Nov. 25, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor, Jeff Gamso, former legal director for the Ohio ACLU, past president of the Ohio Association of Criminal Defense Lawyers and current assistant at the Cuyahoga County Public Defenders.
Q. You came late to the party of being a criminal defense lawyer, following a dalliance as a college professor in English. This may come as a shock to your many fans, given that your writing style makes both Strunk and White cry. What pushed you to teach English? More importantly, what do you know about writing style that the rest of us leaden lawyers are missing? What do you know about the use of written communication that the rest of us have yet to discover?
A. I love Strunk & White. I keep a copy near at hand. It’s a delight. It’s also a nearly worthless guide to good writing. But it has a few great pieces of advice (mostly Strunk’s by the way; I’m not sure White added anything much of value other than a few fun examples and a certain felicity in his own prose, less purely workmanlike than his mentor’s).
Strunk told us to “omit needless words,” though it’s not much use at identifying which words are actually unnecessary, and since (according to White), he would say it three times running, it was a rule he took in a singularly odd way. Strunk also said, “If you don’t know how to pronounce a word, say it loud!” (That, too, thrice according to White.) As a guide to good prose the first is solid advice though worthless in practice. The second is horrible advice for good writing, but points to one of the (unfortunately) valuable tools of persuasion. If you sound like you know what you’re talking about, people will believe you.
As a guide to good writing, the rules Twain offered in his great essay, “Fenimore Cooper’s Literary Offenses” are about as good as it gets. (Strunk and White say many of the same things, but less simply and far less clearly). An author should, Twain said at the end of his list – these without elaboration:
12. _Say_ what he is proposing to say, not merely come near it.
13. Use the right word, not its second cousin.
14. Eschew surplusage.
15. Not omit necessary details.
16. Avoid slovenliness of form.
17. Use good grammar.
18. Employ a simple, straightforward style.
You’ll notice that I have so far ducked the question. I went to graduate school because that’s what one does after college. I went into English because I loved reading and writing and bullshitting about books. Turned out I was a pretty good teacher, and I liked pontificating.
One of the things I learned during the years I spent teaching, specifically from grading papers, is just how much I hated reading bad prose. I’m not talking about the stuff that’s filled with misspellings or problems with subject-verb agreement or sentence fragments or run-on sentences or the ones with the occasional awkward phrase. Those were annoying but it was at least clear what was wrong.
The papers that would alternately put me to sleep or make me wish to throw against a wall were the ones where the awful prose masqueraded as fine writing. The ones where whom was routinely used and who never because of a false belief that who is an aberration of the uneducated and where (I’m quoting White here) “the twenty- dollar word [is used] when there is a ten-center handy.” Especially when the expensive word is really Twain’s rejected “second cousin.”
The obvious lesson is that good writing should be simple and clear. It should read the way a conversation between ordinary people would sound if you cleaned it up a bit; took out the fillers, stammers, and the like; ensured some level of organization so that one idea led to the next, and made at least a minimal effort to obey the rules of standard English grammar and usage. Conversation revised and edited, but conversation.
Except, of course, when you’ve a reason for rejecting all that shit. As Orwell said, “Break any of these rules sooner than say anything outright barbarous.”
But the more important lesson is that if you want to sway your reader you have to keep her awake and reading. Judges (or their law clerks) have enormous stacks of paper to slog through. Keeping the judge (or clerk) awake and interested may not be sufficient to win the point, but it’s pretty much necessary. (Enter plug here for Matthew Butterick’s Typography for Lawyers.)
We are, after all, storytellers. Start with “Once upon a time” or “Arma virumque cano” or “Who’s there?” or “Call me Ishmael” or “It was an incandescent night in Times Square, all manner of humanity engaged in vintage decadence.” Then see what happens.
Q. Not to beat the horse to death, but you also possess an exceptional knowledge of literature, which rears its ugly head from time to time in your writing with your use of quotations that express an idea in ways that awe the rest of us. Has this knowledge given you an advantage as a lawyer in making your point? Is the lack of a broad liberal arts education a handicap for some lawyers, limiting both their ability to think deeply and express complex ideas through the voice of some of the most brilliant words available? For those of us who can’t approach your depth of knowledge of literature, is there any hope for us?
A. What? Me? Quote stuff? OK, I did in the answer to your first question quote not only S & W but also Mark Twain, George Orwell, Virgil, Shakespeare, Melville, and Don DeLillo. And I threw in an allusion to a line generally attributed to Dorothy Parker (though nobody seems able actually to find it in her work). ‘Course I was kinda showing off. (And points to anyone who can identify the sources of both the Shakespeare and DeLillo quotes without Google.)
Ah, the study of language and literature, history and philosophy, those things have taught me much and made me a better lawyer. Study rhetoric and you learn about persuasion. Study philosophy and learn about justice (whatever the hell that is). Study drama and theater and get a feel for commanding an audience and holding a stage, which is what we strive to do whenever we enter a courtroom – trial or appellate. Study music and poetry to internalize cadence. Study literature and feel the power of spoken and written language. Study all of that and more to learn about the human heart.
So yeah, you should all read more. I am a great believer in the value of the liberal arts. I can’t quite advocate a program of nothing but the trivium and quadrivium (and why geometry, anyhow?) but there’s something to be said for its rigor. On the other hand, I should know something about economics and business, and I don’t.
Q. Eventually, you decided to hang up your tweed jacket with the leather elbow patches (did you actually have a tweed jacket?) to go back to school for law. What the hell were you thinking? You gave up a career to not only start fresh, but to leave behind the sanitary world of academia for the nasty trenches of the law. What pushed you to do such a crazy thing? Was there any particular incident or thing that made you realize that law was where you wanted to be, or did you just feel some need to do rather than teach?
A. No tweed. I’m not quite that stodgy. My jackets were corduroy. I loved teaching, but the academic job market is/was . . . . I never had a tenure-track job and wasn’t going to get one. That was circumstance as much as anything, but it was also real. My wife and I were meeting with a friend, a lawyer, who was giving us wills as a baby present. She said “You ought to go to law school.” It stuck. I took the LSAT, did well enough, and went as an experiment. If I hated it, I’d quit. I didn’t hate it. I owe Dannie my career.
It did take years, though, before I was comfortable enough with the career change so that when people would ask what I did I wouldn’t begin the answer by saying, “I used to teach English.” In time, I discovered that I not only liked what I did but was proud of it. And I learned that I was a criminal defense lawyer. Not as a job but as a person. “To my toenails,” as I sometimes put it.
And, not entirely by the way, I still teach for a living. I teach judges and juries every day. I used to teach novels and poems and plays. Now it’s non-fiction. It’s still stories.
Q. You’ve been involved with the ACLU since 1984, and in 2004, were named the Ohio ACLU’s legal director. Many on the criminal defense have a love/hate relationship with the ACLU. Much as it has done some spectacular litigation in support of constitutional rights, including some very controversial cases such as the Skokie free speech case, it has also made choices that traded off one right against another based upon what might dubiously be characterized as its political preference. Did you have any trepidation about joining as legal director? Were you on board with the ACLU all the way, or did you have some doubts about its choices from time to time? Was there any position taken by the ACLU that you think was either wrong or crazy? Was there ever a time when you said to yourself, maybe this isn’t the right place for you?
A. Before I was Legal Director, I was on the Board for 15 years. At one Board meeting, and in a context I don’t recall, the president said of the Board, “There’s nothing we can’t argue about.” One Board member jumped up and shouted, “That’s not true.”
Yeah, I have some disagreements with ACLU positions. I imagine nobody in the ACLU agrees with everything it says or does. Hell, the ACLU itself can’t always decide what it thinks. After the first Rodney King verdict, the ACLU briefly dumped its opposition to the separate sovereignties exception to double jeopardy so that the cops could be federally prosecuted. Wiser heads prevailed in time. But it wasn’t a noble time. (Nor was it in the 50s when they threw the communists off the national Board.)
Many affiliates, particularly in the western states, would like the ACLU to say something substantive in favor of Second Amendment rights. Much, probably most, of both the membership and the national Board favors strict gun control. Officially, the ACLU has almost nothing to say on the subject. I’m a free speech absolutist. So, traditionally, has been the Ohio affiliate. Nationally, not so much in recent decades.
The ACLU generally supports civil rights, seeing equality as a civil liberty. But there can be tensions in dealing with, say, hate speech. The ACLU’s wishy-washy position has been an ideological problem for me, but I never actually had to deal with the conflict. And ACLU is nowhere near strong enough in its denunciation of revenge porn laws as unconstitutional. Sigh.
Of course, every affiliate and Legal Director has favorite issues. We focused more on criminal law related issues during my tenure than during that of my predecessor. And while there’s a battle sometimes between an open courtroom/free press and the right to a fair trial, it never came up while I was Legal Director. Since then, I’ve advised lawyers on how to argue against the ACLU on that issue. The ACLU wins it every time.
My real problem with the ACLU – I hate civil litigation.
Q. As legal director of the Ohio ACLU, what role did you play in determining the allocation of scarce resources? It would seem that there would be quite a bit of internal controversy of whether to take one side or another in a dispute, or whether to get involved at all. How much of a vote did you have? What forces drove you to say, this is something we need to get involved with? What about the internal fighting over whether to become embroiled in a fight, and what position to take? Did you ever think afterward that you made a mistake and should have kept your nose out of a controversy?
A. I’d been on the Board for 15 years before I became Legal Director. The Executive Director and I were and are friends. I knew that we all were pretty much agreed on what we thought was important and what we wanted to pass on. Along with the General Counsel and the Board, we’d sometimes debate the merits of taking something on, but the debates weren’t contentious. I can think of only one time I wanted to do something and the Board said no. In hindsight, the Board was right.
I didn’t have to go after the job. I chose to, knowing pretty much what I was getting into. I did think that after years of doing nothing but criminal defense I would no longer hate civil work. I was wrong. Still, on balance it was a great gig that I enjoyed immensely and learned a lot from. And afterwards I was energized to return full-time to defending the accused.
Q. After leaving the ACLU in 2009, you started a firm, Gamso, Helmick & Hoolahan. This was a pretty high-powered criminal defense firm, with your partner, Jeffrey Helmick, getting the nod a few years later as a District Court judge for the Northern District of Ohio. No small feat for a criminal defense lawyer, I might add. What made you decide that a private law firm was the way to go after dedicating your efforts to cause lawyering? While criminal defense may have some of the aspects of working for the ACLU, it also has some business pieces that couldn’t be pleasant for a lawyer who wanted to spend his time saving lives. What drove you to private practice? Did you find it to be right for you, or did you make a mistake? And what type of businessman did you turn out to be?
A. I’d been in private practice for years when I left for the ACLU job. In fact, it was Gamso, Helmick and Hoolahan before, then it became Helmick and Hoolahan, then GH&H again. Actually, it was Helmick, Prajsner and Hoolahan when I first rented space in that office. A while after Mark Prajsner’s untimely death, H & H invited me to go in with them.
As I keep saying here, the ACLU gig was great. But the logistics of my life made it time for me to resign. And I was eager to get back to criminal defense where I always felt more comfortable than doing civil work. It was an amicable parting. I still do some volunteer consulting, speaking, and brief writing the ACLU. And they’re amicus in one of my cases. We’re family.
The business part of private practice? As you know, I’m a public defender these days. Had there been a regular, full-time PD office in Toledo, I’d probably have been one years ago. No need to chase down fees and now I let someone else meet the monthly overhead.
Q. Your criminal defense practice included some of the most brutal representation there is, death penalty cases. How did you get into that? Some see it as a challenge. Some as a duty. But it can also be the most painful, miserable representation possible. What made you take on the burden of other people’s life or death? Death penalty defendants can be among the worst of the worst, which means that you, as lawyer, need to steel yourself to the things with which a client has been accused. Were there times you just couldn’t bear sitting in the same room as a defendant? Did you ever walk out of jail saying you just couldn’t do this one?
A. I started working on capital cases in Texas while I was in law school. It’s the most interesting and challenging work around, and the community of capital defense lawyers is welcoming, comforting, supportive, and always ready to help. Of course, many of the clients have done (and sometimes been falsely accused of doing) truly horrific things (which is true of many clients of most people who do serious criminal defense), they’re not monsters. Sure you steel yourself. But you also learn their humanity. As Helen Prejean says, we’re all better than the worst thing we’ve done.
Here’s what we know about the work. If you try enough capital cases, sooner or later you’ll represent someone who gets sentenced to death. If you represent enough people who have been sentenced to die, sooner or later one will be executed. Maybe on your watch. I’ve never put anyone on the row, but while I’ve had post-trial wins, there are also those I’ve not managed to save. I’ve represented, at some point in post-trial process, 7 who were ultimately executed. Twice I was counsel at the end, once in the main litigation and once in a collateral challenge.
Yet I keep coming back.
Q. Your experience with death cases has been a huge source of your writing, both on your personal blog as well as Fault Lines. And for those of us who have never done a death case, your experiences have given us an insight into what it really means to be responsible for the literal life of another person. What is the pressure like? Did you find the resources available to you sufficient to do the job? Is there a level of expertise that death penalty representation demands to be effective? Do the lawyers representing death penalty defendants have the chops for it, or are there too many who take on these cases and, because of their own lack of skill, leave their clients to die for their mistakes? And what of the lawyers who decide to give up the fight because they don’t believe they can win?
A. Losing a client is devastating. Many lawyers, good ones, give up the work after that. I’ve learned that I’m one of the people who can get up the next day and work on another capital case. I call that a mental illness, though it hasn’t yet been catalogued in the DSM.
As it happens, I was on a panel at a death penalty defense CLE the other day when the question came up of whether we were required to be more attentive, more diligent when doing death penalty work than other criminal defense. We all gave the same answer: No, you’re supposed to work as hard at every case. But given the stakes and the pressure, lawyers are probably more careful when doing capital work.
That much said, there are still terrible lawyers doing capital work. Some are inexperienced. Some incompetent. Some lazy. Some just don’t give a shit. (A few are in it for the money, but there’s so little money that the number of those is very small.) R.B.G. said she’d never seen a case with good lawyering. A bit of an exaggeration, probably, but the reality is that when the lawyers are good and manage to get something close to the necessary resources (only in federal court is there actually a chance of getting what you really need, and then it’s not a sure thing), the client very rarely gets sentenced to die. R.B.G. just doesn’t see those cases.
Steve Bright famously described the death penalty as not for the worst crime but for the worst lawyer. In the [last] words of John Spenkelink, it’s called “capital punishment” because “them without the capital get the punishment.”
Q. Among the epiphanies you’ve revealed, one of the most fascinating is that convicted murderers are almost all given a death sentence, the only real question being whether it’s fast or slow, the life in prison without possibility of parole sentence. How did you come to see it this way? Does it really matter, if a defendant will never breathe free air again, whether his sentence is death by execution or death in prison? Is there really a point to the fight against execution?
A. The difference between a death sentence and LWOP [life without parole] isn’t where the person will die. Both sentences are Death in Prison. The difference is the agency of death. With a death sentence, the judge says you’ll be killed. With LWOP the message is that you will die. Does that difference matter? They’re both terrible sentences, different sorts of cruelty. Some of the condemned may prefer execution (though that’s often because we provide years of mental torture to the point of making them suicidal). Most would still choose LWOP.
But as Potter Stewart said in Furman v. Georgia, the “penalty of death differs from all other forms of criminal punishment, not in degree but in kind.” And in person. Capital punishment is about us, not just them. Unlike LWOP, capital punishment turns us into killers as the victims are killed in our names. Robert Blecker and Bill Otis may feel good about that. I don’t.
And, of course, it’s irreversible. No oopsies.
Q. Among death penalty defenders, the argument proffered is that anything that delays the execution of a human being is worth the effort. This explains fights over drug protocols, which really has little to do with whether the state should be in the killing business, but rather just the means by which death occurs. Does this trivialize the big picture, that the death sentence is either right or wrong in itself? Does it undermine the seriousness of executions, by fiddling with the mechanics? Is the fight about the state killing at all, the system being too unreliable to do something as permanent as taking a life, or is it about saving one life at a time, no matter how horrible the crime?
A. They’re two separate fights. I don’t have a slippery slope problem. I oppose the death penalty for everyone. No Pol Pot/Hitler/Stalin/Tim McVeigh/ISIS/whoever exception. Abolish it. Now. Great.
Years ago, I was at meeting of Ohio abolitionists called to debate and decide whether we should advocate for a moratorium on executions knowing that, rather by definition, a moratorium will eventually end. But every day it lasts is a day we don’t kill anyone. There have been similar arguments in the capital defense and abolitionist communities over whether to support ending the death penalty for juveniles (DONE) or for the seriously mentally ill (NOT YET) or any other subset of the condemned. Sure, you save a few lives. But after that’s all done, the fear is, we can feel great about killing the rest.
There’s the argument. But those lives get saved. And the republic survives.
To condemn lethal injection litigation as trivial is to miss a few serious points. First, these are our clients. If they’re going to be killed despite our best efforts, we still don’t want them to suffer torturous, agonizing death. Second, as the death penalty becomes harder and harder, and more and more expensive to carry out, the more reason there is to abolish it. Third the longer we go without killing anyone, the more obvious it is that we don’t need to kill. Fourth, and finally, saving a life even if only temporarily is still saving a life; hell, all our lives are only temporary. Every day brings each of us closer to death.
I’ll argue for abolition on grounds practical and theoretical and moral. But as a lawyer, I don’t represent arguments. I represent clients. This one today, that one tomorrow. Insofar as it helps this client, I’ll certainly argue that the death penalty is unconstitutional. But my thrust is saving this life. And then the next one. The winning arguments for the clients aren’t typically the global ones. They’re case specific.
Not this guy. Not now. Even if we’re going to have a death penalty, he’s not one who should be killed.