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.

A Tale of Two Lawyers. Well, Three, Actually.

During my last two years of law school, I clerked for a criminal defense firm in downtown Philadelphia. There were only two lawyers in the firm. They were both former public defenders in Philly. Our whole office was the two of them, me, and our legal secretary. We were right down the street from City Hall, where the Court of Common Pleas sat. We represented anybody and everybody. I loved working there.

The two lawyers I worked for were polar opposites. One was tall, black, smooth, and urbane. We'll call him Greg. His father was a renowned photographer for Ebony magazine, who snapped an iconic photo of Coretta Scott King at MLK's funeral. When I was working there, his passion for being a trial lawyer seemed to have cooled somewhat. He was dabbling in managing and promoting music, and when he found out I could rattle off all the lyrics to "The Message" by Grandmaster Flash and the Furious Five, he knew they had made a good choice in me.

The other lawyer was the reason I was working there in the first place. He was, in is own words, a "crooked-faced Irish kid". We'll call him Mike. Brash, a little loud, we had met when I was tending bar before I decided to go back to law school. But he was also incredibly well-read and fiercely proud of his Jesuit education. We struck up a friendship and he urged me to return to law school. When I did, he immediately offered me the opportunity to come work for them.

As I alluded to earlier, working there was glorious. We represented everybody: mobsters and drug dealers, petty thieves and murderers. I was tossed in head first, drafting memos, interviewing clients, tracking down witnesses. In my third year I routinely represented indigent misdemeanor clients. Working with Greg, I was meeting with local music producers and club DJs, trying to get new artists recorded and heard. Law school taught me how to go to law school; Mike and Greg taught me how to be a lawyer. (That tension between law school and work almost torpedoed my law degree as well, but that's another story for another day).

Mike was a trial lawyer. Period. Utterly fearless, possessed of a stamina and appetite for his work I have rarely seen. My last year, we undertook the capital defense of a black, male student at Lehigh Unversity charged with the rape and murder of a white, female Lehigh co-ed. Mike and I spent a night in a prison cell with our client, keeping him awake playing chess and talking about our families, in order for him to undergo a stress-related EEG. The trial was big news in the Lehigh Valley and tensions were beyond high. Mike never took a backward step. He fought every issue, every minute, every day. Every walk to the courtroom, every break, there were glares, insults, and threats of retaliatory violence. He never blinked.      We lost.        And the very next day he was back in the office working.

But he had his demons. As I mentioned, he was a hard drinker. He'd have occasional stretches of sobriety, but they never lasted. More than once, I had to have his back as we teetered on the edge of a bar fight, invariably outnumbered. And he was terrible with money. He got into cases for far too little money and, truth be told, probably couldn't afford to pay me or our great secretary Linda as much as he did.

They were great to me. Both of them. When an issue came up involving my Dad (again, another story for another day) Mike leaped in immediately to help. When my Dad died, Mike was there, tears in his eyes. "You're father was a great man", he told me. When I had the dust-up with my law school that I mentioned before, Greg, who was an alum of the same school, did not hesitate to throw his support behind me with the powers-that-be.

So. Two good men. Two lawyers. When I knew them well, one loved being a lawyer. Lived and breathed it. The other was more ambivalent. I graduated law school and Joni and I decided to move to Charlotte. I kept in contact for a time, with Mike more than Greg honestly. A few years after I moved, I heard that they had split and that Greg had been appointed the U.S. Attorney for the District of Delaware. I was so happy for him. When I had seen Greg work, he was an excellent courtroom lawyer, and now it seemed clear that he was back in the law. A few years later, Bill Clinton appointed him to be a Federal District Court judge for the District of Delaware. He eventually became the Chief Judge and is now Senior Judge for the District. He was the first African-American to hold each of these posts in Delaware. By all I'd read and heard, he'd performed in each of these positions admirably. Clearly, whatever, ambivalence about the law might have once plagued him, he'd grown past it and fashioned a laudable record.

Mike continued to slug it out in the trenches. I would occasionally take note of a high profile case he would be involved in. I smiled a few years back when I heard that he had been threatened with contempt for refusing to back down from a judge in the midst of a heated motion hearing. But then, late last year, I heard something else. Mike had been indicted. Charges of money laundering and witness tampering in conjunction with a drug operation whose main architects he had represented. At first I was convinced it was a prosecutor with a grudge, trying to strike back at and silence a formidable foe. But as I read the indictment, I could see that he was in serious trouble and it was clear the government had some serious ammunition. He went to trial on it. I knew he would. There was no way in hell he was cooperating. I am certain the thought never entered his mind. And he lost. Sentencing lags behind trial in Federal court, sometimes by a couple months. I dreaded looking up what he'd get. Just the other day, I forced myself to do so and found out he'd been given forty-two months. He's at Fort Dix Correctional as I write this. I'm going to write to him. If he'll let me, I'd like to go see him. He had my back and my family's back for years. It's the least I can do.

There's no moral to this story. There's not some great philosophical insight. But two men who had a great impact on me and my career have come to two very different end points. People are not just one thing. They are neither wholly good nor wholly bad. Life is complicated. There are good men who sit as judges. And there are good men who sit behind bars. You have to know their stories before you can decide. I felt the need to write this for a reason I can't even fully articulate. Maybe it's as simple as the old saying that we are neither as good as we are at our best, nor as bad as we are at our worst. But a good man is in prison. He did wrong. He made a terrible mistake. But it doesn't change the fact that he's a good man.

On Compromise

There is much discussion in recent years bemoaning a lack of compromise in our public life, in particular in our politics. Respected voices on all sides of the political dynamic have counseled for decades, if not centuries, that compromise is both necessary and prudent. Edmund Burke, viewed by many as the founder of modern conservatism wrote: "All government, indeed every human benefit and enjoyment, every virtue, and every prudent act, is founded on compromise and barter". Allow me to argue, at least as it relates to basic principles, that Mr. Burke vastly overstates his case.

Verdicts in criminal trials in most every jurisdiction I'm aware of need to be unanimous. That is, all of the jurors (usually 12) need to vote either "guilty" or "not guilty" for there to be a verdict. If unanimity is not achieved, a mistrial is declared and the case can either be retried or dismissed. In every jury selection I am involved in, I talk to the prospective jurors about the concept that it is imperative for each of them to make up their own minds individually. That, yes, they should listen to their fellow jurors carefully and test what they think and believe the evidence shows (or doesn't) versus what the other jurors think and believe. That they should do so with an open mind and not in an adversarial manner. But, that at the end of the day (or days) that each individual must make up their own mind. And that giving up what they believe in an effort to reach compromise or consensus would be wrong. That, in fact, is the law, at least here in North Carolina. I ask jurors if I have their assurance that they will make up their own mind and that they won't simply "go along to get along".

I had that discussion with the potential jurors in the case I was trying this past week. Those I pressed on the issue assured me that they understood the importance of the concept and firmly believed it and supported it. And then the rubber met the road. After all the evidence was in, we gave closing arguments. Closing and cross-examination are the things I do best at trial, and I nailed this one. It was a very difficult case from a defense perspective, but I had won an important evidentiary motion early in the case and closing clicked. After you do this for awhile, you know when it's good and when it's just OK, and when I sat down I knew this one was good. What on first glance looked like a case the State would easily win, was now a battle. The jury was out for over 5 hours, which is pretty lengthy for a breaking and entering and larceny case. Once the clock passed 4:30, I started to get tense. Every defense lawyer who has tried enough cases knows that the time in between 4:30 and 5:00 is a dangerous time. You are reaching the end of the day. If there's not a verdict by 5:00, the judge is going to send the jurors home and bring them back the next day. I've had juries come back literally at 5:00 on the nose with a guilty verdict. Sure enough, at 4:45, we got word that there was a verdict. I still had hopes that I had pulled out an acquittal, but "5:00 verdicts" are almost always guilty. The jury was brought in and the clerk began to read the verdict. On the charge of larceny after breaking and entering, "not guilty"! A brief moment of hope. And then, on the charges of breaking and entering and conspiracy to commit breaking and entering, "guilty". Son of a ..........! A compromise verdict. Without boring you with detail on the elements of the crimes and the law of acting in concert, suffice it to say there is no logical way for a jury to reach those verdicts. What had happened, clearly, was that the jury was split and, rather than come back the next day and continue deliberating and, maybe, never being able to reach a unanimous verdict. they compromised and rendered an inconsistent verdict (as a side note, inconsistent verdicts are not legally improper).

The problem, of course, is that the jurors weren't trying to decide where to go to lunch. They were debating about a person's freedom. There are times to compromise. Lots of times. Many times. Not just on inconsequential matters either. But there are times when the principle is more important. I have no wisdom on when that line is crossed between very important matters and matters of principle. All I know is, jury deliberations in a criminal case is one of those times. So, no, Mr. Burke, every virtue is not founded on compromise. Sometimes compromise is the absolute antithesis of virtue.

Reefer Madness

Many of you, probably most of you, are aware of the protests and sporadic violence here in Charlotte surrounding the killing of Keith Lamont Scott. The issues raised by that incident and what has resulted from it are far, far too complex to deal with in one blog post. But, did you know that, according to police accounts, what first drew their attention to Mr. Scott was that he was smoking a marijuana blunt. Those officers were there to serve a warrant on another man. But Scott's rolling and smoking a blunt was enough to draw these officers' attention.

My last blog post was on the murder trial I just lost. That incident revolved around the sale of one ounce of marijuana. Four people were touched by that incident. One is dead, one is in prison for the rest of his life, one is in prison for the next 40 years, and one has four bullets in his body that will be there for the rest of his life. Because of one ounce of marijuana.

Marijuana has proven medical benefits for pain management, treatment of PTSD, nausea, glaucoma, and perhaps other conditions. But it is the dreaded "killer weed"; it is the feared "gateway drug". It ravages youth and turns them into drug fiends. So, for decades, the U.S. has engaged in prohibition. And, as with all prohibition, created a huge, profitable, and incredibly dangerous black market. That kills thousands. Oh no, not through use of the drug. There is not a single, documented case of anyone every dying from marijuana overdose (compare that to alcohol). Yet, once again, for all the talk about de-escalating the "war on drugs", the DEA refused to reschedule marijuana. It is still a Schedule I substance under the Federal Controlled Substances Act. Schedule I is like the supermax prison of controlled substances. It is supposed to be for drugs with a "high potential for abuse" with no "current accepted medical use"; drugs so dangerous even your doctor won't be able to help you if you come in contact with it. Which guarantees that, at least at the Federal level, complete prohibition will remain the order of the day. Which guarantees more violence. Which guarantees more dead bodies and bodies in prison forever. But not because of what the drug does, but because of how we treat it.

Colorado legalized the use of recreational marijuana for adults. The doomsayers predicted the youth of Colorado would fall helplessly, en masse, to the evil weed. Statistics show otherwise and, in fact, teen use of marijuana in Colorado is slightly below the national average. Those who argue that marijuana is a gateway drug point to studies that show a correlation between marijuana use and other drug use. But those correlations exist with alcohol and tobacco as well. And the vast majority of marijuana users do not move on to other drugs.

Drug abuse, in all its forms, takes a huge toll on some people. Of that, there can be no doubt. But does that mean that treating use of the drug as criminal activity helps? Well, Portugal decided to see what would happen if you answered that question "no". And not just with marijuana but with ALL drugs. All drugs, in low-level quantities, were decriminalized in 2001. So there is a 15 year chunk of data to look at. I have a link to the study below, but the short answer is that drug use in Portugal has dropped significantly, such that it is one of the countries with the lowest prevalence of use of most formerly illegal substances. There is a catch, however. Portugal, at the same time, invested in serious treatment alternatives for those who have issues with drugs and alcohol.

So, just in Charlotte, just in my little world, the prohibition on marijuana demonstrably leads to death and destruction. The data that lifting that prohibition would help remedy some of that death and destruction seems promising. But we refuse to open our eyes and see.

If you are interested in reading further, these were sources for some of what you just read:
http://www.leafscience.com/2014/07/22/7-proven-medical-benefits-thc/
https://www.drugabuse.gov/publications/research-reports/marijuana/marijuana-gateway-drug
http://www.scientificamerican.com/article/colorado-s-teen-marijuana-usage-dips-after-legalization/
http://reason.com/blog/2016/08/11/dea-rejects-marijuana-rescheduling-but-e
https://www.drugpolicy.org/sites/default/files/DPA_Fact_Sheet_Portugal_Decriminalization_Feb2015.pdf

On the job...and on losing.

I've been asked in the past why I choose to do this for a living. For someone who talks as much as I do, I find it curiously hard to articulate exactly what it is. I can only somewhat describe it by using the words of others. Most often, I use a quote from the high-wire artist Karl "The Great" Wallenda: "Life is on the wire. The rest is just waiting". There is also a passage in a poem by Robert Frost that resonates inside me as well:

Only where love and need are one
And the work is play for mortal stakes
Is the deed ever truly done
For Heaven and the future's sakes

It's days like today where you really get to find out if you're being honest with yourself. I lost today. After almost 5 hours of deliberation, a jury decided the State had proved its case beyond a reasonable doubt. I lost a case I thought I had won. I lost a case that could have been won. And because I lost this case, a young man will spend the rest of his life in prison.

Why did I lose? I'm not really sure at this point. Many courtroom observers, including several with no need or inclination to curry favor with me said I tried an excellent case, that I "did all I could". But that can't be true. Because I lost. And if I'm going to keep doing this, I have to do better. I cannot lose cases that could have been won. I cannot accept that. Not when lives and futures are on the line.

There is no time to wallow. There may be time for a few drinks, but that's it. I know I am very good at this, but I'm still not good enough. "The game is play for mortal stakes". Those are still the stakes I have to play for--I cannot play a smaller game. But I cannot accept a loss. Cannot.

Oh, NOW Chuck Todd's Outraged.

Once again, there is all sorts of sound and fury concerning Hillary Rodham Clinton, e-mails, and the FBI. This piece is not going to be a direct discussion in any detail about the results of such investigation or the FBI's release of information (suffice it say, I read it all, and it appears to be yet another tempest in a teapot). Rather, I want to focus on the reaction of Chuck Todd, Ron Fournier, and, I'm sure, lots of other pundits and journos to a specific aspect of FBI procedure. It certainly has them in a dither. 

It seems that during the course of the investigation, the FBI interviewed Secretary Clinton. Messrs. Todd and Fournier, appearing on Meet the Press Daily, were outraged that there was no audio or video recording of that interview. Todd had this to say: "It bothers me as an American citizen. It's insane. We're relying on notes on this. The Trump campaign wants to show [Clinton] lied to the FBI. Maybe she did, maybe she didn't . We have no proof. And never will'. Really? No proof? Isn't that interesting. Let's unpack this shall we?

The FBI during the course of its work does lots of interviews. None of them are recorded. None. By any method--audio, video, stenographer, nada. The FBI agent takes notes, then prepares a report, commonly called a "302" (the number of the form). And that's it. The actual notes are usually destroyed shortly thereafter. So, let's imagine a situation where your client (or family member) is interviewed by the FBI. And then let's imagine that the FBI agent's 302 says your client confessed to a crime. But, your client insists that is not the case (Side note: what law-enforcement characterizes as a "confession" can be pretty damn creative). How do you combat that? Well, gosh, all you have to do is persuade a jury that your client is telling the truth and the FBI agent is lying. Sure. Easy as pie. Juries believe those charged with a crime over FBI agents all the time. You see where we're going here, right?

This has been going on since forever. Ask any criminal defense lawyer who has ever set foot in Federal court. There are thousands of people doing serious time based entirely on the testimony of FBI agents, with no recordings to verify. But, NOW, oh now, the Chuck Todds and Ron Fourniers of the world are outraged, outraged I tell you. Why, that's not proof, they bellow. They say they can't make up their mind whether Clinton lied to the FBI based just on the notes and the 302s (it seems the notes were preserved in this case, which, again, if more than you usually get). But I've never heard or read anything by either of them or the news organizations they work for expressing any outrage whatsoever when the same level of "proof" sends predominantly poor people of color to prison, sometimes for the rest of their lives. 

Jeff Sessions and the Law & Order Flim-Flam

So, for better or worse, I'm back after a long absence. And what I want to talk about is "Law & Order". No, not the lousy TV show (don't hate, but it's terrible). But rather the favored topic of the GOP nominee, Donald Trump, and his main Senate surrogate, Jeff Sessions.

Now, let's be clear about one thing. "Law and Order" is a time-honored mantra of (usually conservative) politicians to scare nice white folks. Period. But the racial aspect of it is secondary to what I want to talk about. On August 3, 2016, President Obama commuted the sentences of 214 Federal inmates. Most of them were drug offenders, a small number had gun offenses. Like clockwork, Sen. Sessions sent up the "Law and Order" alarm. According to Sessions, the President's action was "reckless". Now, bear in mind that there are 193,299 Federal inmates. So 214 is .11% of the Federal population. Note the decimal point. Not 11%, but .11%. We're not exactly talking about throwing open the prison doors here. "Reckless" is an absurd description.

But Sen. Sessions was far from finished. He went on to state that those who were released were not "low-level, non-violent offenders, which simply do not exist in the Federal system". Do not exist. None. None at all. The guy who I represented who never met any of the top dealers in an oxy ring and in controlled buys over three years only had user-level quantities on two occasions must be a figment of my imagination, because Sen. Sessions says he "simply do{es} not exist in the Federal system". Ask any lawyer who has been involved in a drug conspiracy prosecution in Federal court about Sen. Sessions' statement. You'll have to wait for them to catch their breath after they're done laughing. The Federal prisons are FULL of low-level, non-violent offenders. Hell, it's what the Feds specialize in.

And the hits just kept on coming. Sen. Sessions stated that the commutations were poorly-timed because "violent crime is rising across the country since 2014". Understand that violent crime in this country has plummeted since 1991. Violent crime rates dropped 51% from 1991 to 2013. 2013 and 2014 are the lowest crime numbers this country has seen since before 1970. Did crime numbers creep up slightly in 2015? In some cities, yes. In others, no. But you are talking about very small increases from historic lows. In the first quarter of 2016, the murder rate in NYC is the lowest it's been since they have been tracking the numbers. So the hellscape that Sen. Sessions was clearly trying to imply is far, far from the truth. But what's the truth when there's fear to be stoked?

Not content with those misleading statistics, the good Senator from Alabama trotted out some more. He claimed that there is a 66.2% recidivism rate for Federal inmates. I searched for documentation of this claim and was unable to find any. What I did find was the March, 2016 report "Recidivism Among Federal Offenders: A Comprehensive Overview", published by the U.S. Sentencing Commission. That report gives you different numbers, depending on your definition of "recidivism". If you mean that the person is charged with another crime, that rate is 49.3%. But if you mean if that person is actually convicted of another crime, that rate is 31.7%. The actual conviction rate is the one you should be looking at, and even that is misleading, but the reasons for that are the subject of my next blog post, so you'll just have to tune back in. Suffice it to say that Sen. Sessions is greatly exaggerating the actual recidivism rate.

All of this completely ignores that most crime and punishment are dealt with in state courts, and that the President and the Congress actually can have little effect on any of that. But that has never stopped national politicians from demagoguing the issue. It is unfortunately enjoying a revival in this campaign year thanks to The Donald, ably assisted by Jefferson Beauregard Sessions, III.

If you are interested in more information about any of the quotes or statistics in this piece, the following articles and/or studies were used:
http://www.foxnews.com/politics/2016/08/03/obama-commutes-sentences-for-214-federal-prisoners.html
http://dailycaller.com/2016/08/05/sessions-on-obama-commuting-felons-sentences-president-playing-a-dangerous-game/
http://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-publications/2016/recidivism_overview.pdf
https://www.bop.gov/about/statistics/population_statistics.jsp
http://www.brennancenter.org/blog/americas-faulty-perception-crime-rates

Movies, Military, and "Patriotism"

The movie "American Sniper" had a huge opening week at the box-office. That seems to have alternately made some people very happy and some people very unhappy. Not because of Clint Eastwood's directorial skill, or Bradley Cooper's acting skill (or the lack of either) but because of what they think the movie says about America and all the baggage that goes along with the notion of "patriotism".  War movies, to some extent, have always carried this baggage, especially since Vietnam. As usual, I'm here to try and piss everyone off, whether you loved or hated the film.

May I suggest that the following list of propositions can all be held simultaneously, and consistently:

1. Clint Eastwood is an excellent director and Bradley Cooper is an excellent actor. As such, I am under the assumption that "American Sniper" is an excellent, well-made movie.
2. Movies very rarely are completely historically accurate. That is why they are "movies" and not "documentaries".
3. It is not necessary that one agree with a movie's point of view to recognize its artistic merit (i.e "Birth of a Nation", "Triumph of the Will", etc.)
4. The American military is, generally speaking, made up of very good people who perform their duties with professionalism and honor.
5. As with any profession, there are individuals in the American military who do not rise to that level of professionalism and honor, likely for a myriad of reasons.
6. Chris Kyle, the author of "American Sniper" was, by all accounts, an excellent marksman, exhibited personal bravery in the Iraq War, and likely saved the lives of numerous of his fellow soldiers.
7. Outside of his military life, Kyle was a habitual liar who concocted stories of supposed exploits that served to either help him sell books, propped up his self-made image of a bad-ass, or, more likely, some combination of same. Additionally, it appears that he and his widow actually donated very little of the proceeds of his book to charity, despite claims to the contrary. This is fair game, as he made himself a public figure.
8. The Iraq War was a war of choice for America, premised upon, at best, lazy or sloppy analysis of questionable intel.
9. As such, the Iraq War did not (does not) protect America's "freedoms" in any tangible way.
10. As such, there is little basis to claim that Kyle, or any military personnel involved in the Iraq War, was "protecting America's freedom".
11. Note, the preceding statement is not a personal criticism of Kyle or any military personnel involved in the Iraq War (at least any below the rank of General), nor does it detract from whatever bravery they exhibited in such conflict.
12. Criticism of "American Sniper", Chris Kyle, the Iraq War, the use of or tactics of the American military in any conflict, does not demonstrate a lack of patriotism, nor is it any commentary upon or degradation of, the particular service of any member of the American military, past, present, or future.

So, if you've read the book and enjoyed it, good for you. Just know a lot of it is fiction. If you saw the movie and enjoyed it, good for you. Just know a lot of it, too, is fiction. If you hate everything about the movie, good for you. Just know that most of the American military do their best under trying circumstances and don't get a vote in what war they fight, so don't paint with too broad a brush. Oh, and Chris Kyle, like most people, was neither all saint nor all sinner. Like most folks, he was a maddening mix of both.

Zen and Hardwood Floors

I have been regaling my friends on Facebook for the last few days with pictures and updates on a project my wife and I undertook to put a hardwood floor down in our den. As of about midnight last night, the construction was complete (a small piece of quarter round and a threshold cap have to be tacked down, but why quibble). As I was falling asleep last night, I kept coming back to something I had said to my wife earlier in the evening: "There's nothing like finish carpentry to keep you humble". I had said that after screwing up a miter cut on a piece of baseboard and having to re-do the entire piece. But I could have said it about construction as a whole. And the project reinforced and reminded me of some of the things that it is easy to forget in your day-to-day life. At least I forget them all the time.

Construction mandates precision. Or, should I say, good construction mandates precision. If you are off on your measurement, your cut, or any step along the way, your end product looks like hell. Or doesn't work at all. I remember one of my first ironworking jobs as a kid. We'd put up the girders and I-beams for a floor, and bolted them into place. Then, we strung heavy cables between the spans and used turnbuckles to crank the huge pieces of metal into plum. It ain't easy and takes a lot of muscle. I remember us being about a half -inch off on one and saying that that seemed close enough. The journeyman I was working with said (I'll excise the incredible profanity every sentence by an ironworker contains) "@#$(# kid, if every floor is half a #*@&$ing inch off, by the time we get to the top we'll be two @#*ing feet off).

So it was on this project. Every time my attention would wander, there would be a mistake. Sometimes that mistake would not reveal itself until it messed something up further along. Then you have to go back, find the mistake, and fix it. You have to stay in the moment and sweat the details. Cursing doesn't help, whining doesn't help, getting angry at your partner doesn't help. Trust me, I tried all of those. You have to pull it back, center, and focus on the task at hand and nothing else. Zen. There is a classic Zen aphorism, "before Enlightenment, chop wood and carry water; after Enlightenment, chop wood and carry water". In other words, the path (or the Way as some Zen philosophers term it) lies in paying attention to what is in front of you, and being fully in it. Doing it as well as you can, no matter its simplicity. If you are a fan of the old TV show M*A*S*H, in one episode someone asked the arrogant but brilliant surgeon, Dr. Charles Emerson Winchester, why he was such a great surgeon. His reply was "I do one thing at a time, I do it very, very well, and then I move on." In "The Book of Five Rings", a classic of martial arts literature, Miyamoto Musashi lays out nine precepts that the warrior should follow. One of those is: "Pay attention, even to the simple things."

Every job is like that, or can be. In my law practice, when I focus on the details, the big picture is always clearer. The police reports and witness statements have to be read again and again, because just because a cop says someone "confessed" does not make it so when you read it or listen to it. The pictures have to be looked at carefully and completely. I saw evidence of rigor in a picture once that I thought I had looked at three times before, and it changed the whole defense. And, at the most basic, you have to read the statute and see what it actually says, not what you "know" it says because you've been doing this so long. Focus, stay in the moment, pay attention to each step along the way. The end result will take care of itself. Good things to remember. And I got a pretty nice new den floor out of it, too.

Kaci Hickox--American

I have watched with fascination and, more and more frequently, outrage at the way Kaci Hickox, the nurse who had ventured to Sierra Leone to help treat Ebola patients and has now returned to the U.S., has been treated by the governments of New Jersey and Maine and by what appears to be a majority of the American public. At the risk of sounding like the stereotypical crotchety old guy (which I guess I am at this point of my life), what the hell has happened to America and Americans? When did we let fear shrivel us to this point? Kaci Hickox has demonstrated, and continues to demonstrate, the traits that I grew up believing embodied the best of America, and is being pilloried for it.

What makes an ideal American? What are the attributes that go into why the vast majority of our citizens, if you ask them, consider America "exceptional"? Consider just a few: courage, compassion for others, independence, a refusal to be bullied by the state (or anyone else). Kaci Hickox voluntarily went to one of the most dangerous places in the world right now, where health care workers like her are dying at alarming rates. I don't know what she got paid to do so, but I guarantee you it wasn't enough to convince me or most of you to do the same. She did so to help other people--to help them live. The word "hero" gets thrown around far too often these days. Well, Kaci Hickox and the people who are putting their lives on the line in order to try and stop Ebola from becoming a pandemic are heroes. So, courage? Check. Compassion for others? Check.

After doing all this, Kaci Hickox returns home. You know, to "the land of the free and the home of the brave". And didn't find much of either. She did the responsible thing, and told authorities that she was returning from West Africa and had been there helping treat Ebola patients. And the freakout commenced. Despite being completely asymptomatic, she was immediately treated as one of the unclean. Let's pause here for a second. If you are unwilling to accept the opinions of the experts that Ebola is not airborne and that a person with Ebola is only contagious when they are exhibiting symptoms, then just stop reading. It is better that you and I don't waste each other's time. The current American penchant for ignoring science is equally disturbing, but you cannot have a rational discussion of Ebola and ignore the doctors because you're scared. Professional bully Chris Christie then tried to make himself look like a man of action (don't get me started on Andrew Cuomo) and locked Hickox up. No, that is not an overstatement. That's what a quarantine is. Your 1st Amendment rights to assemble and travel, your 4th Amendment right to due process, arguably your 8th Amendment right to be free of excessive bail and cruel and unusual punishment are all summarily taken away. But, but, the public health,you say! I repeat, she is completely asymptomatic. There is not a shred of evidence that she has the disease, even in latent form. But Chris Christie being Chris Christie, bullied forward. And Kaci Hickox called him out. As Hickox's boyfriend said, "he messed with the wrong redhead". She contacted Norm Siegel, one of the better civil rights lawyers in the country and said she was going to sue. And, in the true way of all bullies, Christie caved while maintaining that he hadn't. Hickox then returned home to rural Maine, where she was met with more bullying by the equally blustering governor of that state, Paul LePage, who has threatened her with men with guns if she doesn't kowtow. But she hasn't, and I suspect she won't.

Now, I fully expect the Chris Christies and Paul LePages of the world to try and score cheap political points by being posturing blowhards at every opportunity. What I didn't expect was the public response. What I didn't expect was the vitriol being spewed at Hickox. What I didn't expect was the immediate willingness of what seems to be the majority of the American public to  give in to unsubstantiated and groundless fear. But maybe I should have. In response to 9/11, we allowed the Patriot Act, and continue to allow its renewal. We allowed people to be locked up indefinitely, with no charges, no lawyer, and no hope of ever getting out. We tortured people. America seems to be afraid of everything and everyone anymore, and we don't care what we do as long as it makes that fear go away for a little bit. We let Chris Christies (and, yes, Andrew Cuomos, this is not intended to be a partisan rant) ignore the basic rights that, in fact, are what DOES make America exceptional. And we say and write hateful things about someone who should be a shining example of what America is supposed to be about.

Slippery Slopes--Redux

Talk about instant gratification. I write one simple blog post and immediately 28 Harvard Law professors publish an Op-Ed in The Boston Globe saying "What that Trobich guy said? Ditto!" Well, maybe that's not exactly what they said, and I am quite sure not a one of them read my blog, but that's my story and I'm sticking to it. Regrettably, almost simultaneously, Ezra Klein of Vox.com, a journalist whose work I generally think highly of, wrote a piece demonstrating that the concerns I (and the Harvard profs and others) am expressing are true.

The entire Op-Ed by the Harvard profs can be found here, but the bottom-line is that they are very concerned that these new policies overreach, and that the due process rights of the accused are getting trampled-upon in the process. Now, again, let's be precise here. The only entity that you have a "right" to due process from is the government. I have made the point in another post that most people mistakenly believe that Constitutional guarantees like free speech (and due process) means that you get that right anywhere and everywhere. You don't. Let's be clear, there is nothing "Unconstitutional" about these policies. But while an allegation of sexual assault to a university is not the same as being charged with that crime, the seriousness of the allegation (and the likely life-changing result of the allegation alone) warrants every bit the amount of due process that the Constitution guarantees you in a criminal court venue.

So far, so good, right? The various Harvard profs have awakened from their academic slumber and seen fit to take a stand. Yay. But almost at the same time, Klein was writing a piece that, I submit, should scare the crap out of you. Put simply, Klein acknowledges that the "Yes means Yes" law just enacted in California is "a terrible bill", but in his opinion "a necessary one". As I said in my earlier post, I am as staunch a defender of feminism as you will find. My two daughters are the pride and joy of my life, and if anyone ever hurt them in any way well, there's a reason why one of my daughters' friends said that when they saw "Taken" with Liam Neeson they thought of me (see below). When Klein speaks of "a culture of sexual entitlement" that is "built on [women's] fear", I agree with him completely. But this is not the remedy. Klein says, approvingly, that to work, "Yes means Yes" has to "create a world where men are afraid". And, most disturbingly, the cases where men are "convicted" from a truly ambiguous situation or, worse, completely concocted allegations, well, according to Klein, "that's necessary for the law's success". He's willing for some (in his assertion "very, very few") to be ruined for the greater good.

No. That can't be. If that's the solution, then we need to keep the disease. Surely there is a better way to tear down the very real issues of sexual entitlement/harassment/assault. There has to be.


[If you somehow don't know the movie "Taken" with Liam Neeson (heck, they're about to come out with "Taken 3") here is the near-iconic scene of Neeson assuring those who have kidnapped his daughter of their fate]

The Slipperiest of Slopes

This is a hard one. Any one who knows me even a little knows I am an ardent backer of feminism. Few things provoke a more visceral hatred in me than men mistreating women. I abhor "guys being guys" and talking about women as if they are simply a sum of their physical attributes, making sexist and derogatory remarks when faced with women who are smart, strong, and accomplished. I tried to raise my daughters to be such smart, strong, and accomplished women (in part, by marrying one) and trying to teach them that they take a back seat to no one. They were never to worry about being too smart in school or too tough on the athletic field. They could wear what they wanted and say what they wanted, and any male who had a problem with any of that wasn't much of a man and was certainly not worth their time. And, most importantly, no male (I purposely do not use the word "man" here) had any right to put their hand on them if they did want him to, and that if he persisted, to use whatever force or tactic they saw fit to stop it. So, when discussions turn to sexual harassment and assault, my first inclination is to assume some guy is being an ass (or worse). BUT..........

I am also a criminal defense lawyer. The concept of "innocent until proven guilty" is so ingrained in me as to be almost organic. There are few things worse than the prospect of an innocent person being punished for something they did not do. And, yes, false allegations of harassment, assault, and rape do occur. I've been a part of several cases where they were. BUT.....

In response (at least partially) to demands from feminists and their allies to do more about sexual assault, especially in the military and on college campuses, the noxious "Men's Rights" movement has gathered steam. Most of those who write on such topics are clearly misogynists, or simply those hoping to gain some extra print columns by making provocative but inane arguments (i.e. James Taranto of the Wall St. Journal). Many of the arguments fall back on the pseudo "guys being guys" type of argument and assert that it's essential for males to act like boors in order to be good soldiers, or not feel emasculated somehow. I chalk those up under the heading of "bullshit arguments by losers". BUT.....

There is a movement, which the Obama administration has supported, to attempt to assist alleged victims of sexual assault on campuses to seek redress. And here's where the slope has started to get pretty slippery. First, this movement purports to address the assertion that 1 in 5 women will be sexually assaulted while in college. The problem is that the basis for that assertion is shaky. But even if the numbers are correct, the proposals are still pretty troubling. The most troubling for me is that it starts backwards--that is, it assumes that the allegations of assault are true, and shifts the burden of proof to the accused. Secondly, it is beginning to chip away at what constitutes "rape". When you are talking about prohibited conduct, definitions are important....real important. California recently passed an "affirmative consent" law, which means that in investigating sexual assault on campus, universities are supposed to determine if there was "an affirmative, conscious, and voluntary agreement to engage in sexual activity". How exactly does one prove or disprove such a standard? It is hard enough in "traditional" rape cases, where force and intimidation often don't leave any outward signs, yet the lack of such outward signs are brushed off as even beginning to constitute a defense. And, even if not a court of law, do you want someone to wear the stigma of being a "rapist" with such a vague standard?

As I said at the start, I hold few persons in more contempt than males who abuse women, in whatever form that abuse may take. But this new direction is fraught with peril. And I think it's a bad idea.

It's Not About You

A lesson that I learned long ago, but which is easily forgotten, was brought back to me the other day. A young man I represent is charged with several very serious crimes. If convicted at trial, he faces the likelihood of spending most, if not all, of the rest of his life in prison. He just turned 19. The State has what appears to be substantial evidence. Last week, at the last moment, he balked at accepting a plea offer. It was not a remarkably generous plea offer, but it would have resulted in him getting out of prison while still being a few years younger than I am as I write this (and, contrary, to my son's opinion, I ain't old). The offer is now off the table. We go to trial next week.

My immediate reaction was a mixture of frustration and anger. Couldn't he see the choice he was making? Couldn't he see the logical, rational decision was to take the plea that I had fought long and hard to get? What am I going to do now? I'm going to get killed at trial. Several people came up to me afterward, all murmuring consoling phrases. After a bit, though, I stopped and thought about it. What the hell was I frustrated and angry about? This is not about me. It's about my client. He's made a choice. Whether I agree with it or not is no longer the point. He made it. And my job is to fight for him as hard as I possibly can. So there's no time to wallow about, criticizing my client's choices, bemoaning the task I have facing me. It's certainly  not the time to go through the motions, put in a perfunctory performance, knowing the realities of what may likely happen. If you do that, everyone will pat you on the back and say, "hey, you had nothing to work with".  Pardon the language: Bullshit. What it is time for is to focus on the fact that a young man has only me between him and perhaps a lifetime in prison. It's about him at this point, and it's my job to do everything I possibly can to help him.

So let's go. We're coming out, guns blazing. Every issue is going to be a fight, no matter what. No concessions, no quarter sought or given. Because I'm all he's got left.

Hope Solo, Ray Rice, Adrian Peterson: Same Thing, Only Different

By now I am sure you have heard (and seen) quite a bit about both the Ray Rice and Adrian Peterson situations. Roger Goodell, The NFL, and the Baltimore Ravens have all performed like craven and inept buffoons in the Rice matter. The Minnesota Vikings' vacillations on Peterson would be comical if the topic were not so serious. But this is not a post about them. Nor is it about the ways a large part of our culture is premised on misogyny (another day, perhaps). Nor is it a discussion of the nature and scope of parental discipline (although, as a caveat, I will note that the protestations of those such as Sean Hannity, Charles Barkley, and others that "my mother/father beat me and I turned out fine" suffers not only from defects of logic, but from faulty premises).

No, this is about those situations in the NFL and the comparisons some are making to the situation of Hope Solo, the goalkeeper for the Seattle Reign of the NWSL and, more importantly, for the U.S. Women's National Team, which is in the midst of preparations for the Women's World Cup next year. To say that Solo, who many (myself included) consider the greatest women's keeper of all time, is important to the U.S. team's chances is an understatement

But, there is a complication. Solo is a mercurial and volatile talent who, frankly, does not care one whit what others think of her, including her team. It is my opinion that this trait is part of what makes her great. She plays with an arrogance and swagger that intimidates opponents and seems to make her immune to big game pressure. But it often leads her to trouble off the field. There were allegations of domestic violence by her against her then-fiancee, now-husband, ex-NFL player Jerramy Stephens (who has his own demons). Nothing came of that incident and Solo did not pursue it. But earlier this year, Solo was charged with assaulting her half-sister and 17 year-old nephew at a birthday party at her house. There was alcohol involved (shocking, I know) and by all accounts it was quite a scene. Solo has plead not guilty and is awaiting trial. U.S. Soccer has allowed her to keep training and playing with the team while the legal situation plays out.

You are now hearing calls for Solo to be taken off the team and/or not be permitted to play, a la Rice and Peterson. There are cries of a "double standard". I even saw one particularly unhinged commenter state that the fact that Solo was being permitted to play and Rice and Peterson were not was evidence of a "leftist, feminist attack on the NFL".(Because nothing says free-market masculinity like beating women and children, am I right? But I digress.) But are the situations comparable? I would argue not. Not unless your position is that any athlete charged with any crime must sit until their legal situation is resolved. Yes, the alleged victims are family members of Solo's, so technically this falls under the heading of "domestic violence". I even heard one commentator, who I generally like, refer to it as "child abuse", since the nephew is 17. But this is not domestic violence, and it is not child abuse. The sister and nephew do not live with Solo. They are not financially dependent on her, and there are obviously not issues of emotional/romantic/sexual dependency.

Domestic violence and child abuse are real, they are far more prevalent than the public realizes, they are often covered-up, minimized, and rationalized, and they are a significant precursor to a startling percentage of the homicides and sexual assaults in the U.S. But it is the unique and intimate nature of those relationships that makes them so fraught with peril. Solo's situation is not the same. To call her situation "domestic violence" and "child abuse" is to cheapen those terms. Again, if your position is that any athlete facing any criminal charge should not be permitted to play, well, that's another discussion for another day. But don't try to sell the false equivalency of Hope Solo, Ray Rice, and Adrian Peterson