Wednesday, March 28, 2007

A Second Kind of Loyalty

A while ago, Skelly had a post about why people go into public defense; from a profound belief in the fundamentals of the Constitution and/or a strong anti-authoritarian streak. This post is about people who are stirred to act on that profound belief, and the price they pay for it.

Beginning in the 1960's one of the many slogan/propaganda programs going on in China was to "Emulate Lei Feng." To emulate Lei Feng was to show obedient, unquestioning loyalty to the Party. Not heroism, not brilliance, not standing out in any way. In Feng's words, to aspire to be nothing more than "a revolutionary screw that never rusts."

Beginning in the 1950's a journalist named Liu Binyan began writing literary reportage pieces, exposing corruption, bureaucratism and incompetence in China. As part of the crackdown after the Hundred flowers movement, Binyan was "sent to the countryside" for "reeducation through labor."

He was rehabilitated in the early 1960's but kept writing. In the late 1960's he was again sent to the countryside, but for "reform through labor" i.e. a prison labor camp

He was rehabilitated again in the late 1970's and wrote into the 1980's about the same problems of corruption, incompetence and the suffering and injustices of the regular citizen. In 1988 he came to the US to teach, and was forced to remain here in exile after speaking out against the Tiananmen Square massacre and the following crackdown. He died in 2005.

One of the pieces he wrote in the 1980's was called "A Second Kind of Loyalty." It was a response to the "Emulate Lei Feng" movement, who represented the first kind of loyalty. The person who showed the second kind of loyalty loved China or the Party no less than Lei Feng, but acted out of love and loyalty to tell the nation or Party when it had betrayed its ideals.

This second kind of loyalty is the kind that Binyan himself lived. His autobiography is called "A Higher Kind of Loyalty" and it fits him. He remained a committed Communist all of his adult life. He grieved for what had become of the Communism he believed in, sacrificed for, worked in prison camps for, and tried to point out its errors, without avail. I had the honor to meet him in 1990 after Tiananmen, after he'd been exiled. He still believed. He still struggled, honorably and with total loyalty, the get the Party to see the error of its ways - to return it to that ideal that Binyan kept in his heart of hearts.

One of the reasons people become public defenders that that they have a second kind, the higher kind of loyalty. They believe that the Constitution and the Founding Fathers contemplated something better than what we're doing now; that in order to be worthy of being called "American" we must try to do better; that the ends don't justify the means; that as Americans we're the good guys, even when the other guys play dirty; that we're a nation of laws, and those laws apply equally to all. We know how and why the Constitution should work; and those with the higher kind of loyalty are trying to get the way it does work as close as possible to the way it should work.

The second kind of loyalty is rarely popular; people don't like to hear that what they hold dear has been corrupted or perverted. The tendency is to kill or at best resent the messenger, even the loyal one. For both Lei Feng and Liu Binyan, their personal comfort was secondary to their loyalty. Feng merely honored the letter of the law of loyalty, which won't save what you're fighting for if it's gone astray; Binyan honored the spirit of the law of loyalty and tried to save what he believed in.


Friday, March 23, 2007

Phil Spector - Unambiguous on everything except the request for counsel?

Another study says ugly looking people get found guilty more often than good looking people.

Phil Spector's got a haircut and a venire of 300 for his murder trial.
The Smoking Gun has a partial transcript of an interview with a police officer. TSG's transcript starts at page 18, where the cop is (apperently) verifying with Spector that "you wanna get ahold of your [attorney, Robert Shapiro]"
Unfortunately, Phil Spector had some serious diarrhea of the mouth (and serious potty mouth, too) to include trashing the dead woman in the case.
I'd like to see the first 18 pages, and hope for Spector's sake that he unequivocally invoked his right to counsel. His vehemence for the dead "piece of shit" and the authorities certainly is unambiguous.
If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.
Davis v. US, 512 US 452 (1994)

My experience (with one exception) has been that "unequivocal" means no less than "I want an attorney now." And in the event of an unequivocal invocation, the police will "mention" other things that might just happen to cause a client to "reinitiate" the conversation, like "I do not want you to answer me because you dont' want to talk to me without your attorney, but we've arrested your girlfriend for her involvement in this." (in this particular robbery case, the DA's victim was starting to go south on him, so we worked out a reduced charge/time served deal, so we'll never know what the appeals court would say about that.)

Thursday, March 22, 2007

What's With the No New Posts, eh?

I'm not sure why I haven't been posting much - I've got a few reasons floating around.
1. Burnout. Maybe... At least part of my lack of posting has been a feeling that most of what I've been writing shows a good bit of contempt for defendants - my clients. I don't consciously feel contempt. Sadness, yes, but not contempt. One of my coping mechanisms is the black humor that most of us keep to ourselves - but my writing has seemed to focus on that aspect, and not on the others, so I want to de-emphasize that. Other than being more tired than usual of my clients doing stupid things, I don't feel any other symptoms of burnout. I'm at the jail more, seeing my clients more, I'm trying more cases, I'm having more fun doing it, my understanding of the spiritual aspects of my calling is deepening, I'm balancing work and family better, etc.
2. The new has worn off. My posting has always run in fits and starts, but committing to posting has started to feel So, maybe so. But that in and of itself isn't really reason to not post, but it does feed into the next reason:
3. What have I got to offer? Somebody else usually picks up the new stuff before me, posts more intelligently and insightfully, has better stories and tells better stories - what can I offer that no-one else does, or at least offer something as good as someone else? for lawyers, paraphilia phridays and debunking meth recipes? I don't think so.
4. Shades of grey /100% solution. Once I do start writing on something non-fluffy, it turns into mush because I can see the other side's argument and in my mind concede that reasonable minds can differ. The writing tends to lose direction and strength. Also, the nigh-untappable knowledge available on the internet makes it very hard to write fully on a subject without it ballooning - I have a tendency to digress because the digression is as interesting or more interesting than the primary discussion, and the internet both facilitates and multiplies that tendency. I also want to have the whole, correct answer based on all the data - the 100% solution. However, living in the real world requires us to think and act on less than 100% information; otherwise we'll always be gathering information, rather than acting on it.
5. A day late, a dollar short. By the time a I have something useful to post about something, it's old news. That's partly a function of my tendency to want the 100% solution and partly my laziness. In my head, I've got a great article on the development of 'humane' ways to execute people that was perfectly illustrated by the Iraqi's popping off the head of Saddam Hussein's half-brother two months ago.

The answer is probably all of them. But hey, it's a post.


Wednesday, March 07, 2007

AAJ trial comp 2

We went we saw and we got home towned. WE didn't have the right twang to our accents to go forward. BUT, the kids learned alot as did I and they represented their law school with dignity and honor. I'm very proud of them. So I"m sitting here listening to Etta James and if you haven't heard her your missing out she sings "At Last" one of my all time favorite songs. And a great person to listen to as your reading police reports.