for unobvious reasons the judges may despise. I have seen judges who eagerly await the opportunity to dump a load of scorn on those who have made unfortunate choices in their lives. Yes, some want to do harm. And I am saddened that I find myself writing these lines.

I recognize that judges, like doctors who daily face the injured and dying, and lawyers who are routinely relating to clients who are maimed or hated or who are guilty of horrendous crimes, may become calloused in order to maintain some semblance of mental health. But as for judges, how does a human being wrench screaming children from their parents, turn one’s back on the pathetically injured for no better reason than they fail to fit some fictional legal model, send men to the death house or to long terms in the torture chambers of prison unless the judge has grown a certain protective coating around the hide of the heart? Still even the most gentle judge, the rare one who exudes a caring nature, is often one who I am not likely to trust, not at first. I have discovered that too often an outward benevolence covers a merciless heart.

But if I am fair I must acknowledge that judges are not too different than I. I, too, claim I want to do good. I claim that I have devoted my life to help the forgotten, the lost, the voiceless, and the damned. It all sounds good. The idea of it feeds my soul. I have a need to be useful, to feel worthy, to engage in just causes, to fight just fights. I wish to be seen as a warrior for the people. If my own sense of self stands for justice on behalf of ordinary people, justice against the powerful, against the corporate overlord and the tyranny of government why can’t I grant such an honorable motive to judges? After all, we have encountered many humans who genuinely care. And judges who were once lawyers surely know the dismal plight of those who seek justice and who so rarely obtain it. Yes, rarely.

Still, these days too many judges ascend to the bench bearing a fealty pledged to the people’s masters. We can understand the phenomenon. Today, most judges are selected by a power saturated with the interests of business, and a majority of the judges appointed were once prosecutors or corporate lawyers. In their former lives these lawyers took on the cause of power. As prosecutors they were daily drowned in the dreary decadence of criminals crowding the jails. As civil defense lawyers they experienced the excesses of trial lawyers representing those who claimed to be injured or who, even though injured, sought to take advantage of their injuries. The politicians seek judges who reflect their own philosophical leanings. The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.

“The tree grows bent in the direction of the prevailing wind and in the calm can never fully right itself.”

Unfortunately, my view of the bench is supported by a majority of trial lawyers who represent ordinary people. At the Trial Lawyers College, where we teach lawyers how to successful fight for people against corporate and government power, the attitude of the attendees who have spent many years in the trenches before countless judges is nearly uniform. Rarely do I find a lawyer who believes most judges are mostly fair, mostly caring, and mostly driven to accomplish good ends. Sadly, many see judges as their enemies, as opponents in the courtroom even more powerful and adverse to the lawyer than the opposing lawyer.

They see judges more concerned with their dockets, with moving their cases forward, with controlling the courtroom and the lawyers, with making decisions that will be acceptable to their constituents and that will not be badly reported by the media. True, most often lawyers do not see judges as overtly dishonest or even consciously in the pocket of power. But they see them as the possessors of power who too often exercise it wrongly, insensitively, in forwarding their own agendas, and ultimately functioning to the detriment of the litigants. This is not to say that there are no caring, fair, even loving judges in this country. Many, but not enough, do great honor to the bench. In the end, a majority of judges are seen by most people’s lawyers as a power source of harm.

As for me it is harmful to look up to a judge who has ignored the poor and bowed to the rich, to show such a judge respect when he is not worthy of respect, to show such a judge deference when he reveals an underlying indifference to the human condition, to give such a judge honor when he has lived a life on the other side protecting power and money. Yet I am troubled by these judgments.

COMING SOON, Part 3 of 3: “The judge. Who is this tyrant?”

Defrauding our nation’s lawyers

Most trial lawyers have been defrauded of their education.

On the average it costs more than $100,000 to get through law school. And after four years in undergrad and three more years in law school, the law school graduate doesn’t know enough to pass the Multi-state Bar and has to spend another $5000 or more to prepare for that. Even then many will fail the bar, some more than once.

The bar exam itself is a fraud. The exam does not help the law profession to determine those who will fight for people, who are honest and who have courage—the most fundamental requirements of a lawyer for the people. The bar exam only tests the applicants ability to play their mostly silly word games.

So we have law schools claiming they are educating lawyers when most lawyers, as they drag themselves out of the misery and boredom of those three empty years, are tragically unprepared to do anything useful. I have often said that for an assistant to help me in a trial I would rather have a nurse than most lawyers fresh out of law school.

The nurse has been trained to listen to the patient. Lawyers know little about listening. The nurse chose her profession because she cares about people. Lawyers are not taught to care. They are engorged with the rare niceties of legal gymnastics often taught by ponderous-headed professors who have never looked into the painful eyes of a client and who have never tried a single jury trial for a human being. If a student complains that a case he or she is studying does not render justice, the professor is quick to retort, “We do not teach justice here, Mr. Jones. We teach the law.”

I could teach an eighth-grader in twenty minutes how to brief a case. Yet for all three years in most law schools the casebook method of learning the law is still in. The matriculating young lawyer is as qualified to represent a client with the education he has suffered through as a doctor who has never seen a patient, who has never held a scalpel in his hand and who learns surgery by having read text books about it and becomes skilled in surgery, if ever, after having stacked up piles of corpses who represent his pathetic learning process.

“The trial of a case, in its simplest form, is telling a story jurors can understand. Yet most lawyers are taught little, if anything, about communicating with others.”

The trial of a case, in its simplest form, is telling a story jurors can understand.  Yet most lawyers are taught little, if anything, about communicating with others.  They are taught to deny their feelings and, at last, have so long shielded themselves against their feelings for that many find it nearly impossible to get in touch with them. Yet justice is a feeling and jurors (as do we all) make their decisions based on their feelings.

Most lawyers know little about classical literature and history, have never written a poem, have never painted a picture, have never stood before an audience and sung a song, have never been permitted to confess their pain or their love, and, in short, have been denied the stuff of personhood.  One need not write poetry or paint pictures to be a successful human being.  But some intimacy with the arts and the language and its use and with right brain functions of feeling and creativity are essential to the development of the whole person.  Little wonder that lawyers, disabled by all of the stifling, mostly useless mental exercises they have suffered, have trouble relating to jurors much less to the rest of mankind.

Is it not a miracle that after having been defrauded of their education at the hands of the entrenched in our law schools that American lawyers haven taken on the fraudulent mindset of their educators who have defrauded them?
 

More Reading

• Mending Legal Education from Best Practices for Legal Education
• Part-time Law School Blog
• Public Interest Law Institute
• “Let’s Make a Deal! Dickering Down Your Law School Tuition”
• Comments to the above “Let’s Make a Deal! article:
• Comment by Make money not law – July 12, 2008
• Comment by Anonymous – July 13, 2008
• Comment by Ed – July 13, 2008

What do I mean by our slavery?

I mean that state in which the person has no effective control over the course of his or her life.

Surely that is neither you nor me. Surely.

I mean, if no matter how he struggles, no matter how she labors at the task, if neither cannot explore their boundless uniqueness they are enslaved.

I mean, if he has lost his only power, the power of the self, he is enslaved. And if her passion for life is encaged by duty and the expectations of others, she is not free.

But surely this is neither you nor me. Surely.