Alan Arkin on Acting (and Lawyering?)

Ever since I had the chance to attend seminars with Josh Karton, (the actor and writer turned trial lawyer instructor) I've been fascinated with how much lawyers can learn from actors. After all, when we're in trial, why not apply the techniques of the people whose specialty is captivating a live audience? Why try to reinvent the wheel in the courtroom when the techniques of the stage translate so well?

Josh Karton assisted Neil Kaytal before he argued Hamdan v. Rumsfeld before the Supreme Court and reportedly was able to get the brilliant law professor to be much more persuasive by placing nine of his kids' teddy bears in chairs before him during "warmup" arguments. This got the obviously extremely intellectual law professor to speak much more like he would if he'd been at home, telling his wife and kids about why the case was so important, rather than as a law professor making his first Supreme Court argument.

Some will laugh at that idea, thinking that the Supreme Court makes it's decisions purely intellectually, having no time for theatrics, "tricks," or teddy bear talk.

But you can't argue with the result, as Hamdan represented one of the most decisive blows to the excesses of the Bush administration thus far.

So I've tried to read up on the subject (even though an author I love, Anna Devere Smith, accurately says that "talking about acting is like dancing about architecture") and came across a book called "The Actor Speaks:Twenty-Four Actors Talk About Process and Technique" which features interviews of actors discussing their craft. The best interview is that of Alan Arkin, and includes this quote:

“The only time I was able to have a good time was when I got to the point in the role was playing me. When I wasn't acting anymore. It happened to me for the first time I was 19, and I became a junkie for that experience. The driving force, not only of my work of my life, is that experience. When you're not doing it anymore, it's just happening. You were just off somewhere in the sideline going “ Go, Go! Don't stop! It's okay!” Doing 50 things you never did before and that you’ll never do again. It’s playing you. The first time it happened was a play... I was playing something that I had no understanding of it all, a soldier home on leave, a husband and a father -- none of which I had ever experienced. I killed myself on the production... Then in one of the dress rehearsals, I went on stage, and I was no longer there. The character was there, and I just had to get out of the way. It was like downhill skiing on an endless perfect run, or surfing the perfect wave in Hawaii. Someone once asked me if it was an out of body experience. It never occurred to me that it was but the way people describe it, it feels that way. I felt like it was 40 feet away watching the performance. All my critical faculties were off with my observer, but onstage there was nothing but the character. Both of those people were me.

What took me years and years to find out was that this experience could happen to anybody in any walk of life. I became a junkie for acting, because I felt that the power of that experience lay in acting. It took years to discover that it didn’t lay in acting, it lay in me. Experiences like that cannot happen unless you are deeply devoted to whatever you're pursuing.”

I've been trying to become a good trial lawyer since I believe in the "role" trial lawyers play and also because I've found what my trial ad teacher told me to be true. He said something to the effect of "It's often a lot of work but unlike some other areas of the law, it's occasionally exhilarating."

But I've also found it true that the "experience" is rarely "exhilarating" unless I'm "deeply devoted to whatever [I'm] pursuing."

This experience reminds me of something Josh Karton said when I had the opportunity to work with him at Trial Lawyers College. I don't remember the quote exactly and haven't reviewed my notes in awhile, but remember him saying something like: "When you care about the audience's experience more than your own, something magic happens."

Doesn't Karton's advice sound like it will take you to that place Arkin described when he "felt like it was 40 feet away watching the performance."

As lawyers it's not about us, it's about the client, but if our "performance" motivates the jury and thus helps the client, don't we all need to realize what took Arkin "years and years to find out", that the experience of really connecting with an audience and using your own exhilaration to help your client win "could happen to anybody in any walk of life," even a lawyer whose law school experience probably taught her to check her emotion and heart at the door of the courtroom?

Please Don't Label My Client

Last week I caught a portion of an NPR show called The Parents Journal which featured Dr. Scott Shannon, author of Please Don't Label My Child. The book's subtitle gets closer to its real point: "Break the Doctor-Diagnosis-Drug Cycle and Discover Safe, Effective Choices for Your Child's Emotional Health"

At first I thought this was another John Rosemond wannabe, simplifying a complex problem into a simple solution and who was probably more of a political commentator than a true child advocate. But I was wrong. It was a story he told that convinced me he was truly onto something. I haven't read the book, but the story reminded me of a lot of delinquents who have their symptoms treated but sometimes aren't able to address the root of their problems.

Dr. Shannon described a child being referred to him who was exhibiting a lot of behavior problems in school. After diagnosing him as something along the lines of "oppositional defiant" the doctor prescribed mood stabilizing drugs and the kid's behaviors improved greatly. End of story? Nope, not quite.

Shortly thereafter the kid disclosed ongoing sexual abuse, meaning that the behaviors weren't organic, but were more like a pool ball responding to being struck, repeatedly, by an outside source. In "numbing" the child's behaviors rather than getting to the root of them, the doctor was confusing causes and effects, and perhaps allowing the continuance of an abusive situation for a young child.

So that's what brought the book about. It reminded me of the juvenile delinquency client who disclosed to me that he'd been sexually abused by an older relative. Until we learned this, we treated the symptoms without realizing that they were responses to abuse and not manifestations of delinquency.

I haven't read the book yet, but I wonder how many other kids are "treated" this way: comfortably numbed and blamed, even sent back to abusive situations when the focus is on them and not on the source of the behavior.

Medication can be miraculous, but it can also be an easy way out for doctors, judges, attorneys and providers. Like Juvenile Detention Centers, it's probably overused, becoming the default treatment when the bureaucracy fails to get to the root of a kid's problem.

Along those same lines, Scott Greenfield at Simple Justice links to a link to a New York Post OpEd by an autistic man suffered from a system that tried to make him be "normal" when he was simply misunderstood. An excerpt:

"My isolation, combined with a longstanding rift I had with my family, led to severe depression by age 9, which went undiscovered until I was 14 or so. Unable to express my emotions, I was placed in outpatient therapy for four years, which was enough to allow me to see my existence as valid. In all, I'd say that part of my life wouldn't have happened if I were better understood and wasn't persuaded that I was diseased, disordered or sick and in need of a cure.

Parents, educators and others who work with autistic people should take these words to heart, and continue to do all they can to work with autistic kids and teens, rather than trying to make them normal."

Feeding the Wolves

I met an old friend from law school today for lunch and we discussed how many lawyers seem to enjoy arguing over every detail, even when it does their client a disservice. When I got back to the office, I found this story from the Trial Lawyers College listserve:

Two Wolves

One evening an old Cherokee told his grandson about a
battle that goes on inside people. He said, "My son,
the battle is between two 'wolves' inside us all.
One is Evil. It is anger, envy, jealousy, sorrow,
regret, greed, arrogance, self-pity, guilt,
resentment, inferiority, lies, false pride,
superiority, and ego.

"The other is Good. It is joy, peace, love, hope,
serenity, humility, kindness, benevolence, empathy,
generosity, truth, compassion and faith."

The grandson thought about it for a minute and then
asked his grandfather: "Which wolf wins?"

The old Cherokee simply replied, "The one you feed."

A lot of lawyers feed the wrong wolf, in my opinion, but I have to admit that this is something I need to work on as well. Which wolf do you think law school teaches you to feed?

20 years for $1500?

I occasionally use craigslist to sell things around the house. In fact, I tried to sell a piano (later gave it away) for $200 and got an email telling me to take it off the market tand that a "cashier's check" for $200 was on its way. That message was then followed by another that said the man's assistant had accidentally made the check out for $1200 and that if I could just cash the check and give the difference to the man who picked up the piano, we'd all be happy.

The "buyer" was from Nigeria and apparently had just inherited a bunch of money from a Nigerian prince. How could I lose?

As if that wasn't suspicious enough, the check arrived in a fedex envelope (I'd heard they do this to avoid mail fraud charges) and when I called the company to verify the check, they told me their checks had been used in frauds all across the country.

But other than this, I've had good luck with Craigslist as long as I've followed their advice to trade locally and get cash.

Then last night, bored after a day of eating and football, I checked the "legal services" portion of Omaha Craigslist for the first time, and saw this ad:

Misdemeanors $750; Felony - Fourth and Third Class - $1,500. Call David Tar***, Tar*** Law Office, 402-960-****.

I've never met this lawyer, but we share the same first name and the same first three letters of our last name. Even our phone numbers are very similar as both start with "960" and end with combinations of "3321." I've even received the guy's mail by mistake in the past.

Here's the problem, though. A "third class" felony in Nebraska carries, under section 28-105, this penalty:

Class III felony Maximum - twenty years imprisonment, or twenty-five thousand dollars fine, or both. Minimum - one year imprisonment.

So, you're a criminal defendant in Nebraska, facing up to twenty years, and you see an ad for a lawyer who will represent you for a flat fee of $1500! You think, "that's less than $100 per potential year;" what a deal!

But think about that for a second: You're facing up to 20 years in what Spongebob once called "the stony lonesome," you need a competent lawyer who will stand up against the awesome power of the state and you're scared. But, like most criminal defendants, you're also broke, living paycheck to paycheck, and you probably were found indigent and had a public defender appointed to represent you, as in Douglas County the "indigency hearing" usually consists of the judge asking you if you want to hire your lawyer or have a free one appointed.

Like a person diagnosed with cancer, however, you might, after talking to your p.d., decide to get a second opinion and scout out what a private attorney will cost. Then you find a guy who will take your case for just $1500!

But what will $1500 buy you, you ask? Well, you assume your lawyer is the expert, so you put your trust in him or her, again like a person facing a cancer diagnosis.

But, let's be honest, do you think that will buy you a motion to suppress, a focus group to prepare for your jury trial, hours of preparation, years of experience in dealing with the varied personalties of judges, prosecutors and potential jurors?

Nope. It will buy you a quick plea.

It's like going to the doctor for a pain in your head and having her tell you "I can fix that for $1500;" it won't buy you brain surgery. It will probably buy you a quick prescription even if your ailment truly cries out for $100,000 in medical care.

Not a fair comparison you say? After all, a doctor could save your life, but this lawyer is only dealing with TWENTY YEARS OF IT!

You see my point? You don't go to a doctor and say "Fix my problem for $1500." You let him or her diagnose you and decide whether you need $1000 worth of treatment or $100,000. And if you find someone who says she'll fix you for $1500 without first diagnosing your condition, run the other way fast!

Find a lawyer you feel comfortable with, who has passion, who cares about your case and the next 20 years of your life. Ask questions and be a consumer, finding out if he or she is a member of the local criminal defense attorneys association, if they've ever been to NCDC, or to Gerry Spence's Trial Lawyers College.

Find out if they've ever been a prosecutor and ask yourself whether that is important to you, whether it signals what you want in a lawyer.

Like an attorney picking a jury and asking herself whether a teacher, for example, will make a good juror for you, none of these questions should be decisive in itself. It's like my friend Terry McCarthy told me, "Don't single issue people."

What he meant, as he was teaching me to pick jurors, was to find a good person and not to strike someone simply because I found one thing out about them.

Find someone you trust, who seems competent, passionate, affordable and caring, kind of like the way you'd choose a doctor if you were facing a cancer diagnosis.

Above all, don't be cheap. And don't be intimidated. Shop around until you find someone you trust, who will fight for your rights and stand up against the cops and the prosecutors for you.

Don't trust 20 years of your adulthood to someone who says they'll take care of you for $1500.

If they do it right, they'll be earning less than minimum wage on a complicated felony. And if they do it wrong, you might be earning less than minimum wage in
"the stony lonesome" with your lawyer's name tattooed on your knuckles the way Jerry Seinfeld envisioned his Uncle Leo doing pullups.

Shop around. Don't try to "shop victoriously" for a lawyer, thinking cheaper is better or that competence is uniform.

The life you save might be your own.

Giuliani on the Exclusionary Rule

In an interview with The Weekly Standard, Rudy says this about his views on the exclusionary rule:

"I remember once I had a case in court, wasn't mine, it was one of my colleagues', I'm pretty sure that's right. I remember it right, and a judge ruled that the seizure of the evidence and the guns was illegal. And the assistant U.S. attorney, who thought the ruling was wrong, got up and said to the judge, 'Do I have to give it back to him? Since it's his property, does it mean he leaves the courthouse not only a free man, but do I, should I, judge, should I give him the drugs and guns back?' And the judge got very angry. I think he was disciplined, the assistant U.S. attorney was disciplined, and I thought he was making a real point that the judge shouldn't have gotten angry about, because in essence--well, we didn't have to give the drugs and the guns back--but I'm pretty sure that a drug dealer, and a potential murderer, got out of the courthouse that day, and he got some more drugs, some more guns. Why should innocent people in society pay the price of mistakes that law enforcement officers make? And finally, when they're just mistakes, which happen in an intricate business like law enforcement, why, why the hell--why the heck--are you making society more dangerous as a result of it?"

Without a hint of irony, the article goes on to say,

"In his view, the judiciary--not the legislature or the executive or all three coequal branches--is the final arbiter of a law's constitutionality. In a July interview in Iowa, Giuliani explained to me the role each branch ought to play in the functioning of government. "It's real simple," he said. "The legislature makes laws, the executive carries out those laws, and the judiciary interprets them. And if any one of the three oversteps their bounds, it seems to me, we've actually deprived the American people of the liberty and the freedom and the democracy they have."

What about the judge who "ruled that the seizure of the evidence and the guns was illegal" and, following the Supreme Court's interpretation, ruled that the evidence be excluded at trial? Wasn't that judge simply carrying out his role and applying a law on the books that required the exclusion of evidence against the accused that was seized illegally in violation of the Fourth Amendment?

The interviewer then asks Rudy, "What do you do if you disagree with a law Congress has passed, I asked."

"Then you go to court," he said.

Here's where it gets really scary...

As mayor of New York City, Giuliani put these ideas [sic] into practice and, if you listen to him long enough, you begin to understand that if he becomes president he will attempt to apply them on a global scale."

Then Giuliani gets to this stunning paragraph, (which Andrew Sullivan describes in his blog at the Atlantic)

"Someone once said to me that what they don't get about the Democrats, and even some Republicans that do this, is they're more concerned about rights for terrorists than the terrorists' wrongs," Giuliani went on. "I mean, this granting of rights to criminals and terrorists, even when they're necessary, come with a price, a price at the other end of it. Even for the ones that are necessary, like, let's say, the Miranda ruling, it's one you agree with--there's a price for that. Maybe it's one worth paying. The exclusionary rule, there's a big price for that: Criminals go free. They walk out of court. If you say, you know, no aggressive questioning, then we're not going to find out about situations. If you say no wiretapping, well, there'll be conversations going on, planning to bomb New York, or Los Angeles, Las Vegas, and you're not going to find out. And, when we draw these lines, at least let's be honest with people about the consequences of them. Let's not fool them into thinking that there is no consequences to this. People will say that aggressive questioning doesn't work. I, you know, I . . . Honest answer to that is, it doesn't work all the time. Sometimes it does."

Wow. First it was "enhanced interrogation" and now it's "aggressive questioning." As Andrew Sullivan responds:

"Rights for terrorists"? How about rights for terror suspects? I'm sorry but those of us who support the Constitution, the rule of law, the Geneva Conventions, and the separation of powers are not in love with the evil that terrorists do. And it's deeply offensive to say we have more concern with terrorists' rights than with their wrongs. We have concerns about human rights and civil liberties - things that Islamists want to destroy.

We are just aware that demagoguic over-reaction can destroy liberty more profoundly than any terrorist act. And by demagoguic, I mean the notion that opposition to torture or detention without charges or warrantless wiretapping or a law-free executive is somehow pro-terror. It is, rather, pro-freedom. And freedom, in the end, is the only real answer to Islamism's evil.

Notice, moreover, that Giuliani seems to harbor no notion that any terror suspect in the US is innocent until proven guilty, and assumes a complete, reflexive conflation between "criminals" and those charged with a crime, as if no government official could ever confuse the two, or ever make a mistake and decide to cover it up. Notice also his assertion that some Democrats want no wiretapping, period. What they and rule-of-law Republicans favor is wiretapping with warrants, and minimal oversight, to prevent abuse. Again: what's staggering to me is that Giuliani never seems to contemplate that such abuse is even possible. Nothing could be more alien to a truly conservative mindset.

It seems to me that a vote for Giuliani is a vote for a police state that uses torture.

To people who think Giuliani will make a good president, I say "let's not fool them into thinking that there [will be] no consequences to this."

Scott Horton, Again, on Maher Arar

Scott Horton, writing in his Harper's column, describes the case of Maher Arar, the man who was snatched in New York and sent off to Syria to be "questioned" by the Syrians 'cause, you know, "we don't torture."

Of all the Bush Administration’s many perversions of the justice system, there is something particularly distressing about the case of Maher Arar. A Canadian software engineer, he was changing planes in JFK on his way home to Canada after a Mediterranean vacation when American law enforcement snatched him up. Arar had been fingered as a terrorism suspect by Canadian authorities. Within a brief period of time, he was interrogated, locked-up and then bundled off to Jordan with directions for transshipment to Syria, a nation known to use torture. Indeed, it was plain from the outset that he was shipped to Syria for purposes of being tortured, with a list of questions to be put to him passed along. Never mind that Syria is constantly reviled as a brutal dictatorship by some Bush Administration figures who openly dream of bombing or invading it… the Syrians, it seems, have a redeeming feature—their willingness to torture the occasional Canadian engineer as a gesture of friendship to the Americans.

Read the entire article, and his on-going column for that matter. Harar's treatment and the subsequent stonewalling is particularly stunning but fortunately all is now right with the Bush administration. Here is a quote from Bush's speech to the Federalist Society, as illustrated by Glenn Greenwald. Bush should truly be commended for delivering it without cracking a smile. He truly is the perfect ventriloquist's dummy for Dick Cheney, whose secret service name is "Edgar" (Bergan) while Bush's is "Charlie" (McCarthy). Here is what he said, straightfaced, to wild applause at the Fed Soc:

The President's oath of office commits him to do his best to "preserve, protect, and defend the Constitution of the United States." I take these words seriously. I believe these words mean what they say.

Actually he believes these words mean what John Yoo thought they meant when Yoo wrote:

In both the War Powers Resolution and the Joint Resolution, Congress has recognized the President's authority to use force in circumstances such as those created by the September 11 incidents. Neither statute, however, can place any limits on the President's determinations as to any terrorist threat, the amount of military force to be used in response, or the method, timing, and nature of the response. These decisions, under our Constitution, are for the President alone to make.

"The words mean what I say and mean what I want," in other words.

Scott Horton on Mukasey / Waterboarding

Scott Horton writes in Harpers about the real reason Attorney General nominee Michael Mukasey (who will likely be confirmed after Senators Schumer and announced their willingness to support his nomination yesterday) repeatedly refuses to state that waterboarding is torture:

The New York Times says the issue is one of legal culpability of those who have administered the program. In a speech I delivered in Ohio last October, “When Lawyers Are War Criminals,” I went over this analysis in some detail and concluded it was incorrect. The CIA personnel, military personnel and contractors all have immunity. But there is a class of persons who are probably not immunized in any effective way by the current statutes, namely the administration officials who authored this scheme: Dick Cheney, David Addington, Donald Rumsfeld, Jim Haynes and a handful of others. They are the figures “on the line” who are most adamant that Mukasey (or any substitute for Mukasey) provide them with the protection they feel they need.

Try to fathom Mukasey's dilemma for a second and what it says about where we are as a nation. The person nominated for chief law enforcement officer of the nation cannot say that a technique banned by the Army Field Manual, used extensively by the Pol Pot regime in Cambodia (remember The Killing Fields?), and by the Spanish Inquisitors cannot be described as "torture" because to do so would subject officials at the highest levels of government to prosecution for war crimes as well as force them to admit that Bush's claim of "We don't torture" was another outright lie.

A former federal judge, Mukasey cannot state as an official what he believes as a person, that pouring water continuously over a person's face while his legs are elevated to create the sensation of drowning, is torture. He can't say this as he undergoes the nomination process else he have to later admit that his description would or at least should require him to prosecute those who nominated him as chief law enforcement officer.

As Hamlet said, "That it should come to this!"

Then today, it is revealed that a Justice Department official who replaced Jack Goldsmith at the White House's Office of Legal Counsel, personally had himself waterboarded to judge whether it amounted to torture. As ABC News describes it:

A senior Justice Department official, charged with reworking the administration's legal position on torture in 2004 became so concerned about the controversial interrogation technique of waterboarding that he decided to experience it firsthand, sources told ABC News....Levin, who refused to comment for this story, concluded waterboarding could be illegal torture unless performed in a highly limited way and with close supervision. And, sources told ABC News, he believed the Bush Administration had failed to offer clear guidelines for its use... But Levin never finished a second memo imposing tighter controls on the specific interrogation techniques. Sources said he was forced out of the Justice Department when Gonzales became attorney general.

If Levin found waterboarding terrorizing, think how it feels when you are not held in a controlled environment but instead led to believe it will be kept up until you drown. Mukasey finds this "repugnant" but can't call it "torture" because the Federalist Society screeners know this characterization will subject even Cheney and Addington to future prosecutions.

Sound like a guy you want as chief law enforcement officer? A majority of Democrats on the Judiciary Committee think so and his nomination seems inevitable.

As depressing as this is, consider another article by Scott Horton where he describes the fate of a member of the Nazi party and a lawyer.

I want to talk about a man who deserves to be remembered in the course of this meeting. He was more than merely a "good German;" indeed, he was a man whose powerful moral example serves as a model for all of us today, a man who represents the ethical pinnacle of our profession. And the strange thing is that he was a staff lawyer at the German defense ministry during the Second World War. His name was Helmuth von Moltke. His tenacious advocacy of the Geneva and Hague Conventions in the face of withering criticism and suspicion from the Nazi hierarchy saved the lives of thousands of civilians and prisoners, particularly on the Eastern Front and in the Balkans. It also led inextricably to his execution at the hands of the Nazis in 1945.

Disgusted by an atmosphere in which law was constantly subverted to political expedience, Moltke envisioned harsh prosecutions of politicians and lawyers who engaged in such antics as an essential purgative. In a draft dated June 14, 1943, Moltke envisioned a special international criminal tribunal to be convened at the conclusion of the Second World War for the purpose of bringing to justice those who violated the laws of war. Lest there be any doubt, it was principally the men he worked with every day in the Wehrmacht whose punishment he foresaw. In view of mounting evidence of a crime of genocide, and out of concern that international customary law failed yet to provide a medium for its punishment, he advocated an expansive posture for prosecution. "Any person who violates the essential principles of divine or natural law, of international law, or of international customary law in such a fashion that makes clear that he contemptuously disregards the binding nature of such law shall be punished," he wrote in a plan for a post-war tribunal in 1943.

I come to the example of Moltke for another reason, namely that he very properly puts the emphasis not on the simple soldiers who invariably operate the weaponry of war, but on those who make the policies that drive their conduct. And in that process, his stern gaze falls first on the lawyers. In a proper society, the lawyers are the guardians of law, and in times of war, their role becomes solemn. Moltke challenges us to test the conduct of the lawyers. Do they show fidelity to the law? Do they recognize that the law of armed conflict, with its protections for disarmed combatants, for civilians and for detainees, reflects a particularly powerful type of law – as Jackson said "the basic building blocks of civilization"? Do they appreciate that in this area of law, above all others, the usual lawyerly tricks of dicing and splicing, of sophist subversion, cannot be tolerated?

These are questions Moltke asked. They are questions that the US-led prosecution team in Nuremberg asked. They are questions that Americans should be asking today about the conduct of government lawyers who have seriously wounded, if not destroyed, the Geneva system."

How will history judge lawyers today? Is Rudy Giuliani right when he says that torture depends on who's doing it?

More on Matt Diaz

Scott Greenfield of Simple Justice (recently nominated as one of the best legal blogs in the 2007 Weblog Awards) wrote a post last week in response to my posts about the plight of Matt Diaz, the Navy lawyer who secretly sent the names of all Guantanamo Bay detainees to one of the lead plaintiff's lawyers who was suing to have the names released.

As Greenfield observes:

I would very much like to write...that Diaz is an American hero for having bucked the military, given life to the Supreme Court's Rasul decision, and fought a government that he believed was violating the law. I would like to, but I can't...

I don't doubt Diaz's claim that there was no way up the chain of command that would have altered the government's decision to stonewall the defense lawyers seeking information about the Gitmo detainees. He had no lawful means to act to achieve the outcome he sought. Aside from his covert (and ill-conceived) plan to send the CCR lawyer a Valentines card, he was stuck. Frustration, coupled with a personal sense of morality, drove him to this act.

But Matthew Diaz was not like some corporate whistleblower. He ... was a Lieutenant Commander in the United States Navy... He picked his side, and upon putting on the uniform, undertook certain bedrock obligations that are larger than his personal vision of right and wrong at any given moment.

...

The military cannot function without discipline and following orders. We are not talking about orders to commit a crime or an atrocity. We are talking about orders that, for better or worse, reflect a position being argued at the highest levels of government, and challenged in the courts of the nation...

If Matthew Diaz wore anything other than a uniform, I would not hesitate to applaud his act of conscience. But once he chose Navy dress whites, the obligation that goes with the uniform trumps his right to act upon personal choices. He knew that. He chose the uniform. He violated his obligation. As wrong as our government can be, Matthew Diaz was more wrong."

I have to admit, Greenfield has a point. The fact that the information was released shortly thereafter, via a FOIA request, not only mitigates the punishment that Diaz received, it also demonstrates that his actions weren't the last resort. He may, from his position in Gitmo, viewed his actions this way, but later developments proved that the secret release wasn't necessary as the judge later ordered it anyway. In fact, I left the following comment at Greenfield's blog:

Before I found your post I asked one of my favorite, most trusted former colleagues at the public defenders office about Diaz's situation and, to my surprise, she (perhaps because she is married to a Marine and has spent a lot of time working military bases) made the same points you did.

Then, after I found your post, I had to reflect on my own frequent criticisms of people who cavalierly advise that violating the law isn't a problem if you're one of the "good guys." Giuliani said something similar to this today when he described the definition of torture "depend[ing] on who's doing it."

So I probably went a little too far arguing that Diaz is a like a modern day Rosa Parks. After all, she wasn't wearing a uniform and the fact that the information he revealed was ultimately released pursuant to a judge's order illustrates that Diaz's actions weren't a last resort more than it shows "no harm, no foul" as I previously argued.

I wonder though if he didn't see his acts as a last resort when he sealed the Valentine, thinking about his dad sold down the river by a bad lawyer and having to witness things like waterboarding and to hear the Navy argue things that the names didn't need to be released because the detainees had other ways to obtain lawyers, [WTF? They were in Gitmo!] while at the same time hearing his own government argue that these men, some as young as 13, weren't entitled to lawyers while they were being deliberately held out of U.S. territory in the hopes that geography would keep their cases out of the reach of U.S. Courts.

Diaz faced up to 20 years but he ended up getting 6 months to think about his mistakes. I know that's what they were, and guess that he does too, but I feel a little like an Monday morning quarterback describing them that way, here, from the safety of my new home.

My defense of him and offers to help amount to an argument for sentencing, I guess, rather than an argument about guilt. Perhaps when others, like the telecom execs and a certain ex-attorney general, are held accountable for their actions around this same time will Diaz's six months in the brig sit a little better with me.

Reminds me of the sarcastic quote about the law, in its "majestic equality" forbidding the stealing of bread and sleeping under bridges.

But you make a good point about the military being necessarily based on following lawful orders and the law being the law. I just hope as a nation that we're still up to making it apply to Alberto or George with the same energy that we want applied to Mr. Diaz.

As much as I agree with Greenfield's point that the law is the law, and the military is rule-based by necessity, I feel like I need to listen to Diaz before I judge the decisions he made.

So I'll ask him to respond to these points. I know he has a lot of his plate right now, and responding to a blog post probably ranks a little lower than finding a job to feed his family. Still, maybe he'll enlighten us all about what he was going through and what he was witnessing at the time. Hopefully he'll write a book someday, but I'm sure he has other priorities right now.

Update: Here's a story about a bizarre email from Col. Boylan in Iraq that sheds some light on something that might have been on Diaz's mind at the time: the fact that the top brass seems more concerned with how the war is described in the media than in how it's unfolding on the ground.

It will be interesting to see where this goes, since it involves Gen. Petreaus' spokesman claiming that he was the victim of identity theft when an email was received and subsequently published by a blogger. For a guy who's supposedly had his ".mil" address highjacked, he doesn't seem all that concerned with an investigation, making his claim of identity theft almost laughable.

Matt Diaz Needs A Job!

As a follow up to the post just below this one about Matt Diaz and my efforts to help him get into Trial Lawyers College, I received this email:

Mr. Tarrell:

Thank you for the kind comments on your blog. I know the workshop would be an awesome experience. In the run up to my trial, I listened to Mr. Spence's book, "Win Your Case," on my Ipod during my long runs. I was close to doing my case pro se and had I done so, I would have definitely used what I learned from the book.

I would love to attend Mr. Spence's workshop, but don't know if I'm eligible. My Kansas license has been suspended pending my appeal - which could take at least 18 months to get through the Navy's intermediate appellate court. I'm not expecting any relief at that level, so it'll most likely be a longer wait while I take an appeal to the Court of Appeals for the Armed Forces. In the meantime, I'm flooding the market with my resume for almost any job that will take me. I'll miss practicing law (I already do, greatly).

I'll keep tuning in to your blog. Thanks for doing it. Lots of good topics. I watched the video of Mr. Spence talking about the Mayfiled case you posted on Sep 20. I really do envy his work.

Thanks,

Matt Diaz

That's quite a compliment to Gerry Spence and everything Trial Lawyers College is about. Matt strikes me as a modern day Rosa Parks, but most heroes aren't recognized at the time they act heroically but only when we look back on what they did through the lens of hindsight.

Right now Matt needs a bar license, but his is suspended pending his appeal. He also needs a job. Helping him out, if anyone knows of one or is willing to give him a chance, seems like a great way to reward Mr. Diaz's courage and willingness to do the right thing. The names were later released via a FOIA request by the CCR later, but Diaz was still prosecuted. Unlike Scooter, no pardon was granted. I wonder if we will say the same thing about Alberto "Fredo" Gonzalez, if his possible prosecution ever takes place.

I'm still going to try to help him get into TLC this summer, but, like the status of his bar license, that's up in the air as I'm not sure whether the rules would allow an unlicensed lawyer to get in . Also, the Board members might not want to give up a spot that a licensed lawyer could occupy.

The way I look at it, however, do you know anyone who's sacrificed more for our legal system in recent years?

He believed in the importance of legal representation enough to take a tremendous chance. He got caught after a likely terrified plaintiff's lawyer (Don't you bet she thought she was being set up by the government she was suing?) told a federal judge about what she'd received. The judge then told her to notify the Justice Department which easily traced the information back to Diaz's computer at Gitmo.

For taking this chance, Diaz lost (1) his freedom for six months, (2) his military career and, (3) his civilian law license.

Now he just needs a job. Can anyone help him out?

Matt Diaz Needs Our Help

In yesterday's New York Times, (free subscription required) I read Tim Golden's amazing story of Matt Diaz, the Navy JAG who will be released from a Navy brig later this month after being convicted of releasing the names of the 551 Guantanamo Bay detainees to a civilian lawyer who was to get the information and begin stonewalled by the Navy. As the article describes what brought him from jail worker at Gitmo to jail inmate in the brig:

Sitting at a secure desktop computer, he printed out page after page of classified information, pulling each batch from the printer in case anyone wandered by. When he was done, Diaz had assembled a document 39 pages long. In tiny type, it listed names, prison serial numbers and other information for each of the 551 men who were then being held by the United States at Guantanamo Bay...

Now, Diaz knew he was crossing a line. For nearly two weeks after printing the list, he kept it locked inside the safe in his office. On another late night, he carefully trimmed the pages down to the size of large index cards. Then, on Jan. 14, the last night of his tour, he went back to the office one more time. While his colleagues were getting ready for his farewell dinner, he slipped the stack of paper inside a Valentine’s Day card he had bought at the base exchange. It was an odd touch. The card showed a cartoon puppy with long ears and bubble eyes and the greeting, “Hope Valentine’s Day is just your style.” Diaz would later say that he chose it because it was big enough to hold the list. He also hoped the lipstick-red envelope might pass unscrutinized through the Guantánamo post office."

Matt, now around 40, joined the Navy at 17 after his father was convicted of murder in California and sentenced to die in the gas chamber. His father, Robert, was convicted of killing elderly patients during his work as a nurse. But Matt's father Robert...

"...had never been in trouble with the law. No one had seen him inject the patients with lidocaine. Nor, despite the high levels of unmetabolised lidocaine in their bodies, was it certain they had been murdered. But Robert Diaz was the only nurse who was on duty when all of them died, and he sometimes carried preloaded syringes of lidocaine in his pocket. Two vials of the drug were found in the search of his home. (Robert said he had simply forgotten to empty his pockets before leaving work.) Prosecutors never offered a motive for the killings, but Diaz was arrested in November 1981 and charged with the murders of 12 patients.

“That’s when things started falling apart,” Matthew Diaz told me. At 16, he was left to fend for himself. He drifted back to Indiana, where his mother lived, but returned to California the next summer as his father’s trial approached. He soon dropped out of high school, found a job washing dishes and moved into a San Bernadino motel with a 28-year-old woman who had become his girlfriend.

Diaz stood by his father, but Robert Diaz’s legal defense was a debacle. Because he could not afford a private attorney, his case fell to a public defender’s office that was beset with dissension and budget problems. Robert’s attorneys persuaded him to forgo a jury trial and take his case before a judge — a move that was almost unheard of in a capital murder case."

Waiving a jury right? I admit there are rare cases where it's appropriate, but they're very rare. I remember interviewing for a scholarship to the National Criminal Defense College and talking about the number of bench trials I'd been stuck with when the interviewer said "Bench trials? Around here we call those slow pleas."

That's the way Robert's case ended up and his lawyer, "presented no new evidence or character witnesses in the penalty phase, noting simply that [Robert] Diaz was only 46 years old and had saved the taxpayers money by not having a jury trial." As you may have guessed, in April of 1984, Robert Diaz was sentenced to to die in the gas chamber. You can also probably guess where this left Matthew as well.

"For much of his adult life, [Matt] Diaz was the person in his family most likely to do the right thing. He was the one who would come to the rescue when someone needed help, the one who got through college and graduate school, the one who often kept the peace. His parents divorced bitterly when Diaz was 6, and he spent the next years careering back and forth between them. As children, Diaz, his older sister and their two younger brothers slept for a time in a single bed, cooking their own meals and shopping for groceries when the food stamps arrived. “We couldn’t count on our parents,” his sister, Shari Bravo, said, “but we counted on each other.”

Matthew probably counted on the lawyer at the Center for Constitutional Rights to do the right thing with the information he presented, but these are scary times to be a lawyer in her position. Can you imagine what she thought when she received these names? Am I being set up by the government? Is this a joke? She probably never guessed that the information was coming from inside the prison, from a whistle blower who knew what it was like to have a family member in prison and long for a competent lawyer to try to get you out. But, after considering turning the names over to the press (Can you imagine the fear a reporter would feel upon getting this information?) she decided to alter the federal judge who asked her to turn the info over to the Justice Department, who easily tracked the leak to Diaz.

"When we spoke a couple of months later at the brig in Charleston, Diaz was less contrite. He said he bore no resentment toward Olshansky and the Center for Constitutional Rights for turning his valentine over to the authorities; in fact, he was sending the group donations of $25 a month. Looking back, he insisted that he tried to do the right thing in the wrong way. “There was nothing else that I could really do,” he said. “I could have gone up the chain. But nothing I said would have ever left the island.”

Diaz is reviewing his own trial transcripts now — as he once reviewed his father’s — and working on an appeal with the same California lawyer who has handled his father’s appeals. Shortly before his scheduled release from the Charleston brig this month, he was stripped of his license to practice military law. He said he is unsure how he will support his family now but that he is thinking of trying to find work in legal aid, even if he is disbarred as a civilian lawyer too.

When I read this I emailed the author and am trying to secure Mr. Diaz a scholarship to Gerry Spence's Trial Lawyers College. I thought of him because Gerry defended Brandon Mayfield during the time I went to "the ranch" in 2005, resulting last month in a frustratingly little discussed blow to the Patriot Act.

The author emailed me back and forwarded my emails along to Diaz. I hope he takes advantage of this offer to help as I know many people who would chip in to help and know also that the things he learns there would help him come to terms with what he's done, with the amazing courage it took, and how he could continue to be a people's lawyer in civilian court. I know also that going to the ranch would connect him to a network of like minded people who believe in the rule of law and the importance of standing up to the government for the people.

I hope Mr. Diaz contacts me so I can explain this to him. Going to the ranch was a life-changing experience for me, and hope it could do the same for him. I know he deserves our help and a soft place to land when he walks out later this month, disbarred from the military and cast off by a government that purports to represent the land of the free and the home of the brave.

[Note: The information at issue was later released lawfully pursuant to a Freedom of Information Act request.]

2 Addiction Stories

One of the blessings/curses of working in the area of criminal defense is the stories you to be a part of. As a public defender I felt, and still occasionally do in private practice, like a part time lawyer and full time drug counselor. With that in mind, a couple client's stories came to mind that other day:

(1) She told me she used her child's photos to cut lines of meth, thinking it would persuade her to stop using it by giving her a reason to feel guilty. While this sounds sick, she was at least trying to quit. However, she was an addict, meaning she was, by definition, unable to quit by herself. So while she had the desire to stop, she lacked the essential tools and thus kept cutting lines whith her baby's picture until she eventually fond a way into inpatient treatment which finally matched her desire to her true needs, her wishes to the realities of methamphetamine addiction. Wanting to quit, and the self-flagellation she attempted- using a photo in the place of a razor blade- only made her more desperate, which led to more drugs, which led to more guilt, which led to more self-flagellation, which led to more depression and more drugs. Only when she found a way to break this cycle, did she put down the drug and the picture and face the real child and the real future. She behaved very insensitively, but was in reality very sensitive. She numbed herself and guilt couldn't snap her out of it. Only real treatment helped.

(2) Another client told me that asking her to "just stop using" was like asking me to "just stop breathing." After all, like breathing, she couldn't remember living without it, used it every day to live through it, and had begun to use it almost unconsciously. Like a drowning person pullng down a potential savior, she would do virtually anything to get it if you tried to get between her and what had become like air to her. My first reaction was that she was making excuses, but the longer I thought of her description, the truer it rang. She was describing addiction to a non-addict and I missed her point. Later, though, it sunk it. What would it be like to be so addicted that you couldn't stop? And how frustrating would it be to have people yelling at you and simplifying your situation as if the solution were as simple as just walking away.

A "Mr. Smith" Moment

Remember the scene in "Mr. Smith Goes to Washington" when Jimmy Stewart uses a filibuster to hold up legislation and then convinces his colleages to rethink their positions after a passionate speech?

Congressional Democrats caved today on the issue of whether to grant immunity to telecommunications companies that violated the law by illegally releasing information. In short, enough Democrats caved in to Bush's demand that these lawsuits not go forward despite the fact that:

1. We do not yet know the extent of the lawbreaking since its shrouded under a state secrets defense.
2. We know that at least one telecom refused to go along with the government's request for information and claimed it couldn't release the information since it would violate the law to do so.
3. We know that one judge has found AT&T's arguments silly, writing that "AT&T cannot seriously contend that a reasonable entity could have believed the lalleged domestic dragnet was legal." (Judge Reggie Walton, of Scooter Libby fame, opinion here)
"


Glenn Greenwald has an excellent post on what is truly at stake in this legislation, but what's important right now is Senator Dodd's move to put a hold on this capitulation and grant of retroactive immunity for corporate lawbreakers.

I just rewarded him for his courage with a small donation. Maybe his move will start a mini revolt and spark the "opposition" party to stop this move which grants lawbreakers immunity for past crimes before we have a chance to see the extent of the violations.

185 to 1

Here's the issue: Should young adolescents who are convicted of crimes as adults be sentenced to life without the possibility of parole? The vote on a United Nations resolution calling for the abolition of life imprisonment without the possibility of parole for children and young teenagers was nearly unanimously approved. In fact the vote was 185 to 1 with the United States the lone dissenter.

According to the New York Times article (H/T Talkleft):

...the United States stands alone in the world in convicting young adolescents as adults and sentencing them to live out their lives in prison. According to a new report, there are 73 Americans serving such sentences for crimes they committed at 13 or 14.

What do you think? Do we spoil the child if we spare life without any chance of parole if you were a child when you first arrived there? Remember, we're not asking whether we let them out, only if a judge or parole board should be able to let them out in the future if they're sufficiently rehabilitated?

Along those same lines, should we hold boys as young as 13 at Gitmo?

Law Firm Believes Phone Lines Tapped By Feds

This article, from the Burlington (Vermont) Free Press describes a law firm which defends clients currently held in Gitmo, and which believes its phone lines are being tapped and attorney-client communications compromised. The firm...

"that represents clients at Guantanamo Bay, Cuba, and in Afghanistan is warning its Vermont clients that it believes the federal government has been monitoring its phones and computer system... “Although our investigation is not complete, we are quite confident that it is the United States government that has been doing the phone tapping and computer hacking,” said the letter."

The lawyer who is interviewed goes on to say that the cause "could be a routine infection introduced into the machine by e-mail" but that "Given the phone situation, a number of another anomalies we’ve observed over time... we think we have legitimate cause for concern."

Here's the problem in a nutshell:

"Gensburg represents a client in Afghanistan as well as one of the prisoners held by the United States in Guantanamo Bay."

(h/t The Next Hurrah)

Mr. Rogers saves PBS from politicians

"Alright Rogers, you've got the floor" begins the crusty Senator before Mr. Rogers begins speaking, requesting money for public television.

Gerry Spence talks about dealing with difficult judges, or as he describes it, dealing with "his honor, the tyrant."

Watch the difference in the Senator's tyrannical beginning until the moment (around 5:00) when he says "Well, I'm supposed to be a pretty tough guy and this is the first time I've had goose bumps for the last two days."

Notice how Rogers counters cynicism with hope and respect, staying in the moment and remaining respectful throughout.

I don't mean to spoil the ending, but isn't it this method, this credibility that leads the Senator to say at the end, "I think it's wonderful. Looks like you just got your 20 million dollars."

The last lecture of Randy Pausch 1

I've heard a lot of "buzz" about this lecture from a 46 year old computer science professor who is dying of cancer. It's quite long, but if what i've heard is correct, it's well worth it.

“You can’t just stand out here. We have ordinances.”

From TalkLeft, I found this article from the New York Times, called "Reporting While Black" which describes an African American reporter's experience trying to interview suspected gang members in Salisbury, North Carolina (population 30,000).

One part of the article that caught my attention was this scene when the 37-year old reporter approaches some young black men on the street, whom he suspects of selling drugs, to interview them:

“Man, you a cop,” said another. “Hey, this guy’s a cop!”

“You’ve got me wrong,” I said trying to sound casual as the men looked at me warily. I started to pull my press identification out of my wallet. “I’m a reporter. I’m just trying to talk to you about your neighborhood.”

In the distance I heard neighborhood lookouts calling: “Five-O! Five-O!” — a universal code in American ghettos for the approaching police. I thought they were talking about me, but thought again as three police cars skidded to a stop in front of us.

A tall white police officer got out of his car and ordered me toward him. Two other police officers, a white woman and a black man, stood outside of their cars nearby. I complied. Without so much as a question, the officer shoved my face down on the sheet metal and cuffed me so tightly that my fingertips tingled.

“They’re on too tight!” I protested.

“They’re not meant for comfort,” he replied...
After a quick check for outstanding warrants, the handcuffs were unlocked and my wallet returned without apology or explanation beyond their implication that my approaching young black men on a public sidewalk was somehow flouting the law.

“This is a dangerous area,” the officer told me. “You can’t just stand out here. We have ordinances.”

“This is America,” I said angrily, in that moment supremely unconcerned about whether this was standard police procedure or a useful law enforcement tool..

It's an interesting article, and I don't cite it as an example of aggressive police tactics but rather to gauge your thoughts on the author's point that "the problem is that when the police focus on gangs rather than the crimes they commit, they are apt to sweep up innocent bystanders, who may dress like a gang member, talk like a gang member and even live in a gang neighborhood, but are not gang members."

After all, we are talking about what is probably suspicious behavior: a well-dressed man approaching people visibly selling drugs in a high-crime area after dark. However, in this case, and in a lot of others no doubt, the individual caught up was, in his words:

At 37 years old, I’m beyond the street-tough years. I suppose I could be taken for an “O.G.,” or “original gangster,” except that I don’t roll like that — I drive a Volvo station wagon and have two young homeys enrolled in youth soccer leagues.

"To get out of a ticket... Don't break the law."

That's the advice given by a police officer to the public on a website called "Cops Writing Cops: Where's the courtesy?" (hattip Scott Greenfield at Simple Justice) By "Writing" they don't mean love notes or blog entries, but mean tickets. Or, in the words of the officer who created the site, the purpose is:

If you are a police officer, trooper, court officer, correction officer, telecommunicator, highway patrol, federal agent, or any other type of police (peace) officer... that has been disrespected or insulted by another police agency (officer) by not receiving some sort of professional courtesy, please email staff (at) copswritingcops.com with the information."

Yes, the "don't break the law" advice doesn't extend to the brothers in blue as further down the page, the same guy who wrote this writes:

"Yes it’s true, cops usually don’t give other cops tickets. Think of it as an employee discount, perk or benefit. Other Cops are family and you wouldn’t give your brother a ticket if you were a cop either."

The Equal Protection clause isn't very fashionable here, but I'm sure those other parts of the Constitution are taken very seriously!

Reminds me of when I was in high school and my girlfriend at the time was babysitting for a police lieutenant's family. As the girl was getting a ride home, they were pulled over for speeding and the first words out of the officer's mouth weren't "your license and registration" but "I'm sorry! I didn't know it was you!" And that was the end of the traffic stop. I remember being shocked at this episode, at the lack of principle or even concern for whether the law was broken.

But wait, as a criminal defense attorney, don't I qualify as a "court officer" entitled to a little "professional courtesy" under the above definition. What am I complaining about? I'll just pull out my "Nebraska Criminal Defense Attorneys" card at my next traffic stop and threaten to expose their lack of "professionalism" on this site if they have the nerve to ticket a fellow "court officer."

Anybody want to bail me out afterwards?

Symbols of Our Prison Culture

On Friday, the PBS program Bill Moyers Journal ran a fascinating interview with former corporate attorney turned photographer Chris Jordan about his work "Running the Numbers: An American Self Portrait." The two that caught my eye are shown above and they reveal what the prison population of America in 2004 truly looks like, if each of the 2.3 million prisoner's uniform were folded and stacked together. As Jordan says on his website:

My hope is that images representing these quantities might have a different effect than the raw numbers alone... Statistics can feel abstract and anesthetizing, making it difficult to connect with and make meaning of 3.6 million SUV sales in one year, for example, or 2.3 million Americans in prison... This project visually examines these vast and bizarre measures of our society, in large intricately detailed prints assembled from thousands of smaller photographs.

On the Moyers program, Jordan described what he was trying to show in the photographs above:

We have the largest prison population of any country on earth. There's also no other country that has that percentage of its population in jail. And that includes all of the dictatorships that we think of as the enemies of freedom."

Here's another way of looking at it: According to Wikipedia, "The United States has 5% of the world's population and 25% of the world's incarcerated population." So, while 1 in 20 of the world's population hails from the so-called "Land of the Free," 1 in 4 of the world's prisoners calls America home.

Isn't there a lesson here about how we can show judges the "big picture" as we ask them not to add to this grotesque scene? When we step back at look at what our prison population truly looks like, don't we have a better argument (especially in the case of non-violent drug offenders) that adding another orange uniform to this picture means isn't the only way, or the right one?

Gerry Spence - Falsely Accused of Terrorism