Boxing Snapshot

You're there for hours. It's hot. You're trying to find some small wedge of space to set up two chairs and tape your fighter's hands and try and calm him down and build him up at the same time. While dozens of other fighters and their trainers are all around you trying to do the same. You wait. You warm up. You wait some more. Trying to find that fine edge between warmed up and ready to fight and too anxious. Trying to do the same with four other fighters. Figuring out which of the thirty bouts is in the ring, how many more until one of your guys are up. Getting him gloved up. Finally, one of your kids is called to the ring. He's anxious...no matter if it's his first fight or his whatever number. Bell. Fight. End of the round, in the ring, once again trying to both calm down amd build up. Keep instruction short, to the point. My mantra to my fighters is "relaxed and strong"...that is the zone you're trying to hit. Fight ends. More tension waiting for the decision, assuring your fighter they fought hard and well and its all good no matter what, that judges are impossible to predict. Decision. Win. Loss. On to the next fighter, while trying to deal physically and emotionally with the one who just fought. Four hours. Five hours. Hot. Loud. Crowded. End. Tired beyond words.

And it's glorious. Crammed into the New Shiloh Baptist Church rec hall, our kids (when I say kids,that means younger than me!) fought their hearts out. We won a few,dropped a couple. No matter. I am so proud of each of them and honored they put their trust in me (even if they don't always listen!). Very happy that lots of our other kids showed up to support their mates. As always, the camaraderie of fighters, especially two who just spent the last 20 minutes trying to hurt each other, is something you have to experience. There are huge things you learn about yourself and others in fighting. Important things.

Abortion is a theological issue. It shouldn't be a legal one.

 Obviously, the U.S. Supreme Court overturned the 1973 decision Roe v. Wade today. The net effect is to outlaw the right to a legal abortion in roughly half the United States. In my opinion, this is another step in what seems a determined march toward theocracy in this country. 

You may believe that human life begins at conception. You certainly have every right to believe so. But that belief is fundamentally theological and has no place in the legal system of a society predicated on the rule of law and the preservation of individual rights. 

Stop for a moment. Does the law apply in any other regard to something that has not been born alive? Does it count in the census and, therefore, determine in large degree the extent of our representation in our government? Is the male whose sperm caused the conception legally bound to pay child support? Do the people who participated in the act leading to conception have the ability to claim it as a dependent? The answer to all of these, of course, is "no". Because attempting to treat "the unborn" as a legal entity in all respects is virtually impossible from a logical and analytical perspective. And that is all the law should concern itself with. 

So, why is it different for abortion? Because human life is "sacred"? "Divine"? Believe that if you will (and I will defend to the death your right to do so) but also recognize and admit that these are theological concepts and, as such, have no business being imposed on those who do not share them. I do not recognize the sacred and the divine, I recognize that a person becomes an entity under the law when they are born alive and THAT is the only entity that has rights worth protecting. To do otherwise is to invite chaos and the shifting of the rule of law to the vagaries of whatever theology the majority ascribe to at the moment. 

Do I have the right, in consultation with my doctor, to have a kidney removed? Suppose now that the cells in that kidney could be used to clone another human. Now do I have that right? Yes? No? Suppose it were the law that the government could force you to have an abortion? Surely wrong, you say. But why? Because it's a "life"? But we've just established that the law does not, indeed cannot, treat it as a life in virtually any other way. So they should be able to tell you to get rid of it. You know why they can't? Because the woman, the actual living person, has the right not to undergo a forced medical procedure.  

I do not begrudge you your faith. It is all that many people have. But the law is something else. It's why clerics and judges are separate. Or at least should be. 

Would you? Could you?

The overall title of this blog comes from a question I've been asked several times over the years in connection with my work as a criminal defense lawyer. Truthfully, it is rarely posed as an actual inquiry seeking an answer. It is almost always a rhetorical accusation flung out to express the person posing its disgust and disdain for my representing the people I do.

Understand that over the last 25 years or so, I have represented people charged with things that most other people can barely imagine. Truly awful things. Indeed, I am currently involved in what is probably the most challenging case of my career, with charges that are hard to even fathom. Despite this, I've never hesitated to accept a case. My immediate response to those who have posed the inquiry/accusation about the soundness of my sleep is that I sleep just fine. I've always said that it is my firm belief that if I fight as hard as I can to insure that the worst of the worst get a zealous defense, then the system stays fairer for everyone. I've had that immediate response even for people like Dylann Roof, who was welcomed into the Emanuel AME Church in Charleston, SC and proceeded to shoot and kill nine people in some twisted white supremacist rage. 

But what of Derek Chauvin, the man charged with the murder of George Floyd? That one caused me to blink. What is my true answer? Chauvin appears, in the video footage of the incident I have seen, to embody everything I most loathe. Everything I've spent my life fighting against. He is a card-carrying member of the oppressor class. Certainly not the oppressed. Not, it would appear, an isolated maniac caught in the tangled, fevered webs of a tortured mind. A smirking bully, unconcerned enough about the damage he was causing to not even bother to take his hands from  his pockets as George Floyd begged for his life. 

But. But. I've always said that my hero is not Atticus Finch, the noble lawyer of Harper Lee's "To Kill a Mockingbird". Finch represented a man he came to feel certain had been wrongly accused. Who was, in fact, innocent. That's always struck me as the easy part of the job. No one asks how you can sleep at night for defending the innocent. The far harder task is to stand up for the worst and say, "No, you must give this person, no matter what they've done, the rights to which they are entitled before you can punish them, and you have to go through me to do it." My hero has always been Darrow, "The Attorney for the Damned". But, only some of the damned? Is Derek Chauvin not one of the damned now? No. That cannot be the answer, at least not for me. The more I've tossed this about in my mind, the more clear my answer has become. John Adams defended the British soldiers accused in The Boston Massacre. America has done a poor job of it sometimes over the years, as much recently as ever it seems. But we must all stand equal before the law. That has to mean something. My phone is not going to ring with a call from Minnesota. But if it did, and the question was "Would you? Could you?", my answer would have to be "yes".

Of Masks and Men

When I go out of the house these days, I have a bandana or shemagh tied around my neck that I can pull up over my mouth and nose when I'm around other people. It's not that hard and, to the extent it either helps in some way to lessen the spread of this virus and/or makes those around me less anxious, it's certainly worth the exceedingly mild inconvenience of tying it. 

It seems, however, that my doing this is, to some, a sign of weakness. Cowardice. Compliance. People have been accosted as such by others who go about "maskless". People expressing outrage and hostility at establishments requiring masks to enter. The editor of the influential religious journal "First Things", R.R. Reno, caused quite a stir when he took to Twitter last week to harangue those who wore masks in public as cowards and morally lacking (he has since taken those posts down and issued a tepid apology). The President of the United States takes great pains to not be seen wearing a mask, and most of those at the White House followed suit (until at least two of those working there tested positive for Covid-19), since it is well-known that he views it as a sign of weakness. 

I marvel at what passes for "toughness" in 21st Century America. I've worked construction. I've been a bartender/doorman/bar manager at everything from a bikers' bar to a fern bar. I've trained/fought/sparred at dozens of fight gyms with very good amateur and professional fighters. So, while I make no claims individually to be tough, I've certainly been around tough people and am pretty good at spotting them. The blowhards and the blusterers? The ones who carry on about their "freedom" to do whatever they want whenever and wherever they choose? Nope, that ain't it. If you don't want to wear a mask while you're out, that's on you. But if others choose to, or places you wish to go require it, that's too damn bad for you. Shut up. And take it like a man. 

MISCELLANEOUS OTHER STUFF: 1)I'm reading Nassim Taleb's "Incerto" series of four books, which includes "The Black Swan". Some brilliant stuff that will make you think. I certainly don't agree with all of it, but it's worth the pretty significant time sink required. 2) Lucinda Williams' new CD "Good Souls Better Angels" is the truth. Check out this link for a sample.   https://www.youtube.com/watch?v=ZoC-0pihuVw. 3) The proper proportion of gin to vermouth in a martini is 5 to 1. You can differ if you wish, but you'd be wrong. 

Grace in the Strangest Place

One of the facts of life when you work as a criminal defense lawyer is that you are going to, quite often, be the object of anger from a large part of the general public and, especially, the family and friends of crime victims. Indeed, the title of this haphazard blog comes from a question, more an accusation really, that has been posed to me a few times. It comes with the turf, and you have to learn early to tune it out. I actually go further and embrace the feeling that everyone in that courtroom, at the very least, wants me to fail and often actively wishes harm upon me. It motivates me, to be candid. There is a not-insignificant part of me that, in some regard, relishes being hated. But that's a far deeper dive than I will impose on you right now. I have been threatened (both overtly and more discreetly), cursed, damned (lots of times) and glared at on a regular basis over the last twenty-plus years of working in the area of murder and mayhem. To be fair, if there's a Hell, the people who have urged that I go there and those who have advised that that is where I am destined to reside are likely correct, although I would disagree with their reasons. All of that was turned on it's head this past Friday afternoon in a way that I was not expecting.

I finished a fairly lengthy trial on Friday afternoon. My client was charged with four counts of murder and one count of attempted murder arising out of two incidents roughly forty-eight hours apart. The case had attracted a fair amount of notoriety in part because a quadruple murder trial is pretty rare, but more because one of those killed was a young woman who had been a contestant on the reality TV show "America's Next Top Model".

My client's co-defendant had actually gone to trial and lost last year on these charges, and I had watched most of that trial. In almost all murder trials, one of the first witnesses will be a family member who identifies the decedent. It is often emotionally charged. At the trial last year, when the Assistant District Attorney was questioning this young woman's mother, she recounted how they had come to the U.S. in the 90's when the girl was an infant, fleeing the hideous war and genocide that was wracking that country and the surrounding areas of the former Yugoslavia. I am of Croatian descent and have Bosnian friends who fled to the U.S. under the same circumstances, so I was far more interested in this testimony than I would normally be. When the ADA asked the woman what her daughter's job was, she pointedly answered that she was a cashier at an eating establishment. No mention of a modeling career. When asked how long she had  been living where the incident took place (she was residing with her new boyfriend who, not coincidentally to the case, was a heroin dealer with lots of cash) the mother again made the point that her daughter had moved there from their home two weeks prior and over the objections to and without the permission of her parents (the young woman was 19 at the time).

Flash forward to our trial. The mother again testifies, still obviously torn up a the loss of her daughter three years ago. Again, she refuses to mention anything about modeling, again makes it clear that her daughter worked a job as a cashier, again makes it clear that her daughter moved over her objections and concerns. As the trial played out, she was there for every moment of the two weeks, often with tears in her eyes. And I never saw a glare towards me or my client. Not in the courtroom, not in the hallways. Even during the two long days of jury deliberations, when it was clear the jury was struggling in their decision. After over eight hours over two days, the jury came back at 4:00 p.m Friday with a verdict.  They acquitted my client in the incident involving one murder and one attempted murder, but convicted him of the three murders in the second incident, the one involving the woman's daughter. None of the family chose to speak at sentencing.

After court was adjourned, I took my time packing up my files and exhibits. I always shake hands with the prosecutors and thank the deputies, clerk, and court reporter. I spoke for a few moments with my client's family about issues like appeal and where and how he would make his way through the prison system. They thanked me and left. Eventually, I made my way out into the hallway and over toward the elevators and took a few minutes to check my messages and emails. When I looked up, the young woman's mother was walking up to me. She put out her hand, and I shook it. In heavily-accented and somewhat halting English, she told me that she understood what my job was and that she bore me no anger. There were tears in her eyes. I told her I was truly sorry for what had happened to her daughter and we found that (unsurprisingly, as the Bosnian community in Charlotte is fairly tight-knit) she knows the Bosnian friends I have. And I told her that I understood what she and her family had faced, and that they thought coming to America would save them from that horror, and how that must make all of this even harder. And she cried a little more and said "yes", and shook my hand again. And thanked me. And that's when I realized I had tears in my eyes too. I've been doing this a long time. That's the single most gracious encounter I've ever experienced. I cannot imagine having the strength to do it myself. I'll never forget it.

Everything Matters

I finished a trial mid-morning on Friday. If your first question is, "Did I win?", the answer is, as always in criminal defense, dependent on your definition of "win". My client was not acquitted. He was sentenced to a rather lengthy term in prison. But I convinced the jury to find him guilty of a lesser charge, and I convinced the judge to impose the least amount of time possible. So, a win? Certainly not. But a loss? Not entirely. However, the result of the trial and the sometimes shifting definition of win and loss in criminal court is not the topic today. Rather, I want to talk about a lesson I've learned several times over the years, but which needs relearning (at least for me) again and again. The lesson, and therefore the title of this post, is that in trial (as with most things) everything matters.

After the trial was over, I spoke to several members of the jury. I don't always do that. Speaking with juries can sometimes be a frustrating and near-infuriating experience. But a good portion of the time, I learn some things in the dialogue. Such was the case this time. A couple of the jurors told me they were initially puzzled as the evidence started to come in. Why was there even a trial? The State had surveillance video, credible witness testimony, a lineup identification, and admissions by my client to police. But they told me they could tell I was taking the matter seriously, and not just phoning it in. One of the jurors said it was clear from my questioning that I was leading somewhere, even if they didn't see it at first. Another juror said the way I dressed, the way I spoke, even the way I buttoned my jacket whenever I stood told her that she should pay attention to what I said. The defense theory of the case was not that nothing happened, or even that it wasn't my guy. Rather, I was arguing that the client had not committed the crime charged. That the State was overcharging and overreaching, and that justice and the rule of law required them to not simply accept the charge in front of them. This is not usually a popular argument, but you have to work with what you have. As I said, it worked, at least to a degree. I had hoped to convince them of an even lesser charge but the judge had not permitted that charge to be considered. Once again, however, the point is that it was the little things that got me results, even down to dressing and conducting myself professionally. It wasn't that my arguments were so dazzling as to to be irresistible but more that attention to detail caused them to listen in the first place.

I've learned this lesson many times over the years, but it's easily forgotten. The ego becomes enamored of one's own perceived brilliance, and it becomes easy to convince yourself that all you need is for the jury to hear your scintillating arguments and all will be well.  But that arrogance can come through to a jury, and they simply won't listen to you, no matter how brilliant the argument. In some regards it's a humbling lesson. But it's also empowering. Taking care of detail got a result that simple argument may well not have. So, no matter how difficult or daunting the situation, focus on doing the little things right. Enough of the little things will often add up. Win? Maybe not. But not a loss. And that's something.

Long Overdue Thanks

A couple weeks ago, in my last post, I wrote about the two men who taught me about being a lawyer and their divergent fates. Subsequent to that post, I started seeing a prompt on Twitter about thanking someone, not a family member, who opened a door for you when they didn't have to. When I thought about it, there was only one answer for me to that prompt...the person without whom I'd probably be stuck being a lawyer who hated his job, wondering why he even became a lawyer. That person is Jean Lawson.

At some level, I knew I wanted to be a trial lawyer from back as far as 7th or 8th grade. I had flights of fancy occasionally when I saw myself pursuing another career, bu those always faded. Putting together arguments, analyzing and attacking opposing arguments, question and answer, these were always the things I loved. Indeed, in law school I initially struggled on exams that prized "issue spotting". I grabbed onto a position from the fact pattern and defended it. I was always better in class than I was in the blue book. The Socratic give-and-take with professors that most law students loathe was the only part I enjoyed. But when it came time to look for a job, opportunities to do criminal defense were not numerous. So I took a job with a small, general practice firm. Now, make no mistake, they were great to me and gave me more opportunities to actually get into a courtroom than most of my contemporaries at big firms. But it was still pretty infrequent. I started to gravitate to bankruptcy in the early to mid '90s, which was a booming field with a pretty fair amount of courtroom work. I started to establish a solid reputation as an excellent litigator but, truth be told, civil litigation was hopelessly boring. Interrogatories, document production and the entire civil discovery process was something I found mind-numbing. Trials were infrequent. And, ultimately, we were fighting about money, which bored me even more. So, I had been a lawyer for about nine years, I was a partner in a four-man firm, and I wasn't happy.

I had met Jean Lawson in, probably, 1995 or so. But I had heard about her before that. And everything I heard was the same: one of the sharpest minds doing criminal defense work in Charlotte. One day in 1996, she called me on the phone. I remember the conversation as clearly today as the day it happened.
Jean: "So, I understand you're a pretty good trial lawyer"; Me: "Well, I like to think so, but I haven't actually tried many cases"; Jean: "Have you ever considered criminal law?"; Me: "Well, I actually clerked for a criminal defense firm in law school, but the firms I've worked for didn't do criminal defense."; Jean: "What would you think about sitting second chair with me on a murder case?"; Me: "Wow, well that sounds really interesting but wouldn't that be diving into the deep end of the pool pretty quickly?"; Jean (in a line that would make one of the only time I can remember her being wrong about a case and which would change my life): "Oh don't worry. This case will definitely plead and it will be a good case to learn on."; Me: "Well, if you're willing, I'm in."

And I was. And, as you've probably already gathered, the case didn't plead. It first went to the NC Court of Appeals on an interlocutory appeal, then back down to trial court, culminating in an 11 week capital murder trial. My first criminal jury trial. And I'm in there with giants: Jean and I representing one co-defendant, Paul Williams and Dolly Manion representing the other co-defendant, Gentry Caudill and David Wallace prosecuting, and the Hon. Jessie B. Caldwell presiding. It was epic. And Jean was the perfect partner. She taught me everything, was incredibly patient, and never treated me as anything but a peer. She insisted I handle as many witnesses as I wanted, gave me the room, space, and confidence to develop my own voice and personality in the courtroom and with the jury. During one break, I told her I wanted to go after a witness much more aggressively than we had discussed. Her response: "You're dangerous. I like that." Every issue under the sun came up in that trial: death-qualifying jurors, Batson challenges, jury views, witness competency, suppression hearings, you name it we had it, including the co-defendant cutting a deal and flipping on us in the 9th week of trial. We lost on guilt/innocence so, again, in my very first criminal jury trial of any kind, we were going to a death penalty phase. And Jean's confidence in me never wavered. She persuaded me to give the final argument in penalty phase. She would cover the law, I would cover the heart and emotion. That argument was simultaneously the most terrifying and exhilarating experience I have ever had as a lawyer.

After arguments were done and the jury was out deliberating on life or death, Judge Caldwell told me to stand up. Puzzled, I did so. It was clear he was angry about something but I had no idea why. He then demanded to know if I had argued to the jury that they could hang (not reach a decision) and that that would result in a life verdict. Such an argument is improper. I was panicked at first. I didn't think I had done so, but I don't use extensive notes in final argument, just an outline of topics to cover, so I wasn't positive. I glanced down at Jean and she was calmly writing on her legal pad in big letters: "Don't worry about this. Just tell him what you believe you said. It will be fine". I can't express how much that helped. Judge Caldwell is a brilliant mind with an occasionally volcanic temper. Without Jean's calm, I don't know how I would have fared. But I related to Judge Caldwell that I certainly intended to walk right up to the line of what was allowed but not to cross it, that I didn't recall that I did, but that I certainly was not going to question what he had heard. I assured him that, had I strayed, it was purely accidental. As the prosecution had not objected during my argument and did not have a clear recollection of me straying out of bounds, the issue went nowhere. Jean had taught me how to both stand my ground and be respectful of the Court at the same time, and it is a lesson that has paid dividends many times over the years. Thankfully, the jury came back before much longer with a life verdict.

When  that trial was over, I knew I could never go back to the practice I had before. I was hooked. This was who I was and where I needed to be. I gradually changed my practice, steadily taking on more and  more criminal matters. In 1999, I told my partners I wanted out. I was going on my own and focusing most of my time and energy on criminal law. Jean and I  worked two more capital cases together, one a truly horrific fact pattern that resulted in a trial that I saw Jean do some of the best lawyering I've ever seen to save another life. But I won't bore you with more war stories. We haven't worked together in years, but I know I can still call her anytime I need help. The point of this is to give thanks. I've become a fairly successful and, I like to think, respected criminal defense lawyer in this town. I love what I do. I can't conceive of doing anything else. But, to borrow a political phrase of a few years ago, I didn't build this. Jean Lawson opened a door for me. There are not enough words to convey what I owe her. Thanks Jean.