Monthly Archives: July 2007

Taken to the Illogical Extreme

Last week, I posted about the bizarre murder conviction in Missouri where the defendant was held responsible for the death of a state trooper 40 miles away. I concede that my post was condescending, as this was some ridiculous story about some hick state’s version of justice. It could never happen here, right?

I was wrong. Terribly wrong. I realized this yesterday, when I received a call asking me if I was willing to be interviewed by a reporter for Slate about the collision of two newscopters in Phoenix that were covering a police chase. The story was about the prosecution of the defendant for the deaths of four people in the helicopters. Thankfully, I wasn’t called until after the story had closed, so I didn’t end up doing the interview. I read the story this morning, and it fell a bit short of the promise of the first amendment.

The Phoenix situation demonstrates how the floodgates have been opened by the Missouri leap into irrationality. Now that one jurisdiction has tasted blood, others will try their hand to show that they too can rid the world of miscreants whose conduct “results” in death and destruction, no matter how disconnected. Will prosecutors across the nation now vie to convict for the most unrelated outcome possible? It appears quite possible.

Chaos theory holds that the flapping of a butterfly’s wings can cause a tidal wave. Conceptually, every single thing that happens causes a result somewhere, somehow. Of course, that result is impacted by everything else that happens as well. Given enough rhetoric, it is possible to connect any bad outcome with some evil deed somewhere, no matter how distant the temporal or spatial parameters. But this is theoretical. There is no direct causal connection, and the result is merely a product of a facile tongue and vivid imagination.

For purpose of criminal law, the lack of a direct nexus between conduct and outcome dooms the legitimacy of prosecutions. The nature of felony murder is itself inherently suspect for this reason. While it may be foreseeable for a person who uses a gun to commit a crime, but without any intent to shoot the weapon, that a gun fight may break out resulting in the death of an innocent bystander, the logic stretches too thin fairly quickly. Felony murder does not require as direct a foreseeability element as the gun example, and may well result in an unarmed bandit being held responsible for the death of an innocent bystander as a by-product of a police officer’s poor aim.

From the result-oriented perspective, this is not a terrible thing. After all, the criminal chose to commit the crime, and by doing so forfeits his complaint of unintended consequences. But from the jurisprudential perspective, this is troubling. The law proscribes conduct combined with intent. In the latter example, there is no intent to cause harm to anyone, yet harm resulted nonetheless. So we have criminal conduct, but no criminal conduct that itself results in death. We have intent, but no intent to cause death. Yet the person who engaged in the non-lethal conduct with non-lethal intent ends up being tried for murder.

Society has been going down the path of result-oriented jurisprudence for some time now. One of the most glaring examples is with drunk driving, where the penalty bears no relationship to the conduct and intent, but is solely dependent on the fortuitous nature of the outcome. While it fails to serve any real criminal justice purpose to pursue prosecutions in this manner, it at least relates to a direct causal relationship.

But with the Phoenix case, like the Missouri case before it, there is no direct causal relationship. In fact, it is conceded that there is no direct cause and effect at all. But that’s not the argument in favor. The prosecution is taking a hard left turn away from addressing the defendant’s actual conduct, and going down the path of having a result (in both cases, death) and needing someone to blame.

Could pilot/police negligence be the direct cause of the mishaps? Clearly yes but that would require us to blame people whom we would prefer to call the victim. Since there is a criminal available, and he is certainly a person we would prefer to revile, then he should bear all consequences regardless of distance and thus shift the scrutiny away from the negligent, but criminally innocent, “victims”.

This issue was also the subject of a critical analysis at Crime & Federalism, where the blame was placed not on the defendant, nor even the pilots, but on American society for its culture of entertainment. We watch these stupid car chases, so the news helicopters cover them, and so the helicopters collided and deaths ensued. This arguments falls into the same mistake that I did during my first go-round with the Missouri murder case. It assumed the problem to be isolated, because the very idea of this becoming the new darling of the prosecution was too ridiculous to believe.

But there is an important lesson coming from the C & F piece where they blame society for the tragedy. You can cast blame at anyone you want, once you disconnect the direct causal relationship between conduct and outcome. Then it becomes nothing more than argument. Indeed, the Phoenix deaths might be blamed on dozens of criminals, going back to O.J. Simpson who can be said to have popularized the car chase, thereby causing public demand for video real time footage, thereby giving rise to the Phoenix news producer’s directing the newscoptors to cover the chase, thereby resulting in the crash.

If all this is too convoluted for you, then you’re responding thoughtfully. Let us hope that there are some cooler, more rational heads involved who will put an end to these cases reaching their illogical extremes. I had hoped that was the purpose of the Slate article yesterday, but I was mistaken again.

The Russell Case Could Be Any of Us

Gideon at A Public Defender has been keeping tabs of the Phillip Russell prosecution for the benefit of the criminal defense bar. You may recall that Phillip Russell is the attorney who is now being prosecuted by the feds under Sarbanes-Oxley, of all things, for having destroyed a computer that allegedly contained pornographic images. At the time he is alleged to have done so, there was neither prosecution nor threat of prosecution. When this bizarre case started, I wrote about the SOX abuse aspect and the law of unintended consequences.

The significance of this case for criminal defense lawyers, and their clients, cannot be understated. Bear in mind, as we discuss this further, that this is no parochial prosecution by some small town prosecutor looking to make a name for himself by bringing bizarre charges. This comes from the United States Attorney in Connecticut, and we all know that the Department of Justice is above petty political concerns. Sorry, wrong story.

While there’s been no explicit confirmation of this, it is inconceivable that the US Attorney would prosecute an attorney without express approval from Washington. Thus, it reflects a policy decision that the DOJ isn’t satisfied with V-6 lawyers turning their unsuspecting clients into agents of the government. They want the lawyers too.

But wouldn’t the District Court Judge recognize this attempt to hijack the right to counsel from citizens and force lawyers into involuntary servitude to the government? Check out this quote via Gideon:

[Judge] Nevas fired back that “a lawyer certainly could see that an official proceeding would ensue. He knew this computer contained images of children engaged in terrible acts.”

Nevas also maintained that, under state law, certain people like doctors, teachers and clergymen are required to inform law enforcement authorities of evidence of child abuse.

Note the language “would ensue” first. Lawyers are trained in many things, but seeing into the future with sufficient certainty to be held criminally accountable is not one of them. Perhaps Judge Nevas’ post-hoc comprehension of events was a bit facile? But bear in mind, this is to hold a lawyer criminally liable for circumstances that have yet to occur.

More dangerous is the second part of the quote, where the judge noted that certain professionals are required to inform law enforcement about child abuse. Notably, lawyer is not in the list. The reason why is obvious, since the duty of a lawyer is fundamentally different than the others. By mentioning this, however, Judge Nevas suggests it bears a nexus to the case, there obliterating by implication the different duty of a lawyer. While I don’t know Judge Nevas’ background, I feel it safe to assume that he went to law school and learned about these things.

Phillip Russell’s lawyer, Robert Casale, nails the problem:

“By virtue of the case of the United States against Philip Russell, you’re all conscripted to be agents of the government. And if you don’t act in that capacity, we’ll prosecute you.”

That’s what this is all about. Nice talk about ethics and professional responsibility aside, since they have long since lost their meaning when it comes to the DOJ (anybody remember the Thornburgh Memo?), the federal government is trying to make new rules for the game. Lawyers don’t have to become secret government agents when, as a result of their representation of a client, they come into possession of evidence of wrongdoing. They just have to go to jail for their failure to do so.

Great Advice For the Budding Criminal Defense Lawyer

Adam Levin at Southern Criminal Law and Justice has put together a terrific post covering a wealth of areas for the rookie criminal defense lawyer. It presents many areas of questions, and provides responses from numerous sources, myself included.

What’s fascinating is that, without any collusion whatsoever, so many of the responses to Adam’s questions are the same. You might think that, given the different locales in which we practice and varying levels of experience, we would have some major disagreements about how to be a lawyer, practice law and handle clients. Yet the opposite is true.

Adam should be commended for this ambitious and really well-handles piece. If you are new to criminal defense, or are considering whether it’s right for you, this is a must read.

Another Stunning Tragedy

By now the story of the exorcism will have made its round through the media. After the movie, there’s no decent exorcism story that doesn’t get widespread play. But the real story here has nothing to do with the exorcism.

The police sought to stop the grandfather from choking the life out of a 3 year old in this home-made exorcism. They did the right thing. The police could have just shot the guy, but instead tried what they believed to be non-lethal force: a stun gun. Not only should they not be faulted to doing so, but commended for trying to save a life without taking another.

The problem, and the story to me, is that the old technology of stun guns and tasers has produced too many unintended deaths. Sold as a non-lethal means of subduing a person, the chances are too high that these good intentions, and marketing representations, will still result in death.

There must be a better way. I would not be at all surprised to learn that the technology, the means to subdue, already exists and is readily available. I’ve watched “future weapons” on Discovery Channel, and there’s a whole lot out there that the general public knows nothing about. And that’s just the stuff that they make public. Imagine what they’ve got behind closed doors.

But why, if totally safe and effective non-lethal weapons exist, are they not in the hands of police? Am I wrong to think that most of us would want police to have the means to protect themselves and us from those who would commit acts of violence without causing the death of another human being? Safe and effective are not mutually exclusive.

As we used to say, if we can put a man on the moon, can’t we produce safe and effective non-lethal weapons? If we let everyone have one, I bet that Steve Jobs could figure out a way to put it into an iphone. There’s no reason why people should still die from the use of stun guns and tasers.

Beating the Lawyer, Part 2

Last week, following Mark Bennett’s lead, I wrote about the emergency phone calls from potential clients, who then go off to the low-rent lawyers after having survived their emergency on the cuff. That’s how some folks try to beat the lawyer on the front end. Today, we talk about the back end efforts.

To preface this post, this is not about Gideon (the case, not the guy from A Public Defender), or pro or low bono, which is a function of attorney choice, not the unilateral fiat of the client. The private criminal defense bar is comprised of lawyers who earn a living by representing people accused of crimes. We don’t get a paycheck from the state or federal government. We work for a living.

The nature of what we do presents some challenges to the typical lawyer business plan. Criminal defense lawyers tend to set a substantial retainer up front. If we’re not paid up front, we end up not being paid. Clients love to ask, “don’t you trust me?” Well, no. It’s not a matter of trust, it’s a matter of business. While there may be clients for whom we have worked so many times that fees are no longer an issue, experience is overwhelmingly clear that absent the initial retainer, getting paid is a problem. Clients may deliberately chose not to pay, but more often they make overly optimistic promises that they simply can’t fulfill.

Things happen. The money gets spent, or seized, or simply disappears. They come into the office, with their heads hung low, sheepishly explaining how they just don’t have the money to pay and asking for more time or greater indulgence. When pushed, they lapse into the “you only care about money” speech, as if they sell heroin to children because they’re great humanitarians.

But the real problems happens later. Most legitimate lawyers try to charge only for the services they believe to be necessary, and cut the client a break as to unforeseen problems or subsequent proceedings. Most significant is the trial fee. Since most cases do not go to trial, and trial is a very involved and time-consuming proposition, we do not include trial in the initial calculus. We will explain up front what the trial will cost, or how the fee is set, but we don’t demand or expect payment for trial at the start of a case. There’s the rub.

When it becomes clear that a case is going to be tried, then the trial fee kicks in. That’s when the client and lawyer can run into a serious rift in the relationship. The client has already paid a significant amount of money, and wants a return on his investment in you. At the same time, the lawyer has made a commitment to the client and the court to see the case through to its conclusion. But the lawyer’s fee remains outstanding, and as noted above, we work for a living.

As we prepare for trial, this is the time when the relationship between lawyer and client needs to be at its strongest. But when there is a fee unpaid, and a client who doesn’t want to hear from the lawyer because he or she knows that there’s money due and he either can’t or won’t pay it, the lawyer cannot do his job properly. We need cooperation to prepare properly.

On the flip side, lawyers are disinclined to put in the time on behalf of a client who is in the process of beating them out of their fee. Once again, it’s not that the lawyer doesn’t want to win. It’s that the lawyer works for a living. Where would you spend you time? With the guy who’s paying you or the guy who’s not?

In the old days, when the client refused to pay the trial fee, we used to tell the judge that we weren’t ready for trial because we were waiting to hear from our witness, “Mr. Green.” Almost every case had a witness named “Mr. Green” back then. Not anymore. Courts have standards and practices these days, and they aren’t about to adjourn cases for the benefit of defense lawyers, only to have the administrative judge chew them out. Nor do they care whether we get paid. Of course, that’s coming back to haunt the judges in New York, as they stump for support for a pay raise of their own.

So on the back end, the trial fee becomes a serious problem for everyone involved. The lawyer is put in the position of working for free, and for a client for whom he has developed a certain degree of antipathy. The client hides from his creditor, the lawyer, thus making the preparation that is going to get him the best chance for a “W” impossible. It’s a lose-lose situation. And it happens regularly.

The Practical Blawgosphere: Keeping Score

Dave Hoffman, over at Concurring Opinions (or Co-Op, as us cool guys call it), give us a score card of the old guard Law Professor blawgs, distinguishing between traffic and authority. More significantly, the latest way to keep score is how many times a blawg is cited in a decision, which has got to be pretty darned cool if you’re a law professor (or even if you’re not), considering that law reviews no longer de rigor for thoughtful appellate rulings.

But law profs and practical blawgers come from different places. They have that “publish or perish” thing going. Plus, they discovered blogs while we were busy in court defending clients and trying cases and have a big leg up on the practical blawgosphere. They post about academic studies while we post about how young lawyers should never go to court wearing their underpants on the outside, no matter how cool they think it makes them look.

The box score that Dave uses is made up of two different components. The traffic component is how many different people actual go to their blog. This is made of two components as well, that being unique visitors and repeat visitors. And then there’s the subset of people who click on the jump to read the full post versus those who just check out the front page to read the headlines and see if anything interests them enough to look further.

The other component, what I call authority, has to do with how many other blogs (and now court decisions) cite or link to their blawg. This creates an acknowledgment that a blawg has something to offer to the readers of another blawg, and tends to provide a certain reciprocity between the readership of blawgs. If you like x, then take a look at y. What Dave discovered in his tally is that blawgs that are similar still have entirely different sphere’s of readership, so that you may like Simple Justice but inexplicably don’t check our a very simpatico blawg, Defending People.

For those who view their blawgs the way rappers view their bling, there are even awards and conventions for bloggers. I feel fairly confident that Simple Justice will not be winning anything this year. In the practical blawgosphere, we tend not to blaze new paths in intellectual discovery, but rather deal with a far more mundane world of lawyering in the trenches, with the occasional attempt at humor thrown in. Our commentary is more goal oriented, and our politics often predictable. Of course, that doesn’t harm the 2006 Award winner for best legal blog, The Volokh Conspiracy, not one of my personal favorites but obviously one read by a whole lot more people than Simple Justice.

I also just learned that there’s something called Blawgworld 2007 (download pdf) that is supposed to reflect the best of law blogs for the past year. Except it doesn’t even note the existence of most of the blawgs that I read daily, no less include them in their “best” series. It’s definitely an old guard sorta thing, kissing up to the big time blawgs and totally ignoring the practical blawgosphere.

And so, I guess that provides a decent segue into the only score that matters to me in the practical blawgosphere. If I write something, will anyone read it? I write because I chose to. But there would be no point in all the additional clicking (not to mention debugging angst) that goes along with having a blawg if nobody came. I get a pretty good number of readers every day. Some days more than others, but my traffic is good and my authority is decent. It provides me with a reason to post whatever I write, and not just hand it off to someone else to publish under their name as I had done for years.

It would make me happier if Simple Justice showed up in other blawgs with greater frequency, and in new blawgs more often. It would be nice to have more subscribers. It would be really nice if readers would leave comments, particularly comments that gave me a clue what they were thinking rather than just filling in the stupid poll at the end of the post that they have “no opinion.” Why bother? This blawg was intended to be a discussion, not a lecture.

Get in the game and participate. Perhaps that’s the scorecard for the practical blawgosphere. We may not be cited by the Law Profs (I don’t think they even know we exist) or in Supreme Court decisions, but we’re standing next to you in the trenches. If you tell me what you’re thinking every once in a while, I’ll consider Simple Justice a huge success.

Beyond Some Reasonable Doubt

Norm Pattis at Crime & Federalism posts about Connecticut’s revised standard of proof in criminal trials, “firmly convinced.” Not being a CT lawyer, this one fell well below my radar, but this is a critical change for all criminal defense lawyers and should not go unnoticed.

For a long time, judges, bar associations and revision committees have complained of, and attempted to change, the jury charge language for “beyond a reasonable doubt.” Not only has it been the source of substantial appellate litigation, but it has long been recognized as defying meaningful definition. In other words, it sounds nice but nobody has a clue what it really means. Even then Chief Judge Ralph K. Winter of the Second Circuit observed that the standard was paid lip service but little more.

The typical instruction states the burden of proof, and then goes on to explain what it’s not. As Norm writes, the best we can hope for is what he calls the two construction rule: The two construction rule requires a jury to acquit if there are two reasonable constructions of the evidence, and one of them is consistent with innocence.

Connecticut’s quest for “plain English” instructions is no different than many before it, except that in State v. Jackson, the Supreme Court took the step of approving the following language:

“Proof beyond a reasonable doubt is proof that leaves you firmly convinced of the defendant’s guilt. There are very few things in the world that we know with absolute certainty, and in criminal law cases, the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the defendant is guilty of the crime charged, you must find him guilty … . If, on the other hand, based on the evidence or lack of evidence, you have a reasonable doubt as to the defendant’s guilt, you must give him the benefit of that doubt and find him not guilty.”

Proof that leaves you firmly convinced is now all it takes. Mind you, firmly convinced does not mean that you don’t have a reasonable doubt, or many for that matter. Apparently, it’s good enough if each juror’s personal level of satisfaction and confidence in a guilty verdict is met. Or, to put it even more bluntly, if the juror can live with it, then that’s good enough.

Having served on a committee to construct a new pattern jury instruction for beyond a reasonable doubt some years ago, I recall the very real struggle to come up with some words that were both comprehensible to an ordinary juror and convey the essence of beyond a reasonable doubt. We failed. We never came up with anything that was even close to satisfactory.

But the desire to change the instruction is pervasive, with courts nationwide recognizing that the current instructions fail to hold a juror’s attention long enough to serve their purpose, no less inform the juror of what the hell we’re talking about. And so, Connecticut’s leap into the abyss becomes critically important.

Now that a state Supreme Court has taken the chance of approving new, severely watered down language, will other states ride its coattails? Will the case go SCOTUS where the Roberts Court can mandate it for all? Or perhaps tweak it a bit, like leaving out the word “firmly”? Once the genie is out of the bottle, it’s almost impossible to get him back in. The Connecticut Supreme Court has chosen to lead the way with this monumental alteration of the explanation of beyond a reasonable doubt. I just wish they did a much better job.

Odd Lawyer Phrases

When arguing an appeal, we invariably begin with the phrase, “May it please the court…” Why? What if it doesn’t please the court? Are we supposed to limit our arguments to only those that make the judges on the panel happy?

Sure, we want the judges to accept and adopt our positions. But please them? Not necessarily. Indeed, criminal defense lawyers are far more likely to piss them off than anything else, and we know that in advance because we are the appellants and are making them work. If we wanted to please them, we’d withdraw all notices of appeal and let them play golf. We wouldn’t win, of course, but they’d be happy.

We repeat the out of tradition and custom, though I know a few lawyers who refuse to say it as a matter of principle. On the other hand, they don’t open their argument with “Whether you like it or not…” You still get more flies with honey than vinegar, though the fly metaphor can be stretched a bit thin when it comes to appellate judges.

There are some other lawyer phrases, like “oyez” at the opening of the session, which have always bothered me, though not enough to take issue. Of course, when they say “let all draw near and be heard,” I’m always tempted to stand up and announce that I’ve got a little something to say, and since they asked…

Of course, those old saws, “with all due respect” and “my learned adversary” are intended to serve as nice ways of insulting the judge and opposing counsel, respectively. Then Andrew Lavoott Bluestone of New York Attorney Malpractice Blog loves to tell of when a judge asked him whether he was being contemptuous of the court, to which he replied, “Not at this time, Your Honor.”

And what’s with “Your Honor?” Do judges not have names? While we are expected to be respectful, do we really have to be obsequious? You would have thought the whole “Your Honor” thing would have gone out with wigs.

During a trial, I crossed a cop using the word “skel”. I like using some of the uglier cop phraseology, as it reminds the jury who that nicely dressed, well-mannered, cooperative fellow on the stand really is. So after uttering the word, the court reporter looks up at me and says, “Huh”? Without missing a beat, I said, “Skel; from the Latin, skel, skellum, skellous.” The court reporter sighed, and “my learned adversary” furrowed her brow, but I got a chuckle out of “His Honor.”

There’s No First Amendment For Lawyers

The promise of free speech under the First Amendment to the Constitution applies to all. Okay, most. Well, everybody but lawyers. At least it seemed that way. But as Nicole Black’s summary of the hot button issue of the new New York Lawyer Advertising Rules shows, this may be changing. Unfortunately, it took a federal court’s injunction, as the powers in the New York State Courts still cling to the belief that there is no such thing as free speech for lawyers.

The issue of lawyer advertising makes this discussion difficult, as I’ve posted here before, because some of the garbage that lawyers have put out on the internet to promote themselves is downright disgraceful. I hate it and I’m appalled by it. But would it not be better to attack it as a matter of fraud and deception rather than prior restraint? Do we need to abridge free speech to stop lawyers from being liars?

The intrusiveness of the new Rules was, frankly, pretty darn clear. A lawyer couldn’t show a photograph on her website of her family because it was unrelated to her practice of law. Or mention that she was a little league coach in her spare time. Why not? She’s not allowed to be human, and let potential clients know that her interests went beyond a particular practice area?

And what was the point of a Rule prohibiting a picture of a courthouse? Does anyone believe that such a pic imply that the lawyer lives there or “owns” it? These are the images that people associate with lawyers, and they serve to mislead no one. The rules ran amok.

The problem is not that New York needed new rules. The problem is that New York doesn’t enforce the rules it has, though even the rules as set forth in the Code of Professional Responsibility infringe on protected speech. What, you say! How can that be? When was the last time you read through the Code? It’s replete with limitations on what you can say publicly about a case, or to criticize public officials. It’s not that you can’t say whatever you want, just that you can’t do it without being subject to discipline. But these are more political rather than commercial concerns, and advertising rules apply to advertising.

The bottom line is that New York has taken the approach that when a problem arises, we need more rules. Rules are the solution to all that ails us. Hooray for rules! This approach fails to recognize that there are two components to any system that seeks to use the might of the government to control. First there are limits. Second, the limits are enforced.

New York has limits. It’s always had limits. But there’s no one minding the store. Is anyone googling lawyer websites to see whether there’s compliance or violations? The official response, I suppose, is that they will wait for someone to complain and then, and only then, will anyone bother to take a look. This approach, of course, has never been an effective weapon to stop deception by lawyers. For god’s sake, there are TV adds across the country, and nobody cares enough to deal with them. Can it be more flagrant?

Instead, the lawyers inclined to follow the rules, whether they like them or not, are the ones who will suffer for any new rules. The lawyers who pay no heed, or can’t be bothered to even learn what the rules are, will continue to ignore or disregard them. The rules will have no impact on the mutts of the profession.

Some years ago, I had a correspondence with a former Chief Judge of the Court of Appeals about a rule he sought to impose to provide for sanctioning lawyers. My position was that lawyers who abided the law, followed the rules and behaved appropriately, were at a perpetual disadvantage to those who ignored or flouted the law and rules because judges would rarely, if ever, do anything about it. It put lawyers who obeyed the law at a great disadvantage to those who didn’t, and was a clear incentive to ignore the law and rules. The Chief Judge agreed with me.

The same is true of the infringement of free speech. Those of us inclined to comply are the ones who would never be deceptive to begin with. Those lawyers who are hellbent on misleading the public won’t comply with any rules, regardless of how stringent they may be. So if New York wants to do something about lawyer advertising, forget the new rules and start enforcing the rules you have. It’s about time that the lawyers who follow the rules get a break, and that we are allowed to enjoy the first amendment just like the rest of our fellow citizens.

Can Democrats Finally Be Democrats Again?

Professor Bainbridge posts about a new study by Andrew Sullivan that says that “Young people react with hostility to the Republicans on almost every measure and Republicans and younger voters disagree on almost every major issue of the day.”

Given society’s historic pendulum approach to politics, this comes as no surprise. But it begs the question of what that means for the other big party. Since the days when this nation elected an actor to play the President, the Democrats forgot their reason for being and, at their very best, became Republican Lites. You remember when the word “liberal” was an epithet? It could only be spoken with a sneer and tone of disgust.

In the past year, both my kids were studying American history and we would have nightly discussions about what the major political parties stood for. Why did they exist? These were difficult discussions, because I would talk about how they came into being, starting with the Federalists and Anti-Federalists. There’s nothing better to help clarify the issues then going back to the source.

The problem was that the concepts belying the two major parties bears no resemblance to them today. None. They no longer reflect the principles that they espouse. They are more caricatures then anything else. And that is true of both of them, not just the party that I don’t favor.

Given the outcome of Andrew Sullivan’s study, is this an opportunity for the Democratic party to find its way again, to proclaim that liberalism offers America hope for its future? As much as the Republicans are not shy about selecting judges based on their philosophy to undo the “tragic” decisions of the Warren and Burger Courts, why do Democrats suffer from a pathological fear of praising these Courts and these decisions that gave effect to constitutional guarantees?

The biggest political football facing the courts is Roe v. Wade, a decision that produce the correct result for the reasons that have always been problematic. But for criminal defense lawyers, there are a wealth of decisions that have become so much a part of our practice that the very idea of living without them would be unthinkable. What of Gideon, Miranda, Escobedo? The names are so familiar that we need not cite the full case name. They’re the Cher or Madonna of the law. Could you imagine living without them today?

So, Howard Dean, are you listening? Stop hiding behind the Republican skirts. Stop denying what the Democratic party once stood for. Be proud of your heritage. Pull out that liberal moniker and wear it proudly. State the party’s principles and be proud of them. Let the American people have a real choice of ideals and approaches to the governance of our nation, instead of this mealy-mouthed, lilly-livered, gutless political party that offers nothing except “we’re not the Republicans.” If the Democrats believe in something, anything, now would be a good time to let us know.