Category Archives: Cross

Category for crosses, to make them easier to separate out from other posts.

Cross: District of Colorado Senior Judge John Kane

May 4, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Judge John Kane, Senior United States District Judge from the District of Colorado.

Q. Having graduated law school in 1960, you were nominated and confirmed to the federal bench by President Jimmy Carter in 1977 (well before many Fault Lines readers were born, I should note). What did it take to become a federal judge back then? You were a young man still, merely 41 years old. Did you dream of ending up on the Supreme Court one day? Looking back, did you have the practice experience, the time in the trenches, that a federal judge should have? If you knew what you know now, would you still have taken the job?

A. I never had an ambition to be appointed to the Supreme Court. Having sat by designation with the Tenth Circuit Court of Appeals, while I respect the judges greatly, I have neither the inclination nor the talents necessary to sit on a collegial court. I love the trial court. I love the excitement, the mix with lawyers, witnesses, and jurors and the oft times demands to make quick decisions that, by necessity, are more intuitive than deliberative.
When appointed, I had been admitted to practice for fifteen years. Before admission, I had served as a law clerk for two state district judges. In law school I had been editor-in-chief of Denver University’s law review and directed its transition from a bar sponsored bi-monthly publication to a full-fledged law journal. I had won some academic prizes and both the law school and the all-university oratorical contests.
Perhaps more importantly, our law school was located directly across the street from the Denver courts and, as with many other law students, I watched Denver’s best trial lawyers try cases, and got to know many of them by sharing a few beers at the end of their day in trial. I met many judges through the kindness and interest of these lawyers. I always asked them for advice about becoming a judge. I wanted to become a judge long before taking the bar exam.
In high school, I had belonged to the Prelaw Club and we made field trips to the courthouse. I told judges of my ambition to become a judge and asked for advice. As a consequence, when I went to college, I majored in English Lit and also in Philosophy. I was an editor on the student literary magazine and acted in a number of student theatre productions. I began to learn to write and took courses in jurisprudence, legal philosophy, and constitutional law as taught in the political science department.
When first admitted to practice, I was lucky enough to become a deputy district attorney in a suburban county. In those days, judges were elected on political party tickets. My first assignments were prosecuting cases to justices of the peace and three person juries. Most of the J.P.s were not lawyers. It was a high volume, seat- of-the-pants experience. Eventually, I was assigned to courts of record and prosecuted both felony and misdemeanor cases. I then moved back to Denver and formed a partnership with an African American lawyer. It was the first racially integrated law firm in the state. Our practice was almost exclusively criminal defense work, but this was in the early ‘60s and we were very active in pro bono civil rights cases. I also cut my teeth on a couple of potential death penalty cases.
In 1965, I was selected to be the first public defender in the state. The office was essentially a pilot program in one judicial district that served as a demonstration project that evolved into a statewide public defender system. In that capacity, I defended a great many felony cases and supervised a staff of lawyers, interns and one investigator. I also wrote numerous practice subject articles and gave public speeches about the public defender system. (My first intern eventually became the Chief Justice of the Colorado Supreme Court.) In 1967, I left the public defender position and became the Deputy Regional Director of the Peace Corps in Calcutta, India. There I engaged in program planning and development, negotiations with Indian and state agencies for new programs and did my best to keep Volunteers out of harm’s way.
I returned to Colorado and in 1970 joined what was then considered to be a large law firm where I engaged in civil litigation handling mostly construction cases, will contests and, to my great joy, matters for newspapers, TV and radio stations, and a magazine publisher. In the latter category, cases involved freedom of the press, defamation, gag orders and employment disputes. I continued to write articles and participated extensively in bar association activities such as the formation and early organization of the Litigation Section of the ABA.
When the opening on the district court bench came about in 1977, the two senators from Colorado established a merit selection committee. There were a number of applicants. I was lucky enough to be selected for the short list of three names that went to President Carter. I had never been active in party politics, but my support came from my lengthy contacts and relationships with the media and the contacts I had with leaders of the ABA Litigation Section. Though I didn’t know her and briefly met her once , it clearly didn’t hurt that President Carter’s mother, Miss Lillian, had been a Peace Corps Volunteer in India while I was stationed there.
You asked, “If you knew then what you know now, would you still have taken the job?” The answer is an unequivocal “Yes!” I think I am very lucky and I have never regretted it. One thing I can say with pride is that when I was selected, the senior partner of the firm I was in said he had one request: “Please do not complain about the salary.” I never have and I have always declined membership or association with organizations that promote judicial pay increases. I’m not opposed to pay raises, I’m just keeping my promise.

Q. Before becoming a judge, you served as both a deputy district attorney and a public defender. What impact did those experiences have on you when you took the bench? Did you find one side to be more compelling, to influence your perspective? Was there a sense of pressure to be more supportive of the prosecution, federal agents? Was it a struggle to maintain neutrality? Did you tend to be more supportive of law enforcement or sympathetic toward the accused?

A. I have been fortunate to have had experience as a prosecutor, a criminal defense attorney, and a civil trial lawyer representing both plaintiffs and defendants. I don’t find either side to be more compelling or to influence my perspective. I think each role has its danger spots. Public defenders have far too many cases and can lose vigor. Prosecutors can become oppressive and abusive of their considerable discretion and civil lawyers can become greedy. But these are temptations that discipline and resolve can prevent.
I don’t believe I am influenced by any sense of pressure from the prosecution or federal agents or unduly sympathetic to defense lawyers. All of them put their shoes on one at a time. Candidly, what I do have frequent trouble with is dealing with laws that I think are counterproductive to achieving justice. The Sentencing Guidelines frequently fall into that abyss.
For the most part, I like lawyers and I like other judges. We are all human and I like some better than others. There are some senior judges who contribute greatly to the functioning of the courts and a few others who don’t. For myself, I find as I get older that I spend more time in doctor’s offices than I would prefer and I am not as productive as I once was, but I’m still eager to take on challenging cases and less enthusiastic about the so-called mill run cases.

Q. For years now, you’ve been critical of the job law schools, and particularly academics, have been doing to prepare the next generation of lawyers. What has gone terribly awry with the concern new lawyers have for their own welfare rather than their clients? How have law profs failed to indoctrinate their students into a profession rather than a business? Are the law profs still capable of doing so, since few have ever practiced law? Are the students today capable of appreciating the client-centered duty they assume when they become members of the bar?

A. Law schools are a microcosm of the universities. The early 20^th century economist Thorstein Veblen said that universities should be called “Hire Education.” I agree. The progressive decline of education in the humanities in favor of producing more fodder for industry and corporate America is very disturbing to me. I think law schools offer too many frivolous courses apparently instituted to fulfill the eccentric interests of some faculty members and perhaps even more vapid students.
The basis for arguing that the third year of law school should be abolished is in my view a result of that problem. I think that if law schools are to award a doctorate degree, then at least an acceptable thesis should be a graduation requirement. I also think the first year of law school should include courses in legal philosophy and rhetoric. Dean Roscoe Pound defined the legal profession as “an organized body of men [people] pursuing a learned art in a spirit of public service.”
The practice of law and the craft of judging no longer comport with that definition. Thanks in great measure to Justice Blackmun’s decision in Bates & Osteen v. State Bar of Arizona and its progeny, such as Goldfarb v. State Bar of Virginia, law is no longer a profession; it is a business. I don’t think the legal academy can be blamed for this, but it doesn’t deserve any credit for correcting it either.
As for judging, the courts are nearly entirely immersed in process rather than substance and are on the path, if not already, to becoming faceless bureaucracies. Law students today are products of our culture; it has become a technocracy and the dire foretelling of Orwell’s 1984 and Huxley’s Brave New World is more reality than fiction.

Q. You’ve been one of a handful of judges who has openly expressed disdain for the War on Drugs. Was this your point of view when you took the bench? Did anything happen during your time as judge that made you realize that the drug war had gotten out of hand? What impact did the Sentencing Guidelines and mandatory minimums have on you as a judge? Do you find the Guidelines undermine your ability as a judge to impose what you believe to be appropriate sentences?

A. My open disdain for the War on Drugs is unabated. My years on the bench have increased, not ameliorated, my disdain. The War on Drugs, simply stated, is now and always has been stupid and counterproductive. This nation learned of the folly during Prohibition. What we do is subsidize the black market and criminal syndication.
No sentient person would intentionally set out to do what our society has done. Along with the rest of the flotsam and jetsam of the War on Drugs, we have the world’s largest prison population with its characteristic disparate racial population, we have abandoned the concept of rehabilitation, we have increased the incidence of recidivism and developed a pervasive disrespect for the rule of law. I have no moral problem with the criminalization of illicit drug manufacture, importation and distribution, but sending human beings to prison for possession and use of such drugs is unconscionable. We should not be treating a medical problem as a legal problem.
Even the nascent legalization of marijuana in some states has been ill-considered. The taxes imposed have created market prices that accomplish two things: First, more people who would not have consumed marijuana when it was illegal now do. (The same people who obey traffic laws.) And second, an increased number of consumers soon realize that they can obtain illegal marijuana at a cheaper price than the legal stuff that’s jacked up with taxes. Thus, the black market continues to prosper. Our country experienced the same thing following Prohibition with so-called moonshine. We ignore history and we repeat it.

Q. Having been on the bench both before the Guidelines and after they were held “advisory” in Booker, a mere 16 years later, is there a lasting impact as far as federal sentencing? Do you see judges and prosecutors reared on the Guidelines as viewing sentences that would have been deemed very harsh before the Guidelines as ordinary and appropriate now? Have the courts just become too hardened to the idea of decades in prison such that it no longer seems draconian? Can anything be done to change this?

A. Yes. The Sentencing Guidelines have a continuing impact despite Booker. Those judges who did not serve before 1988 have had no experience sentencing without the Guidelines. Even though the Guidelines are now merely advisory, many of these judges have no other reference point. In addition, the Sentencing Commission continues and does its utmost to promote guideline sentencing. It is not in the judicial marrow to push the envelope and so guideline sentencing remains, for the most part, business as usual.
Are the Guideline sentences too harsh? Many of them are, and that explains why most sentencing variances and departures result in lower rather than higher than guideline sentences. Not all, however; some Guideline results are ludicrously low.
I have seen one Sentencing Guideline recommendation calculating a range of 18 to 24 months for a crime having a statutory maximum sentence of ten years, wherein the defendant had more than twelve previous felony convictions. Such a computation was based not on the crime, the effects on the victims or the risks to public safety, but rather because of reductions for “acceptance of responsibility,” serving as an informant and reaching a plea bargain early on so as to save the government time and expense in preparing for trial.
In another case, the defendant had been convicted of three separate counts of identity theft and making false statements to government officials and lying to obtain citizenship after having been adjudicated a human rights violator in Ethiopia, such that the total maximum sentences imposed consecutively totaled twenty-two years. The Guideline calculations came up with a recommended sentence of zero to six months on two counts followed by a mandatory twenty-four months on the third count. I stated in my opinion, later affirmed and cert denied, that his crime and character were equated by the Guideline calculus in the same category as some Mexican national using his brother’s drivers license. See my sentencing opinion in United States v. Worku, 12-cr-346-JLK (D.Colo. 2014). I think it’s worth the read irrespective of this interview.
The other problem is that the Guidelines result in algorithmic sentences that have no connection whatever with individual characteristics or the qualitative differences in characteristics that are allegedly considered in formulating the Guidelines and producing “calculations.”

Q. You’ve been a strong supporter of free speech, as reflected in your decision in the Diana Hsieh case, where you compared her “personhood” paper to Thomas Paine’s Common Sense as quintessential political speech. Is free speech under attack today? There have been fervent cries to end what’s called “hate speech,” to eliminate First Amendment protections from speech that people find hurtful. What has happened to our appreciation of speech? Is this a problem that exists only on college campuses, or is this happening throughout our society? Are these calls for curtailing free speech finding any support in the judiciary, or are the courts still behind First Amendment protections?

A. Free speech has not received very good treatment from the Supreme Court. Commercial speech was not and is not what free expression is about. The primary function of free expression is to communicate ideas, not products. The freedom of speech is contained in the 1^st Amendment and should be read in that context as related to freedom of religion, freedom of the press, freedom of assembly and petition.
There are some categories of expression that are not considered protected within the free speech ambit. One is obscenity and then there is so-called “hate speech.” That’s the sort of politically correct crap now pervading campuses, such as the law school professor who lost tenure because she failed to warn students in a criminal law class that a discussion of rape might “trigger” someone becoming upset or the situation at Brown University where students were provided a comfort room next to the lecture hall because they might become upset. I am not at all sympathetic with efforts to censor speech because it is “hurtful.” If it is, then more speech is the remedy, not less.
I think the courts continue to support the idea of free speech; it is embedded in our jurisprudence. The problem, however, is that the fundamental purpose of free speech has been confused and abused even to the point that the transfer of money is considered speech. Duh?

Q. You’ve also taken a very firm stand in refusing to acquiesce to official recalcitrance by the Denver police in complying with court orders. In James Moore’s case, you said:

We are demanding the city and county of Denver comply with the law like any other defendant. I once had the marshals seize all the records in the Internal Affairs Bureau, and if I have to do this again in this case, I will.

Were you always ready to take on the Denver establishment? Was it different when you were a young judge? Has anything changed in your willingness to hold the Denver police accountable?

A. I think all organizations, whether public or private, and all individuals, must comply with court orders. No one, including law enforcement agencies, should escape or avoid accountability under the law. To do otherwise is corrupt. If the law is considered unwise, it can be changed, but it should not be ignored or circumvented.

Q. Before taking the bench, you practiced criminal defense and civil rights law in the “hood,” in the only integrated firm in Denver. That was likely a very bold move at the time, and one that could have had significant impact on your career, but it didn’t stop you. Have lawyers forgotten what they do, to take on hard cases, unpopular causes? Are lawyers today far too worried about their own welfare? Have lawyers lost their understanding of what it means to be a professional? What can be done to bring lawyers back to their roots, their dedication to professionalism rather than what makes them happy or makes them money? Is this a law problem or a societal problem, where things like work/life balance are more important than responsibility, character and principle?

A. See my “Swan Song” speech. Stated simply, if being of service to others and being a champion for others is not your primary motivation, there are a hell of a lot easier ways to make a living. I think that practicing law as a service to others and to the stability of our society has many more rewards than net income.

Q. Of all the changes you’ve lived through in your almost 40 years on the federal bench, what has had the biggest impact on criminal law? So much has happened, from the militarization of the police, the drug war, the ubiquity of video, technology crimes. What stands out as the most positive change in law? And what’s the worst change you’ve seen? There are rumblings that the profession of law is on the decline, perhaps even on its death bed. Is it over for lawyers? Is it over for the law?

A. The most positive change in the criminal law in the forty years I’ve been involved is, I think, the development of legal access, the right to counsel for all people. The worst change has been the Sentencing Reform Act and its influence on state systems to implement quantitative rather than qualitative criteria in legal thinking and sentencing.
The administration of justice is a matter of aesthetics, not physics. Human beings are unique, individual and worthy. They are not the products of cybernetic calculations. There will always be law, but what kind of law is another matter entirely. In each instance, it is best to remember Andre Gide’s dictum that “a mind incapable of revolt and indignation is a mind without value.” Of course, our situation is not good; our obligation and reason for being is to make it better.

Photo Credit: Helen Richardson, Denver Post

Cross: Cathy Young, Fighting For The Mind of Feminism

Apr. 27, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Cathy Young, columnist for Newsday, RealClearPolitics and contributing editor at Reason.

Q. Moscow. Not the one in Pennsylvania, either. It will likely come as a surprise to many to learn that for the first 17 years of your life, Cathy Young was named Ekaterina Jung. You moved from Moscow to the United States at 17. What did Ekaterina want to be when she grew up? Looking back on your tender years in the Soviet Union, did you aspire to be a writer? Were you interested in law and civil rights? Did you imagine you would end up a highly respected newspaper columnist in the United States? And what did you think of the U.S. back then, evil empire or land of opportunity?

A. Actually, I wanted to be a writer for as long as I can remember. I was writing fairy tales in block letters when I was four or five and illustrating them myself. My mother still has a couple of those notebooks! I also wrote a couple of installments of something like a first-person column about parenting based on a role switch for myself and my mother—I was writing as a mom raising my daughter, Marina (my mom’s actual name). In one of them, I explained that “we” never sent Marina to day care (some 95% of Soviet children were in day care at the time) and concluded, “The child was growing up free in her parents’ home.” My goodness, I was a preschool libertarian! Not to mention a very weird child.
I actually had dreams of becoming a fiction writer through my teens. I wrote a lot—poetry, short stories, novellas, I even wrote a whole novel set in ancient Rome during the Spartacus rebellion. Journalism wasn’t really on my radar (and of course what existed in the Soviet Union at the time couldn’t really be called journalism). Law and civil rights? Well, as a teenager I was very aware of the Soviet dissidents; my parents were closet anti-Communists who had underground literature at home and listened to foreign radio broadcasts, and unlike many other people with heretical views they did not try to hide any of this from me. Human rights activists like the late Andrei Sakharov, the physicist turned dissident, were my heroes. One thing I certainly never imagined at the time was that someday I would get to interview his widow Elena Bonner, a great human rights activist in her own right.
What did I think of the U.S.? Land of the free, totally. I remember reading an article in a Soviet newspaper that quoted some American professor as saying that freedom in the United States was a myth. And I thought, “Well, if the professor can say that and not only stay out of jail but keep his job, maybe it’s not such a myth.”

Q. You attended Rutgers University and wrote for the Daily Targum (our second Daily Targum writer in two weeks, I hasten to note). For most Americans, who can barely write in English, no less graduate college in a foreign land, that’s an extraordinary accomplishment. What did you want to do as an undergrad? Was writing always the goal? Did you want to be a reporter or a pundit? Given your education in Russia, how hard was it to transition to majoring in English at Rutgers?

A. I actually spoke decent English when I got here, after attending a school in the Soviet Union that specialized in English—and reading very extensively in English when I was still in Moscow. (I made a one-hour trek to a library that had a lot of English-language books!) I spent two years attending a community college—Brookdale, which is pretty good as community colleges go—before going to Rutgers, so you could call it slow immersion. By the time I was an undergrad at Rutgers, I think I was fully bi-lingual, I definitely wanted to be a journalist. My role model was George Will.

Q. After graduating from college in 1988, you wrote a book, Growing up in Moscow: Memories of a Soviet Girlhood. Was that the plan? Did you see yourself as an author, rather than journalist cum pundit? You developed a sense of feminism. How did that happen? What about Mother Russia gave rise to your views? When you came to the U.S., what role did your feminist views play? How did your Soviet view of feminism fit with the American flavor in the 1980s?

A. I actually didn’t have any specific plans for a book at the time. I was writing a column for The Daily Targum, and William Vesterman, a Rutgers professor who was also putting together a collection of short essays as a textbook for writing courses, contacted me about reprinting a couple of my columns (he thought it would be good to include one or two student authors). Bill, who is a great guy—he recently retired—became my mentor. He invited me to speak at his son’s high school about growing up in Russia, and when he was driving me back he asked if I had thought of writing a book. I hadn’t. He introduced me to a friend who, in turn, introduced me to Katrina Kenison, an editor at Ticknor & Fields (a Houghton Mifflin imprint that, alas, no longer exists). I wrote a sample chapter and she wanted the book.
As for feminism, I became a feminist in Russia, which was a very weird society with regard to gender. Virtually all the women were in the workplace, there was a lot of rhetoric about equality, but very traditional views of manhood and womanhood were also enshrined. I remember being very pissed off when someone told me that girls don’t fight. It’s not that I was that eager to fight, it was more the principle of the thing. There was a lot of random sexism like that—the idea that it’s not as important for a woman to be smart, or that it’s a great tragedy for a woman to not get married, or that it’s really sad for a man to have only daughters. (Not that my dad ever made me feel that he had any regrets about having no sons—he never would have called himself a feminist, but he was the most egalitarian man I’ve ever known.) I remember telling another girl when I was 12 that it was unfair that being unmarried was considered shameful for a woman but not a man, and she shrugged and replied, “That’s because if a man isn’t married, it’s understood that he didn’t want to get married, but with a woman everyone knows it’s because no one would marry her.”
When I came to the U.S., I thought at first that feminism was wonderful! I really felt that here people were judged as individuals and not by their gender, and I think for the most part that was feminism in the 1980s.

Q. After the book was published, you started your newspaper career in earnest. How did that happen? Did you start as a reporter, or go straight to columnist? At that point, were you focused on issues of civil rights and constitutional freedoms? Was there a specific focus, political or legal? Did you ever consider going to law school?

A. I actually started writing for the Detroit News in the 1980s, even before the book came out—I think one of Bill Vesterman’s friends hooked me up with them—and it was mostly columns and book reviews, dealing with Russia, feminism, and campus issues. They offered me a column in 1993. I never really did the reporter thing, but I did write feature articles about my trip to Russia for Reason and The American Spectator (this is when Gorbachev’s reforms began—I went to Moscow five or six times from 1990 to 1994). I didn’t focus on legal issues a lot, back then, but I did take a couple of pre-law classes at Rutgers, including one in constitutional law. My professor told me I had a really good grasp of legal issues and asked if I had ever considered law school. I can’t say that I did, though.

Q. Your views reflected a libertarian perspective, small government, personal responsibility. Had that been your politics all along, perhaps even before you arrived in the Garden State? What made you embrace a conservative perspective? Having been raised under the Soviet regime, one can well understand where distrust of government and self-reliance could be highly valued, but did that still hold true in America?

A. As I said, I was a preschool libertarian! I also recall that at the age of 17 I wrote in my diary, “I think generally, the best government is one that makes it presence the least felt in people’s lives.” I had no idea I was channeling Thomas Jefferson, who said it much better! I wouldn’t really call it a conservative perspective though—I never liked the social traditionalism. I will also say that while I think intrusive government is a very legitimate concern in the U.S., I’ve never had much sympathy for libertarians who, as somebody quipped, don’t see much difference between the KGB and the department of agriculture. The size of government and the welfare state in a liberal democracy is a legitimate debate. Liberal democracy versus totalitarianism (or authoritarianism) is not.

Q. In 1996, as a Cato Institute research associate, you co-authored a policy paper, “Feminist Jurisprudence: Equal Rights or Neo-Paternalism?” What was your impetus for getting involved in the legal end of equal rights? How did you come to see the shift from equality to the new paternalism so early? Was this an outlier view at the time? What was the reception to this within the feminist community?

A. By then, I really did not like where feminism was going. The deification of Anita Hill during the Clarence Thomas hearings in 1991 was part of it—I saw an alarming tendency to focus on male bad behavior, on a personal level, in a very one-sided way. The idea that all sexual banter or humor in the workplace is oppressive to women seemed incredibly reactionary to me.
There were some debates around rape that are very similar to what’s happening now; domestic violence was a huge issue after the O.J. Simpson case—again, it’s a real issue, but the focus on women as victims and the vilification of men really bothered me. It seems to be the opposite of treating people as individuals. I don’t think I was necessarily an outlier; Christina Hoff Sommer and Katie Roiphe were two people writing from a somewhat similar perspective at the time. As for the feminist community, I recall Susan Faludi, the author of Backlash!, writing an article for Ms. Magazine where she referred to Sommers and me as “faux feminists.” That was typical.

Q. In 1999, your second book was published, Ceasefire!: Why Men and Women Must Join Forces to Achieve True Equality. What drove you to buck the trend and challenge the perspective of neo-feminism? Do you see the legal trends as helping to achieve equality, or was it driving men and women further apart? Was the gender war already beginning? Was there still hope that it could be reined in before it got out of control? Did your book help?

A. Again, I wasn’t the only one. Katie Roiphe wrote The Morning After, which focused on campus rape. Christina Hoff Sommers wrote about those issues in Who Stole Feminism?, and there’s also a wonderful book by Daphne Patai, a professor at the University of Massachusetts/Amherst, called Heterophobia: Sexual Harassment and the Politics of Feminism. There are a few of us! The legal trends were and are part of the larger cultural trends, but I do think that neo-feminism in general was driving men and women further apart. The call was to treat men as an oppressor class and women as a victim class—so that, for instance, men telling sexual jokes around women in the workplace was seen as trying to “put women in their place,” but women telling sexual jokes around men was fine because women, presumably, have less power.
The gender war was well under way! I mentioned in Ceasefire! an article, I forget by whom but it was in some major publication, that said, “To be a woman today is to be angry.” In 1994, U.S. News & World Report, which at the time was actually a major weekly, had a cover story about “The War on Women.” Some of it, admittedly, was about fundamentalist Islam and the danger it posed to women’s rights. But it also pushed the idea that domestic violence in American society, where wife-beating is held in universal contempt, is organized male terrorism against women.
I actually hoped that things could be brought back to a sane middle, and for a while it looked like radical feminism was in retreat—the Clinton sex scandals definitely dealt it a blow because suddenly, it was the progressive feminists who were saying things like, well, sexual advances in the workplace aren’t necessarily sexual harassment! And then September 11 came about and attention shifted away from gender issues. But of course gender-war feminism hadn’t gone anywhere. I think we all overlooked the extent to which it had captured college campuses, and now the young people who were in college back then being fed radical feminist theories on “the dynamics of gender and power” are largely running the media. It’s scary.

Q. You’ve since become a clear voice of what might well be described as old school feminism, equality as opposed to special treatment of women as too fragile to be responsible for their choices. What happened to the fight for equal rights? What started the cries for special treatment for women? Is there any merit to the demands for special treatment? Does the fact that women were the target of discrimination give rise to some justification for paternalistic laws?

A. I thought I was a “professional female misogynist,” as per Amanda Marcotte! I think there has always been a tension in feminism between equality and paternalism (or maternalism?), going all the way back to the 19^th Century. But it’s several things, really. One, I do think that in terms of political and legal issues, feminist battles have been won; what remains is what I’d call work-life balance, and those issues are much, much tougher to solve, because they have a lot to do with personal choices and relationships.
So because the political movement still needs something to do, there’s a compulsion to seek out oppression in the most trivial places. (Like “manspreading”!) Two, I think many feminists have this bizarre idea of male power where men have always been able to do anything they want and not have anything bad happen to them, so if anything bad or demeaning happens to a woman, it’s patriarchy, obviously! Now, I don’t buy into the idea that some men’s rights people have that men and women have always been equally oppressed, but this notion that men just breeze through life doing whatever they want is ludicrous. And of course if that’s what you believe, you’re going to feel that women are wronged all the time.
I also suspect that for some feminists, the clamoring for special protections comes from a hidden attachment to traditional male and female roles. They want to be the damsel in distress, but with a politically correct twist.
Plus, it’s not just feminism. Identity politics and demands for special protections are all the rage right now—on the left and now also on the right, with the Trump phenomenon. Let’s complete the circle of oppression with identity politics for white guys!

Is there any merit to special treatment for women? Well, there are times when pregnancy and childbirth obviously create issues that don’t exist for men. But I don’t think past discrimination justifies special treatment. Otherwise, you just end up with more discrimination, now at the other end.

Q. You are a regular columnist and op-ed writer for a slew of newspapers, such as Newsday, New York Times, Wall Street Journal, Boston Globe and Reason, critical of legal protectionism, particularly when it comes to issues of rape and sexual assault. Your interview with Emma Sulkowicz, the “mattress girl” of Columbia University, was attacked as being “anti-feminist” because you weren’t sufficiently supportive, and had the audacity to include her putative “rapist’s” perspective as well. Is it possible to report or opine about rape today with any balance without being called “anti-feminist” or misogynist”? Has feminism become intolerant of anything besides adherence to its orthodoxy?

A. I’ll just answer those two questions at the end:
No.
Yes.
On a more serious note—obviously, it’s a big country and a big Internet, and of course someone is always going to call you names. The problem is more when that kind of intolerance becomes mainstream, when you have, for instance, people disinvited from college campuses because they have the heretical opinion that the presumption of innocence should apply to rape cases. It’s happened to me, too. There are feminists who respect dissent, but the dominant strain of feminism today is the fundamentalist one, for lack of a better word.

Q. You’ve also waded into the culture war of GamerGate, calling it “a backlash against a particular kind of feminism, one that has a tendency to look obsessively for offences, read ideology into everything, and demonize male sexuality under the pretext of stamping out ‘the objectification of women’.” Are women wrong to find “objectification” unacceptable? Are their complaints legitimate, or are they searching desperately to find offense where none exists? Where is the line? At what point does the demand for equality turn into demonizing males without justification? Is there a right and wrong side to GamerGate?

A. Reactions to “objectification” are a very personal thing. I have a good friend who can’t stand the “social justice warriors” and sympathizes with GamerGate, but is also annoyed by some of the ways women in many videogames are gratuitously sexualized—meaning when it doesn’t suit the character well. However, she’s been able to find a lot of games she likes and doesn’t go crusading about it! Honestly, I think it’s a legitimate issue to bring up, but you need to pick your battles. Some of the complaints have been really nasty and ridiculous, like “Catwoman in the Batman games is too sexualized.” Wow, Catwoman is sexualized? What next? The Joker is too sadistic?
As for when the demand for equality turns into demonizing males…I think when you start using “man-” as a pejorative pretext, you’ve definitely crossed that line.
GamerGate is a complicated phenomenon. It has its bad elements, like any anarchic movement. I’ve written before that any backlash against radical feminists and “social justice warriors,” even if it comes primarily from sane people, is going to be a magnet for actual misogynists and bigots. GamerGate does have that fringe. Unfortunately, the mainstream media contributed to the problem by demonizing the movement en masse, which empowered the extremists.

Q. Another issue you’ve focused on is the campus sexual assault issue that has driven colleges and universities to create adjudicatory systems that are long on believing women, no matter what, and short on due process safeguards for men. Is this the neo-paternalism you foresaw in 1996? Have things gone too far to be salvaged? What do you see as the by-product of higher education that has forsaken concern for males in favor of females? Will this leave a scar in the culture war that may never heal? Can women return to the days of equality after eschewing it in favor of special treatment? Will there ever come a day when feminism returns to equality?

A. Oh, what we’re seeing now is the chickens of the 1990s coming home to roost. The campus programs that Katie Roiphe and Christina Hoff Sommers and I wrote about—they faded from visibility for a while, but now they’re back with a vengeance. Affirmative consent was a new idea back then, and even most campus activists considered it too radical; but it was being promoted in a lot of campus sexual assault workshops, and now vast numbers of students think it’s normal, or at least they say they think it’s normal because I doubt that many people actually practice this.
It’s not just males versus females; college campuses right now, especially the more elite schools, are in the grip of completely insane identity politics. It’s doing major, major cultural damage. Can we pull back from that? I hope so. A return to sanity on gender issues will have to be a part of that, but only one part. I see some hopeful signs, but there will have to be a lot more people speaking out for a humanist vision based on equal rights.

Cross: Cristian Farias, From Fault Lines To The Supreme Court

Apr. 20, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses former Fault Lines contributor Cristian Farias, who is now the Supreme Court reporter for Huffington Post.

Q. As all good Jersey boys who can’t sing do, you went to Rutgers, and chose journalism as your major. What motivated to you to want to write? Was this a matter of “writers gotta write,” or did you have grander aspirations? You wrote for the school paper, the Daily Targum, while at Rutgers. Was there some particular area of journalism that got your blood flowing, or was it all about the writing? And even as a student journalist, you broke a big story. What was that about?

A. From even before I went to college or settled on journalism school, I knew I could string sentences together but had no inkling that writing would one day become a career. I hadn’t even declared a major when I saw call for submissions at a low-brow, no-name digital music “zine” that was looking for new writers. My first article was a music review of a Pearl Jam CD, back when CDs were a thing. I didn’t get paid a dime for it, but the editor liked it and asked me for more stuff. You could say seeing my byline next to a published piece lit the spark that set me down this path.
After about a year of working for nothing, I decided I should maybe study journalism. But by then I began getting paid for it, and getting groomed by professional journalists on how to write, proofread, and structure stories – still in the narrow field of music journalism, but enough to eventually getting published by the likes of Billboard and working directly with record labels writing artists biographies. The gig helped me pay for college: on graduation day, I was more worried about a deadline I had to meet that day than actually walking.
As for the story I broke as a student reporter, I discovered that Rutgers, at a time it was seeking to grow its collegiate sports program, had hired a building contractor for its football stadium expansion that had recently been fired by the state of New Jersey for all sorts of building irregularities in dozens of schools it had built. The story basically made Rutgers look really bad because it gave the impression it didn’t do its do diligence prior to hiring this company.

Q. After college, you went for a test drive in journalism. How did that go? You didn’t stick around very long. Why not? And from there, you headed orthogonal and became a probation officer for the New Jersey Superior Court. Why P.O.? You worked with felony offenders, both to help them out of the hole and enforce the rules. What was it like? What did you learn from working with probationers? Did you come to love them, hate them, both? How did it affect your view of the “guilty”?

A. When I graduated from college, I had already been in journalism for several years and had upwards of 1,000 clips to my name – I had met Bono, gone to a few cool shows, and enjoyed other perks that come with doing entertainment reporting. I loved what I did. I took a chance with probation after I received an unforeseen phone call from the state of New Jersey – they were seeking bilingual pretrial officers to write presentence reports. I had no idea what those things were, but came to find out it’s a lot like journalism – you interview defendants, review the facts underlying a conviction, call up family members and dig up the person’s family, medical and criminal history, and then put together a narrative for the sentencing judge to make an informed decision. And it was a 9-to-5 job, which was a nice break from the weird work schedule of a freelance reporter.
After about a year of writing reports, I requested a transfer to adult supervision, and that’s where I really learned the nuts and bolts of what people commonly associate with probation: office visits, trips to the local jail, drug testing, home visitation, violation hearings, and generally keeping up with all your clients.
I was really committed to all of them. They teach you this bromide in probation that you’re equal parts a law enforcer and a counselor, so I tried hard to strike a balance between toughness and compassion. A dirty urine for weed wasn’t enough for a violation for me, but it may have been for other officers – as much as I could, I tried to keep my clients away from having to go back to court and instead pressed for them to go back to school or to get a decent job.
I wouldn’t say I loved them, but in speaking with and getting to know them, I came to understand why they may have gotten in trouble with the law in the first place. More often than not, I sensed their guilt stemmed from sheer stupidity, stressful living conditions or hanging with the wrong crowd, not a hard-and-fast guilty conscience. Most of them were harmless and just wanted to get on with their lives.

Q. As a probation officer, you were primarily assigned Spanish-speaking defendants, which is understandable given that you’re a native Spanish speaker. But was there a sense that you were pigeonholed because of it? And what about your defendants, who were also Spanish-speaking? What role did language play in their success and yours? Did you ever get the sense that if they were given great opportunities, language notwithstanding, they would have been CEO of I.B.M. rather than on probation?

A. My caseload was different from everyone else’s in that I was not assigned to a specific neighborhood or town, as my colleagues were. Instead, I supervised the vast majority of Spanish-speaking defendants in my unit, all of whom were scattered geographically in a large county, which meant people from different walks, countries, socioeconomic backgrounds, and even types of crimes for which they were put on probation. I didn’t feel pigeonholed by the assignment at all – in fact, I relished the fact that I got to take longer drives and have a broader reach than other officers who were just assigned to a particular hood.
Speaking in Spanish is interesting because there are certain nuances about it that force you to address your clients in a forceful but very formal manner – almost as if you’re dealing with cadets in a military school. I kept it cordial, but I was also extremely formal with them and even had a habit of wearing a tie to the office, which almost no one did. I thought of it was a simple but important way to command respect while showing that I respected them, independent of what they may have done that got them in trouble.
But perhaps the biggest realization that came with communicating chiefly in Spanish with them was learning how little they knew about the criminal justice system, due process, and the things you see on TV such as Miranda warnings and the right to an attorney who speaks in their language. Not that they didn’t receive any of these protections, but the language barrier, it seemed to me, led to some unfortunate convictions simply because they didn’t know how to explain themselves to their lawyer or didn’t understand that pleading guilty in exchange for no prison time still means you’re guilty.

Q. After a couple years at probation, you went on to law school. What made you decide that law school was where you wanted to be? With your background at probation, did you go into law school with the idea that you wanted to practice criminal law? How hard was it to go from earning a living to going back to law school? How did you fit in with the “kids”? You were “managing articles editor” on law review. Was that because you had too much free time, or were you back to “writers gotta write”? You also continued to freelance write and publish throughout this time. Did you wonder whether law school might not be where you belonged?

A. So many loaded questions. Being a probation officer made me realize that I could effect change as a criminal defense lawyer before it was too late. So yes, I set my sights on practicing criminal law. But then something weird happened in law school: I discovered this thing called the Constitution, and started learning about civil rights, equal protection under the law, and the general awfulness of the Supreme Court in safeguarding some of these things.
Perhaps as a result of that awakening, my first summer internship was in the Office of Pro Se Litigation in the Southern District of New York. U.S. Magistrate Judge Sarah Netburn, who was the office’s chief counsel at the time, hired me because she thought I would do well, given my background, reviewing civil rights filings by state prisoners and others who alleged abuses by New York cops. It was a cool gig that taught me a thing or two about drafting orders and judicial opinions. And it allowed me to meet a lot of people and hobnob with a few federal judges, including Chief Judge Loretta Preska, who is extremely personable and a lot of fun after she’s had a few cocktails.
I happened to fit in very well with the kids because CUNY Law School doesn’t accept many of them. At the time at least, many of its applicants had impressive careers in public service or doing quasi-legal public interest work, so it was heartening to be able to study alongside people who actually had some working knowledge of the world and its messiness. And yes, going back to school for no pay or benefits was generally terrible—my wife deserves an award for tolerating my law school experience and the massive pay cut. But the experiences were invaluable, and as doors have opened along the way we have marveled at how all of these milestones actually fit together.
As for law review, I had heard about it and I thought it made sense to do the grunt work given my background as a writer and editor. It was thankless, grueling work – and I never had delusions of grandeur from it – but I figured it couldn’t hurt on my résumé.

Q. During law school, you became involved in Latino rights. What caused you to put your energies toward the cause? What were you experiencing that made it important to you? Was this a matter of prejudice that you experienced, or was this a broader concern for the Latino community? Did non-Latinos “get it”? What is it that needed to be told but didn’t manage to get through? Is it getting any better?

A. I got involved with CUNY Law’s Center on Latino and Latina Rights and Equality because its director at the time, now New York Court of Appeals Judge Jenny Rivera, is a badass. She picked two fellows a year to help her with her research and the center’s work, so as soon as I learned about the opportunity, I sprang for it. I was floored when I got it. Working for the cause, as you call it, comes from a recognition that Latino rights, for a long time, have been subsumed in the larger discourse and struggles for the civil rights of blacks in this country.
But Latinos, like my clients when I was an officer, face very unique struggles – language barriers, the fear of immigration repercussions, discrimination in housing and lending, abuse by employers who steal their wages, and other kinds of marginalization. A lot of this is simply on account of the fact they don’t know better, are poorly educated, or simply because they are reluctant to speak up. So to the extent that the work we did helped illuminate these issues and the long road still ahead, it was an extremely valuable experience.
As a side note, a lot of my former bosses are now judges, so that’s probably a good sign for whoever decides to employ me in the future.

Q. You came out of law school in the midst of the worst job dearth for new lawyers ever. What did you want to do coming out? What was your dream job? Was it all crim law, or would any law do? Prosecution or defense, or either? Was there a direction in law that you were burning to go, but the opportunity wasn’t there? And how, at this juncture, did writing fit in? Was there still some place in your head that wouldn’t let go of your desire to write?

A. My dream job was either in criminal defense or civil rights work of some kind. That’s it. The former, in particular, was fueled in part by what I did my second summer out of law school: I went back to the Southern District, this time to the Federal Defenders of New York. That office has a number of lawyers with decades of combined legal aid experience – enough to make you want to become a public defender. It was interesting, because it has this reputation as an elite office, given some of the client’s it’s represented, including New York’s infamous Cannibal Cop and some high-profile terrorism defendants.
But it also has a number of run-of-the-mill drug cases. Perhaps my happiest and most fulfilling memory from that summer was when I helped win a sentence reduction motion for a client who was sentenced under now outdated guidelines for crack cocaine. His case was old, he was Spanish-speaking, and he had tried a number of times to seek a reduction, but he was always denied. There was also a gun involved in his offense of conviction – which wasn’t even his and he never touched – so that complicated the case a bit. But we won the motion and my guy got five years chopped off his sentence. Sadly, he still has seven more years to go, so it was a bit of a Pyrrhic victory.
It’s funny, because the other day I saw the attorney I worked with in that case at the Supreme Court — he was arguing a case in favor of a sex offender who was challenging a 10-year sentence under a silly statutory enhancement for “aggravated sexual abuse … involving a minor,” even though the guy’s prior conviction was for conduct he engaged in with his former adult girlfriend. Go figure. The court didn’t buy his argument. But Elena Kagan, joined by Stephen Breyer, did — she may be the next Scalia.
Of course, I would’ve gone back to work there after law school in a heartbeat. But they don’t take brand new law school graduates – they want you to pay your dues being an overworked public defender elsewhere. I don’t blame them – I hear baby lawyers can be hard to deal with. But I wasn’t just any baby lawyer. Maybe I’m digressing. Maybe in a next life.

Q. You took some initiative by writing freelance posts for Slate, The New Republic, and other outlets after law school. One of your Slate posts caught the eye of New York Magazine’s Jonathan Chait. Then, in one of the ballsiest moves ever, you proposed to New York Magazine to take you on as their legal/Supreme Court writer. Where did that come from? Did you think this was going to happen, or was this just a shot in the dark? What about when they said “yeah, sure”? Did it hit you that you, fresh out of law school, were about to have your words dissected by a million eyes looking to rip them apart? Did you say to yourself, “holy crap, what have I gotten myself into?”

A. As I was having epiphanies about doing civil rights work, I began to pay a lot of attention to the Supreme Court and to important civil rights cases, including the big stop-and-frisk lawsuit in New York and challenges to the Voting Rights Act and to affirmative action programs. While I was still in law school, I actually wrote an op-ed in Spanish for El Diario, New York’s Spanish newspaper, about one of those decisions, and once again, seeing my byline in print kind of awakened my journalistic sense. That set me on my post-law school path to write about legal issues – I started tweeting more, blogging more, writing more op-eds, reading Simple Justice more. In short, I wanted to bring myself up to speed on writing about the law for a general audience after writing law school hypos and essays for three years. I needed to reconnect with my roots.
The Slate post that got Jon’s attention was an analysis I did of something Justice Sonia Sotomayor said during oral arguments in King v. Burwell, the second big Obamacare case. That thing went sort of viral – an editor there told me it was the most-read legal piece on the site in March of last year, and it was shared more than 35,000 times on Facebook. Jon called the piece “smart,” which was very kind of him.
We spoke informally a few times afterward, and after noticing his own outlet didn’t have someone writing about the Supreme Court, I made my move and connected with one of the editors at New York Magazine, who liked my work and voice and brought me on board to cover all the end-of-term cases – including the Obamacare case, gay marriage, a fair housing case, and a “Facebook threats” speech case, among other big cases.
Interestingly, my proudest work at New York Magazine had nothing to do with the Supreme Court, but with New York: The story of Kalief Browder’s death last summer and Cesar Vargas’s admission to the New York bar as its first undocumented lawyer are two of my most favorite things I’ve written.
Seeing some of these articles blow up and getting read by a huge national audience is truly something I wasn’t quite ready for. But as I look over the stepping stones and how life was teaching me and grooming me for this moment – taking me through journalism to work in the criminal justice system to law school and then back – somehow made a lot of sense. I had to embrace it and accept that this was perhaps what God was preparing me for.

Q. After the end of the Supreme Court’s term, you had some choices to make. Law or journalism. While one choice, becoming one of the “founding writers” at Fault Lines, was certainly a wise one, what was going through your mind? Did it concern you that if you pursued journalism, you would never practice law, never cross-examine a witness, never get to feel what it was like to get a two-word verdict? Do you ever wonder how you would do in the trenches, with someone’s life in your hands? Would you still like a shot at taking a case to trial?

A. Yes, to all of the above. In a way, I haven’t discounted working as a criminal defense attorney, or a lawyer more generally. But at 35 and with a wife and child to support – plus school loans to pay — you have to make choices. If all of this had occurred at 25, then I’d be making different calculations. But then again, at 25, nobody really hires you to write full time about the Supreme Court unless you have some working knowledge of journalism, the law, and how the institution works. So in a way, I’m grateful that things turned out the way they did. At this juncture, I’m not sure that I’ll ever get to step in a courtroom other than to cover oral arguments. I think I can live with that.

Q. After your gig with New York Magazine, you caught the attention of The Huffington Post and went to work with them as their Supreme Court reporter. What was it like to walk into One First Street and know that a million people would learn what the Court decided based on your writing? Did you feel a huge sense of responsibility? Were you afraid of the prospect of writing something that might get it wrong? What about the “deans” of Supreme Court journalism, the ones who had been writing about law for decades? Did they welcome you? Was this a fraternity of legal journalists who talked about cases, shared their thoughts, discussed what happened before them?

A. Covering the court as a “beat” rather than as a freelance assignment are two vastly different responsibilities. I was a little intimidated at first because as an outsider I just thought it was a matter of showing up and start covering things. But there’s actually this very formal relationship between the court and the press that takes some time getting used to.
Chris Geidner, BuzzFeed’s legal editor, explained it to me in a way that sounds weird but makes a lot of sense the more time I spend at the Supreme Court. He explained it in terms of concentric circles, with the innermost circle belonging to the “deans” of the court – NPR, The New York Times, The Wall Street Journal, The Washington Post and others. Then come the specialized press that’s always there but covers the court for a specialized legal audience, like SCOTUSBlog, The National Law Journal, and Bloomberg BNA. After that is the press that Washington reads – the POLITICOs of the world. Then there’s the digital media outlets that cover the court regularly, like The Huffington Post, BuzzFeed, and Slate. And finally it’s everyone else: Those who only show up only for the big cases, like the immigration one on Monday. It was a madhouse in there, and I probably knew about 20 percent of the reporters there, if that.
The court has a different relationship with each circle that it’s somewhat hard to explain in a limited space, and learning to understand that has taken some getting used to. But on the whole, the court has been very accommodating and helpful in facilitating my coverage. My editors have also been very encouraging in guiding me and reminding me that we’re writing for everyday Americans – that our audience is broad and social and engaged by writing that is lively, accessible, and not overly wonky or too dense. Being reminded of that has allowed me to lighten my prose a bit, but never to sacrifice accuracy for the sake of expediency.
As for the other journalists “who live” at the court, most of them have been very kind – though I’ve noticed that it’s easier to build a rapport with younger reporters with whom you share a concentric circle. That’s not to say I haven’t built bridges elsewhere. Some of the nicest people I’ve encountered are Tony Mauro and Marcia Coyle of The National Law Journal, as well as Kimberly Robinson of Bloomberg BNA, Lawrence Hurley of Reuters, and Prof. Garrett Epps of The Atlantic, among others. There’s a lot of congeniality.
As for the fear of “getting it wrong,” that’s always there. But reading the briefs and becoming appraised of the issues prior to a hearing really helps – the more you know the case prior to oral arguments or a decision, the easier it is to break down the issues for a lay audience. What helps, too, is that covering the court as a reporter is a little different from covering the court as a columnist, which I did in my prior adventures here at Fault Lines or with Slate or New York Magazine. That kind of writing was more focused on analysis and sounding smart and having a strong opinion about what the court is doing. Being a reporter constrains you a bit to the facts and the law of the case – the who, what, when, where, and how of things – with far less room for editorializing.
Knowing the difference and when to employ which voice is key, and I’m deeply grateful that my editors give me the freedom to do both depending on the situation.

Q. Now that you’re an old hand in the Supreme Court, what do you think about your early writing on the law? It wasn’t always smooth sailing, but was that just part of the process or do you ever cringe at what you wrote? Have you found a home in the Supreme Court gallery, or is there someplace else you would rather be? Are you good with a future in legal journalism? Is there any bone in your head telling you, “but it would still be great to take a case to trial”? Do you wish you had the experience in the trenches when you sit down to write about law?

A. Oh yes, I still cringe at some of those early missteps. They’re generally awful. But you learn a ton from them. I wrote a piece early on during my time here at HuffPost for which I caught a lot of flak — it wasn’t wrong factually, it’s just that my analysis could’ve used an editor who knows a lot about the law to keep me in check and help me beef up some of my conclusions. As fate would have it, it took an editor who, I later learned, had previously worked at Legal Times to update it to reflect what I truly meant, with a big note at the bottom to note that the piece had been updated. She’s a wonderful editor, and my go-to person whenever I’m about to drop a piece that I feel needs an extra set of legal eyes.
Right now I just want to do this for as long as I can and get really good at it. Lucky me, I happened to come on the beat the year Justice Scalia died, there’s an ongoing confirmation fight, a presidential election that could truly remake the court for a generation, and at least six blockbuster cases that could change the face of constitutional law for a long time. I always hear talk of the Supreme Court facing a “term of the century,” but it never truly is. This one may actually turn out to live up to those expectations, and to think that I get to cover it all is really humbling and exciting.

Cross: Ellen Yaroshefsky, In The Trenches of Criminal Law Ethics

Apr. 12, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Cardozo Law School clinical professor Ellen Yaroshefsky, just appointed as the Howard Lichtenstein Distinguished Professor of Legal Ethics and Executive Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School.

Q. You are the “go-to” expert on criminal law ethics, and appeared as a witness on behalf of Orleans Parish Public Defender Derwyn Bunton at a hearing before Judge Arthur Hunter. Did you figure this is where you would end up when you decided to go to Rutgers Law School back in the Stone Age? What made you want to be a lawyer? Was it crim law going in, or did you have something else in mind? Was it crim law coming out, or was that an accident?

A. It is ironic to me that I ended up as a legal ethicist. Legal ethics did not exist as a field when I was in law school and even if it did, I am certain that I would not have been interested. We were not required to take the proverbial ethics course and I can hardly even remember reading the required ethics code before becoming a lawyer. I ended up here through a circuitous route that began in the 1960s pursuing what we now call “social justice.”
It was the early 1970s. I was working in affirmative action and decided to either go to law school or graduate school in education and urban planning. The Rutgers Dean convinced me to choose law. I then met several of the students who were National Lawyers Guild activists. The school was dubbed the “People’s Electric Law School” because of its activist agenda and was the only law school in the country that had clinical education (besides Northeastern Coops).
I was hooked and then mentored by Arthur Kinoy, a founder of the Constitutional Litigation Clinic and New York’s Center for Constitutional Rights. We had a remarkable faculty who were excellent visionary lawyers and teachers. Kinoy was a historian-lawyer and he, Morton Stavis and William Kunstler had been the architects of civil rights litigation in the South in the early 1960s. Arthur Kinoy instilled in us the importance of being “people’s lawyers.” It was inspirational and quite a unique time.

Q. After law school, you went as far from New Jersey as you could get, Tacoma, Washington, to work for the Puyallup Indian Tribe. While going west is completely understandable, how did you end up representing the Tribe? What sort of law were you handling? Were you prepared, coming out of Rutgers, to represent the Puyallups? Was there something about that position that made you think, “criminal law sounds like fun”?

A. I was not sure what kind of law I wanted to practice. I still had an abiding interest in education law as well as constitutional litigation. I spent the summer of 1968 in San Francisco and knew that I wanted to move West. So when the National Lawyers Guild sponsored the first summer projects, I chose the Native American Summer Project.
It was 1973, the year of Wounded Knee, and the shooting of Native Americans on the rivers in Washington in a longstanding dispute about fishing rights. I chose the project in the Northwest. We had no idea how to do much other than research to help regain land, help lawyers on cases where Natives were arrested, and learn a great deal about particulars of injustice against Native Americans.
It was an eye popping summer, replete with stories about South Dakota Wounded Knee arrests. Many NLG lawyers, including the legendary William Kunstler, were involved in Wounded Knee. I returned to the Northwest the following year to co-lead the project and then decided to move there after law school to open the first Puyallup Tribe law office with my project co-leader. We had no idea what we were doing, but that did not stop us from our unwarranted exuberant confidence. We worked on fishing rights, economic development and I represented a number of tribal members in criminal cases.

Q. After a year, you started with the Seattle-King County Public Defender. As you know from Orleans, many public defenders offices are drowning in cases. Was it like that in 1976 when you started? What type of work were you doing? What about your first trial? Too confident? Scared to death? What did you take away from it? What was your favorite part of trying a case?

A. My roommate, Kate Pflaummer, who had moved to Seattle from New York, thought I was nuts to be in Tacoma, Washington and encouraged me to be a Seattle public defender. She was one of two women in felony division in the entire city of Seattle at that time. I was inspired by her work. I loved the stories, the David and Goliath aspects, the righteous representation of indigents in the face of terrible odds. Many NLG activists were criminal defense lawyers, working to keep people out of jails and prisons.
She, and many others, thought I had the “trial lawyer” in me and they knew I loved representing people in what most perceived to be a stacked deck system of justice. The State and the government were called the system of “just-us.” Yes, it was the 1970s!
The Seattle Public Defender Office had, and still has, the reputation of being one of the best public defender offices in the country. Caseloads were manageable. Resources were available. We had social workers, investigators and even though we felt overworked, our clients did not suffer.
After 2 years in the office I, and two colleagues, were assigned to work full time on our office’s first death penalty case. For nine months, I devoted all my attention to the case of Carey Webster, a Native American charged with the killing of a taxicab driver. We were lucky to have spared his life. It was an incendiary environment for a young Native American on trial for murder and it was frightening for me to have that responsibility. I did not want it, but my supervisor thought I was up to the task. I don’t recall sleeping much during that time or being able to have normal interaction with other people. Our team was in some ozone. We were in “team defense” before our time. I had to fly to upstate New York to examine the then-existing “expert” on blood spatter. It was hardly a science, as we now know, but we did not know that then. It was my job to debunk the expert conclusions and led us to excess alcohol consumption when our expert called a few weeks before trial to let me know that some of his calculations were incorrect.
At the Seattle PD, I started off representing clients in civil commitment cases because that was the job available. I learned a great deal about mental illness and cross examination of psychiatrists. My first trial was hilarious. My mentally ill client was a guy who set his couch on fire because he repeatedly fell asleep with cigarettes in his hand. I was outraged, of course, that the State would seek to commit him because he was “dangerous to others.” We had a jury trial; he testified. He tore the prosecutor to shreds on cross examination. We won and he then went home to set his chair on fire. He told them all to go to hell as they picked him up, once again, to commit him to an institution.
I rapidly moved from those cases to first degree robbery and homicide cases without much additional training. I was scared to death when my next trial was a defendant charged with robbery with a sawed-off shotgun while high on Dilaudid. Somehow I pulled it off.
The Seattle PD job remains perhaps the most cherished for me and many others. It was the bonding experience of our youth. There were only 12 felony lawyers in our office and only two women criminal defense lawyers in all of Seattle at the time. But the best reason is that we had 4-2-4 options, that is, 3 lawyers shared 2 jobs. We worked as a team where each of us worked 4 months, were off two months and then worked 4 months again. With good teammates, it worked seamlessly. You never actually got a full 2 months off because if you were in trial, you had to complete it and spend at least a week turning over cases to your teammate. But, it helped burnout and we travelled a lot. Two thirds salary at the time was $8000 a year. We lived well. REALLY. Some of my closest friends, who went on to become judges, academics, the U.S. Attorney, and leaders in firms, concur that our days in that office were inspirational. We got to practice at a high level, made a difference in many lives and had a lot of fun.

Q. In 1980, you started a firm practicing criminal defense in Seattle. Was the transition from public defense to private practice easy, hard, what you expected? Did private practice suit you? Were you busy from the start, or did you sit around waiting for the phone to ring? Did you like being your own boss or did it prove to be harder than you anticipated?

A. I wanted to be in private practice where I could choose criminal cases and also do civil rights work. Five of us from around the country had been meeting for some years to form a law collective– everyone was paid the same and we had a social justice mission. We got to do great work.
I worked with the New York Center for Constitutional Rights on women’s self-defense issues and undertook the defense of Sherry Allery, the first major “battered woman self defense” case in Washington State. We lost at trial because, among other issues, the Judge did not believe the battered woman’s expert and would not admit her testimony nor instruct properly on self defense. It was a sweet victory to have the conviction reversed by the Washington State Supreme Court. The case became a seminal one for the country.
We worked on civil rights cases including a case against Philippine government leaders for the assassination of two labor leaders in the cannery industry. It was the best of being a “people’s lawyer.” I look back now and realize the opportunities we had. Elizabeth Loftus, now the country’s leading expert in eyewitness identification, was a witness in my criminal cases in the early 1980s. Her first testimony was an offer of proof because the courts would not permit her testimony.

Q. You left Seattle in 1982 to work with the Center for Constitutional Rights, when (if I can remember that far back) former Attorney General Ramsey Clark was running the joint. What was that transition like? That was more civil rights than criminal defense. Was that where you wanted to go? Any really interesting work on your plate back then?

A. For personal and professional reasons, I had a hankering to come back to New York, particularly to work at the Center for Constitutional Rights. It had been my dream job since law school. Michael Ratner was the legal director and Morty Stavis and William Kunstler were its active founders. I was so fortunate to be hired and got to work not only on significant criminal cases but I learned the art of litigating important international human rights cases in what colleague Jules Lobel calls “Success without Victory.”
Ratner and the late Rhonda Copelon led the way in litigation challenging U.S. supported and sponsored violations of international human rights by death squads in El Salvador and Nicaragua. It was the Reagan era. We successfully used litigation to organize and publicize US actions. Even though the lawsuits were dismissed, the litigation helped spark political action to stop unlawful intervention.
As an outgrowth of Central America work at CCR and in the National Lawyers Guild, I became one of the lawyers for the year long Sanctuary trial in Arizona. The Government charged priests, nuns, and other religious and lay workers with transporting, harboring and otherwise assisting Salvadoran and Guatemalan refugees in the United States. Twelve defendants were charged with some 81 counts of criminal activity. We won about 70 counts but were devastated to lose the others.
I still consider that trial one of the highlights of my career. The clients were remarkable. A priest from Mexico travelled daily to Arizona to stand trial even though the government would have preferred that he stay home. People in town wore buttons that said “If They are Guilty, So Am I.” The judge had it out for us and our clients. We were not allowed to use the word “refugees.” The day before the trial started, the Judge took away our defense of intent. It was all a travesty that taught much of the religious community a lot about the operation of law in political cases.

Q. You turned back to private criminal defense in 1988, then went to Cardozo Law School as a clinical prawf in 1994. What made you decide to teach? Was that a scholar inside you yearning to get out? Did you tire of working in the trenches, or did your interests change? When you started, did it turn out to be what you thought it did? Was working with students your “thing”? What about the ancillary aspects of the legal academy? For a trial lawyer, the bureaucracy can be a bit hard to take. Any problem going from solo trench lawyer to professor?

A. I loved CCR but I needed to earn a living and our salaries there were extremely low. In 1988, Barry Scheck and Larry Vogelman, then directors of the Criminal Law Clinic at Cardozo Law School, offered me an adjunct position in the Clinic and a partnership in law practice. We set up an office in Soho where I worked 2/3 time and then worked the rest of the time at the Clinic. We directed Cardozo’s Intensive Trial Advocacy Program.
It was interesting, engaging and fun. I liked the students, my colleagues and the opportunities that law school teaching offered. I never intended to teach full time but serendipity and unpredictability seems to define my career. Someone once told me “Make your own steps” and I suppose that I followed that advice.
I thoroughly enjoyed clinic teaching. In addition to misdemeanor supervision, I had students work with me on cases including the first sexual harassment case at the United Nations. We represented Catherine Claxton, a brave woman who came forward to complain. Alan Dershowitz represented the high level UN harasser. The students who worked on that case and sat through the 4 week trial — all done in “secret” at the UN — have subsequently talked about the impact of that experience.
We handled a wide range of criminal cases through the Clinic. In my private practice, I worked with artists and represented Karen Finley, an avant garde artist who received federal funding and who was attacked by right wingers in the Congress who sought to defund the NEA due to support of her work. This was known as the “NEA wars” of the late 1980s. The right wing wanted to stop funding the artists whose work they abhorred and we undertook that battle.

Q. Your focus at Cardozo was on legal ethics, and you became the Executive Director of the Jacob Burns Ethics Center. How did you come to focus your interest on ethics? You’ve done remarkable work in the area of criminal law ethics, from Brady disclosure to plea bargaining to indigent defense. How did you end up there? Was your interest in ethics there when you were still in the trenches trying cases, or did it come later? Do you have a philosophy that guides your perspective in ethics? Is there one side, prosecution or defense, that’s more or less ethical? Are there more pitfalls for one side?

A. Personal reasons had much to do with why I ended up a fulltime academic. I became a parent in 1990 and my husband died unexpectedly in 1994. I was not sure I would return to work for many months (and did not), and I certainly could not imagine the stressors of trial work on a long term basis.
In 1997, I tried my last major case before Judge Reena Raggi. As you may know, she runs an efficient courtroom and the trial schedule was punishing. I got 3 hours sleep for days, hardly saw my son, and despite a nice victory, decided that such a life was not sustainable. Luckily, Cardozo benefactor Jacob Burns gave Cardozo an endowment so that we would teach ethics with the simulation method that we used to teach our Intensive Trial Advocacy Program. Barry Scheck and I set up the Jacob Burns Center for Ethics in the Practice of Law.
I knew nothing about legal ethics. Barry Scheck and I co-taught the course for a semester and then he went off to Los Angeles for the famed OJ Simpson case. I slowly, or maybe quickly, learned the field. Barry returned and we held some Ethics Center programs and developed video simulations to teach ethics. It was fun, it was interesting.
Barry could not undertake the remarkable work of the Innocence Project while simultaneously directing the Ethics Center, so it was mine as of the mid 1990s. And so it was that I changed course a bit, while maintaining an abiding interest in criminal justice. Barry and I still collaborate and I often provide advice to the Innocence Project and work closely with them on prosecutorial and defense attorney ethics.
I focused the Ethics Center on Access to Justice issues. We held a yearly talk. Michael Tigar delivered, “How Market Forces Distort the Search for Justice.” Along with my Fordham colleague, Bruce Green, we concentrated on Brady issues and held many conferences including one on disclosure issues. We filed amicus briefs. I became engaged in the various bar associations and national organizations that focus on legal ethics. Engaging in the Criminal Justice Section of the ABA was significant and we were able to pass resolutions on numerous issues including Brady rules, plea waivers, and prosecutorial misconduct versus error.
I like legal ethics work. It raises interesting and difficult questions. How should the profession operate? What are necessary and appropriate rules? How is criminal justice ethics different from that of civil justice? Negotiation vs. Litigation. What can we do to move the ball forward? Maybe your eyes roll over and say REALLY? I guess this does make me an academic.
I dislike the distinction between lawyers and academics. I aspire to be both and would hope that more academics engage in the world of lawyering. In particular, I would expect that academics write to be useful to the practice of law. I think we need to help overworked lawyers step back, examine the practice, and figure out ways to improve the justice system. Ethics rules should play more of a role in the way judges, prosecutors and defenders view their respective roles.
My early interest could be traced to a program at NYU in the late 1980s when Steve Gillers invited me to an ethics program on criminal defense and victims’ rights. My perspective was not particularly well received by the prosecutor and former judge on the panel. I did not know why! I actually wrote an article debunking the popular view of the role of victims in the criminal justice system. My first scholarly piece. It still holds up.
I did not know that I would like scholarly writing. I do, to some extent, although the hundreds of footnotes to make a basic point can be frustrating, particularly in this era of short attention span. Who reads these articles? If they are useful, hopefully lawyers and judges can use the hundreds of footnotes and ideas in briefs, motions and opinions. Maybe that is just an academic pipe dream.

Q. Your work in criminal law ethics has made you one of the foremost legal ethicists in the area, which explains how you ended up as Bunton’s expert witness in Orleans. There seems to be little question that, as you opined, that risked becoming “nothing more than a plea mill.” So is this an ethics question or a financial question? At what point does a public defender have to say “no,” he will no longer be complicit in less than adequate representation? Is Derwyn Bunton right to refuse cases? Should every overworked, underfunded, PD just say no?

A. Louisiana–Lawyers at the NOLA PD called and asked if I would testify and I did. The situation there, and throughout the State is shocking. It is simply not possible for lawyers to perform the basic tasks of representation: interviewing and counseling their clients, conducting basic investigation and making appropriate motions. It is a basic ethical and constitutional precept that lawyers must provide competent counsel. They are unable to do that.
I testified that the situation is little more than a plea mill. Lawyers are not performing, and cannot perform the basic tasks. It is not ethical to represent clients in such fashion. Many systems around the country are terribly underfunded and place lawyers in compromised positions. Lawyers constantly have to decide whether they should go to a supervisor, say that they cannot handle any more cases, and the supervisor then has to decide upon action. Perhaps lawyers do not do so because defenders have become so accustomed to triage — to picking and choosing which cases are worthy of defense rather than a quick plea — that they are loath to even recognize where they should say “NO.”
The triage issue is endemic to the public defense system nationally and the subject of constant and ongoing discussion. But Louisiana has gotten to the point of no return. The system of funding is unconscionable. You cannot fund a criminal justice system primarily through traffic tickets or other tickets paid by the public. There must be state and other government funding.
Derywn Bunton, by all accounts, is a thoughtful and courageous leader in the New Orleans defense system. He carefully considered all options and took seriously his ethical and constitutional obligations. He exhausted all options. I believe that, as difficult as it is, he had an ethical obligation to refuse to accept further cases. Several ABA Opinions set forth his course of action.

Q. You ended up taking a group of students to Orleans Parish over a school break to try to help, fill in some gaps and teach them what life in the real trenches was like. That raises some questions: Does it help or hurt to relieve some of the pressure building toward an indigent defense disaster? Does the system need to crash and burn before government takes its duty under Gideon seriously? And are law students ready to provide meaningful help to the unrepresented indigent? Should the poor be used for practice? Don’t they deserve competent representation by admitted lawyers? What made this trek a good idea?

A. I recently organized a trip for Hofstra students to work with the MacArthur project in New Orleans. Cardozo students will soon engage in such work. The Hofstra students worked in Lafayette, Louisiana. They spent a week learning the system, documenting conditions and working with 12 defendants to prepare habeas corpus cases in order to secure their release because they have been held without charge and without legal representation.
Needless to say, their work is somewhat of a drop in the proverbial bucket. There are 70 young men held in Lafayette and even if they could write motions for 12 people and secure their release, this represents a small portion of Louisiana defendants.
So why such a project? Many reasons. First, the students were adequately supervised and actually will help the 12 young men. The work they did was competent and meaningful for those people in jail. Second, the students’ exposure to the remarkable unfairness of the system should reverberate as they write and talk about their experiences. It was shocking for all of them to learn that in Louisiana people can be held without charge for 45 days on a misdemeanor and 60 days on a felony. Without charge!
This issue alone has not received sufficient attention. Hopefully, exposure and increased publicity that results from this and similar projects will snowball and have an effect. Change does not come overnight and it takes many efforts to achieve public awareness that leads to changes. No doubt, the Louisiana public defense system has crashed, but it will take greater public pressure to make a measure of Gideon a reality. Projects such as student projects can help move that forward.

Q. It’s just been announced that you’ve been named the Howard Lichtenstein Distinguished Professor of Legal Ethics and Director of the Monroe H. Freedman Institute for the Study of Legal Ethics at Hofstra Law School. Aside from that being a mouthful, what is the plan for Monrovia? Do you plan to continue your focus on ethics in criminal law? Will you continue your work as a legal ethics expert as well as scholar? And what will you do next?

A. I am honored and humbled to have been selected as the Director of the Monroe Freedman Institute for Legal Ethics. Monroe was a friend, mentor and a legal ethics hero. And, we share a birthday and he was the first to contact me at 5 a.m. every year to wish me one first!
He was an advisor to untold numbers of criminal defense lawyers around the country throughout his career. He gave of himself to anyone involved in access to justice. His groundbreaking law review article, The Three Hardest Questions, incurred the wrath of Nixon appointee Chief Justice Warren Burger, who sought Freedman’s disbarment in retaliation for his position that, when faced with the dilemma of what to do when the lawyer knows that the client intends to commit perjury, he or she should present that client’s testimony as any other witness.
I hope to enhance Monroe’ s legacy. I am excited that there are sufficient funds to sponsor programs, conference, fellowships and other activities to undertake significant and cutting edge issues in the profession. I intend to work across a broad range of areas but to continue to focus on criminal justice ethics. I am thrilled to begin with a program on September 13 when Dean Strang, the lawyer for Steven Avery in the noted series, Making a Murderer, will inaugurate the Institute with a talk about criminal justice ethics.
I will continue the focus on prosecutorial and defense attorney accountability, but I also want to examine the role of judges in the criminal justice system. There is so much to do. It is an exciting time, as difficult as it may be. I will continue to consult with scores of lawyers and hopefully have time to write articles and essays that are useful as we continue to try to push that rock uphill.

Cross: Alex Bunin, Getting Public Defense Right

Apr. 6, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Alex Bunin, founder and Chief Public Defender of Harris County, Texas, and former Federal Defender for the Northern District of New York.

Q. You went to college at Bowdoin, as northeast liberal a school as it gets, and majored in philosophy. What was the plan going in, since there aren’t a lot of really good philosopher jobs around these days? Was this intended as the basic liberal arts education, to be rounded out by a more goal-oriented education later, or was this just a matter of getting through college and figuring it out later? Did your philosophy education guide you going forward? Did you dress up as Nietzsche for Halloween? And how did you like school in Maine?

A. I went to Bowdoin College for two reasons. First, I grew up spending every summer in Maine and had good memories of living near the ocean and forest. Second, the rest of my childhood was spent in New York City public schools, and so Bowdoin, with its largely affluent prep school student body was a real contrast.
So, I guess there was not really a plan, but my parents believed in the value of a liberal arts education. I majored in philosophy because I wanted to discuss the big questions of life, and it required the least number of hours to complete. I never dressed up as any anti-Semitic historic figure, including Wagner, whose music I otherwise enjoy. I did like attending college in Maine, except in February when the campus became a skating rink, even inside the dorms.

Q. After Bowdoin, you went to law school at South Texas College of Law, about as far from Bowdoin as one could get in almost every conceivable respect. What were you thinking? What made you decide to put Kierkegaard behind you and Clarence Darrow in front? Did you have a burning desire to be a lawyer, or was this just the next step for a guy who didn’t like the sight of blood? Did you go in thinking criminal law was for you, or did it come to you in law school?

A. There is a gap of almost two years between college and law school. After Bowdoin, I took a job as an assistant buyer for Lord & Taylor in Manhattan, living at home with my family. I realized I was very poor at buying or selling anything, but I enjoyed the healthy employee discount. When my college roommate ended up in Houston, I moved down to experience the bust in oil patch in the early 1980’s.
After a couple of jobs in the food and beverage industry, I applied to law schools. I got into a few, including the inaugural class at CUNY in Queens, but settled on South Texas as somewhere I could work and attend classes. I had some idea that I wanted to be a lawyer, but I had not previously known any. I have nothing against blood, but I could not stomach organic chemistry. I think I settled on criminal law after my first year when I realized what the alternatives were.

Q. During law school, you clerked for Richard “Racehorse” Haynes, one of the best, and always colorful, criminal defense lawyers in the country. His explanation of pleading in the alternative is a classic:

Say you sue me because you say my dog bit you. Well, now this is my defense:
My dog doesn’t bite.
And second, in the alternative, my dog was tied up that night.
And third, I don’t believe you really got bit.
And fourth, I don’t have a dog.

What was he like to clerk for? Any pearls of wisdom you picked up from Racehorse? Did working for a legendary criminal defense lawyer make you want to do defense too, or want to do trusts and estates? What kinds of demands did Racehorse make of you? Was this one of those experiences that follow you through your career? Did he make you walk the dog, assuming of course, he had one?

A. I was hired as a clerk by Haynes’s firm Haynes & Fullenweider, which had half a dozen or so lawyers, when I was in my final year of law school. Besides Haynes, there were several excellent criminal defense lawyers there that I worked for, but I had occasional contact with him.
Once, I was sent down to the courthouse to meet him with a file and introduce him to his client. The case was tried that morning and the client was acquitted. I remember working on an appeal from a case he had tried in federal court. His cross examination of a government informant went on for about a hundred pages, much of it about the dark color of the witness’s pants. Finally, the exasperated judge tried to intervene: “Mr. Haynes, what difference does it make what color pants he had?” The response: “Judge, those were burglar’s pants.”
He could cross examine a witness so long they would ultimately forget their own name. Of course, all the best stories about Haynes are in books. He represented the richest man ever tried for capital murder in Texas and got an acquittal twice. Once for the shooting of the client’s step-daughter in front of an eyewitness and the second for planning the assassination of the trial judge in his divorce case, recorded on audiotape. That is not even the most famous book. That one, “Blood and Money,” was made into a television movie with Sam Elliott and Farrah Fawcett. Racehorse had a birthday this week. He is 89. I don’t remember whether he ever owned a dog, or if he did, whether it bit people, or was insane…

Q. After law school, you started a solo practice in Houston. How did that come about? Were you dedicated to criminal defense at the time? Was this a product of necessity, or did you decide that you weren’t interested in working for someone else? Did you ever consider getting a job as a prosecutor?

A. I interviewed at the Harris County District Attorney’s Office. I figured that if they were coming down to the law school anyway, it did not hurt to ask. It paid a salary and had benefits, something no criminal defense lawyers were offering me. The two women that interviewed me were career prosecutors and later judges. All was going well until we got to the question about the death penalty. I had to truthfully admit that I opposed it and could never ask for it. A week later I got a letter rejecting me. I save it to this day.
Solo practice was by necessity, because I wanted to practice criminal law and nobody would hire me. I took court appointments and was mostly supported by my wife, Nancy, a lawyer who was employed as a law librarian. Court appointments in Harris County were still a pretty dirty business then, generally requiring lawyers to kick back money to elected judges as campaign contributions. One oft-appointed lawyer famously slept through parts of his client’s capital murder trial.
Appointed work was generally a volume business where lawyers, paid by the setting, spent most of their mornings wandering between courtrooms resetting cases. Until the passage of the Texas Fair Defense Act of 2001, this was fairly standard business. I avoided this treadmill early on when I was mentored by Edward Mallett, an excellent criminal defense attorney, who later became President of TCDLA and then NACDL.

Q. Everybody has a story about their first trial, whether they went in scared to death or overconfident, or whether they did something incredibly brilliant or stupid. What about your first trial? How did it go? Were you the lawyer you thought you were? Were you better or worse? Was there something, looking back at it now, that makes you cringe? What part did it for you, voir dire, opening, cross or summation?

A. I have never been overconfident about anything, particularly the practice of law. I am sure I was more nervous before my first trial than I am today, but not by much. The more you know, the more you realize that you don’t know. I am embarrassed to say that I cannot remember which one was my very first trial, but I think it was a DWI. I did not win and I was unfamiliar with all the science and techniques that make DWI/DUI practice so specialized today.
Basically, it was what I expected — difficult and terrifying. Cross is the hardest for a beginner because it requires planning and technique that are not intuitive. I know I tried several cases before I attended the National Criminal Defense College in Macon, GA, and learned I was doing much of it wrong. Any new lawyer needs some intensive advocacy training like NCDC, Gideon’s Promise or NITA. You just do not get that in law school, even with advocacy courses. I also did many appeals. Back then, you could still win appeals. I probably got reversals in almost half my cases. The current reversal rate is about three percent.

Q. In 1993, you became an assistant federal defender in Beaumont, in the Eastern District of Texas. What made you leave private practice for public defense? How tough was it to make the transition from being in charge of your practice to taking on whatever cases you were given? How tough was the Eastern District for criminal defense back then? Are you glad you chose that route? Would you make the same choice again?

A. I had been practicing with Mallett for several years when Patrick Black established the Federal Public Defender’s Office for the Eastern District of Texas. He is based in Tyler (still is the FPD), and needed someone in Beaumont. I wanted to be a public defender and I wanted to be in federal court. It was a great job. For a year, I was the entire Beaumont office. I represented about 150 defendants and tried 12 cases to juries. It was a busy place.
The “War on Drugs” was in full swing and almost anything could get to federal court in EDTX. I tried a one-rock crack case against the actual United States Attorney for the Eastern District of Texas. I liked practicing there. It was like a small town. Everyone knew everyone and you had to keep your word. One AUSA that I liked would simply hand me his entire blue-bound ATF file as discovery and tell me to copy it and return it when I could. I am glad I went to Beaumont and would do it again.
For the first six months, Nancy, I and our two young sons continued to live in Houston. I drove 90 miles to Beaumont each way. Interstate 10 is completely straight and I could go 90 mph because I knew all the troopers and deputies. Eventually, we moved to Beaumont and rented a house. We stayed there until I was selected to open a new federal public defender office in the Southern District of Alabama. I started there in 1995 in Mobile where I had to rent office space, buy furniture and equipment and hire lawyers and staff. It seemed like the right thing to do at the time and it was. We enjoyed Mobile. It is like a smaller, quieter New Orleans.

Q. In 1999, you were appointed the Big Guy, Federal Defender for the Northern District of New York and Vermont, charged with establishing the office. Not only were you a long way from Texas, but creating a federal defenders office where none existed must have been a daunting task? How did you pull it off? Not only did you find the lawyers, establish the office, but you managed to earn an extraordinary reputation for imaginative approaches in public defense. Was there resistance to creating the office? Did the local criminal defense lawyers, panel or private, welcome you? Were the judges happy to have a public defenders office in their district? Were you still able to try cases, or was that now a thing of the past given your administrative duties?

A. It was daunting, but not for reasons I anticipated. After Mobile, I knew how to build a public defender office. It was the geography that made this job difficult. First, I did not realize how much trouble I was creating for my family. Nancy and my sons had never lived up North. I just based it upon my transition to the South, which was no big deal for me.
Nancy was a legal aid lawyer and the executive director of the Mobile Fair Housing Office. She left that for me to go to a place where she did not have a law license. She worked for the New York legislature and legal aid. The boys had to go to new schools. It was not a simple transition. Additionally, I had two separate districts, with several working courthouses in each. This meant branch offices in two districts that had completely different cultures. They were two cultures that did not especially respect one another.
I remember a Sheriff’s deputy in Rutland that called me a “flat lander,” even though the state where I lived had 46 peaks higher than anything in Vermont. The New Yorkers were no less condescending about Vermont. Regardless of the differences, managing branch offices that are hours apart is an act of faith. All you can do is hire good people and hope for the best.
There was little resistance from the local bars. Few lawyers in either district did many federal criminal appointments. We were like the cavalry coming in to help. The judges wanted us too. Under the Criminal Justice Act, they must request an office be created and add it to their plan. Nobody can force it on them. To this day, the Southern District of Georgia still refuses to have a public defender. I tried cases in both districts. In Vermont, I tried a federal capital murder. I also did many cold record appeals. My favorite appeal was a “made” wise guy from the Boston mob whose case was like a cross between The Departed and The Sopranos. In 2006, Vermont and Northern New York split and each now have their own separate Federal Public Defender.

Q. You’ve served on tons of committees, been in leadership positions with bar associations, and you’ve been given a slew of awards for your work and your contributions to public defense, including the Thurgood Marshall Award for Capital Litigation. Do you enjoy working with committees? Are you a bar association kind of guy, or is that just part of the job of creating a federal defenders office and making it work? A lot of trial lawyers bristle at the idea of committee work, yet you’ve managed to excel at both. How do you do it?

A. I do not especially like working on committees, but they can accomplish big projects. Typically, if there is a specific skill I can bring to a committee, then I can successfully contribute. I have always been good at organizing continuing legal education. I am less good at sitting around brainstorming with a roomful of lawyers that like to hear their own voices.
In my current job, I spend much more time in meetings with judges, prosecutors and other criminal justice officials. Sometimes, it is important just to be in the room with them. Harris County and Texas both have excellent criminal defense lawyer associations. Many of my assistant public defenders serve on their boards and committees. I was on the NACDL board for one term. I enjoyed it, but I felt there were other things I needed to do.

Q. You also taught at Albany Law School, including during the black days of the 2007 crash. Have law students changed? Do you see them carrying the fight forward in the trenches? Are they tough enough to handle the punches they’ll take as criminal defense lawyers, and show up the next day to get punched some more? For those of us concerned that maybe, just maybe, they have gotten a little too entitled and narcissistic, do we have good cause for concern?

A. I am not one of those middle-aged guys who believes that kids today (anyone under 40) are any less motivated or smart than any other generation. In my opinion, most law students of any era have a higher opinion of their potential than is reasonably warranted. I am also not much into discipline. I leave that to cops and prosecutors. Some complain that I am too nice, but I feel most people get beaten up enough in the world without my adding to their misery.
I try to teach and lead by example and not by carrots and sticks. That goes for law students and employees. I have hired several lawyers fresh from law school and they have all been motivated and hardworking. I think the bigger problem is that there are few opportunities for new lawyers to do public defense in an environment where they get proper mentoring and support.
In 2012, I got a DOJ grant to send new private lawyers to Gideon’s Promise, established by MacArthur “Genius” Fellow Jon Rapping. It is really the only place that trains lawyers on all aspects of doing public defense. All 20 of the lawyers that we trained are still doing public defense in a manner that makes me proud.

Q. In 2010, you returned to Houston to create the Harris County Public Defender’s Office out of nothing. How was it to come back to good food? What was the reaction of Houston lawyers to the establishment of the first public defender’s office? Were the judges happy to have you, or were PDs in the way? What was the biggest obstacle you had to overcome to make this office happen? Is this it for Alex Bunin, or should we be ironing up a nice black robe with your monogram on it?

A. Nancy already returned to Texas to take a job with the public defender service that represents state prisoners. One son was in college and one was graduating from high school. It was at that point where I learned about the Harris County position at a good time. Still, I would not have accepted the job if I did not believe the funding and support were there to make it work.
Harris County received a grant over four years from what is now called the Texas Indigent Defense Commission. The grant stipulated that public defenders will get salaries equivalent to the district attorney’s office and that caseloads will not exceed standards approved by the ABA. Although there was some initial reluctance from judges and the criminal defense bar, I think most of that has been overcome by the realization that we are doing good work for our clients, assisting the bar generally, and that our footprint is actually pretty small. We take less than ten percent of all appointed cases. The rest go to private attorneys who must meet minimum qualifications set by the courts.
The biggest obstacle was the imaginary fear that all criminal defense would be turned over to a giant incompetent socialist machine. I guess we are a socialist machine, but small and competent. A report on our office by Council of State Governments Justice Center found that compared to private assigned counsel and retained lawyers, that we tried more cases, got more acquittals, got more dismissals, and got fewer custody sentences. We have received awards from the State Bar of Texas and the Houston Lawyers Association.
It was good to come back to Houston. The Italian food in Upstate New York is excellent, but the rest of the choices …meh. Houston is one of the best food cities in the United States, and I know food. Although I plan to stay here, it probably will not be as a judge. I like the legal analysis, but the primary qualification is that you must be willing to judge others. That would not be my favorite part. I think John Gleeson and Nancy Gertner are good examples of excellent federal district judges, but they both retired young, so that must say something. But then, if President Trump/Cruz/Clinton/Sanders needs me to fill the SCOTUS spot, I will consider the offer.

Cross: Mark Bennett, Have Speech, Will Travel

Mar. 30, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Houston criminal defense and First Amendment lawyer, Mark Bennett, whose blog, Defending People, is one of the foremost criminal law blogs around.

Q. While everyone knows you now as the Texas Tornado, you had an “international” upbringing as a result of your father’s work for the government. What influence did that have on your perspective? Did you find your education to be better, worse, different, than that taught in the United States? Did growing up in other cultures make you see America differently than others? And what about your father, who is one of the handful of truly great men to get married in a Dunkin’ Donuts? Did he, his work, influence your world view?

A. My education abroad (in Frankfurt, Bangkok, and New Delhi) was much better than I would have had, had I remained in the US. Aside from the superiority of the international schools to American public schools, growing up overseas exposed me to other cultures and to the fundamental sameness of people. Recognizing that sameness saves me a lot of work guessing what an adverse witness, or a judge or a prosecutor is thinking. Because friends would leave every year and new ones would arrive, my expat childhood gave me the ability to find rapport quickly with others.
While 9/11 “changed everything” for most Americans, I had long been accustomed to living with the threat of terrorism, and recognizing the difference between rational mitigation of that risk, and panic. America has been in a panic since 9/11; we’ve given the government permission to take away vast swaths of rights, all for a risk that is less than that of riding in a car or going to the doctor or taking in a show.
My Mom’s brother, Randy, was an Air Force pilot. Whenever Dad and Randy parted ways, one of them would say, “well, I’m off to fight communism,” and the other would reply, “it’s a tough job, but somebody’s got to do it.” So I have Dad to thank for my sense of duty: find a tough job that someone has to do, and do it. I could have gone to work for the CIA (I worked there a summer during undergrad) but Dad encouraged me not to subject myself to government bureaucratic chickenshit, but rather to work for myself.

Q. You did your undergrad at Rice, where you majored in religious studies, a rather curious choice. What the hell were you thinking? Was there a plan of action at the time? You then went to University of Houston for law school. Why law? Did you go in with the purpose of coming out to practice criminal law? Did you ever consider becoming a prosecutor, or was it criminal defense all the way? Is there something wrong with prosecuting?

A. I started at Rice as a Political Science major because that seemed like a natural major for my background and law-school aspirations. After seven semesters of that I looked at my GPA and realized that poli sci bored the crap out of me. The Religious Studies classes I had taken had fascinated me, so I had done well in them. I switched majors, took an extra semester to graduate, and finished with a 3.5 in my major. My overall GPA was still embarrassing, but I do really well on standardized tests, so I got into a good enough law school.
I’ve always been a helper and defender of people, looking for reasons for their behavior rather than condemning them. I went to law school planning to be a criminal-defense lawyer, but my 1L crimlaw prof made criminal law dry and boring. So I decided to be a civil lawyer and cash in. It took three summer clerkships at litigation firms to show me the error of my ways—nobody at those firms seemed to be having any fun.
Prosecuting is against my nature, but I cynically applied to the DA’s Office for the experience. My mentor, Jim Skelton, told me I could “get six months’ experience, six times over” at the DA’s Office. Fortunately the interview went about like you would expect, and I didn’t get an offer.
There is nothing wrong with prosecuting if you are the sort of human being who enjoys putting people in cages. I have nothing but compassion for you, and I hope for your sake that the universe is not just.

Q. When you were admitted to practice in 1995, you immediately hung out your own shingle. How did that work out for you? Was it what you expected? What about your first trial? Was it a home run or strike out? Were you a star right out of the box, or did you have to pay some dues along the way?

I had certain advantages when I started out. Jennifer, my then-girlfriend (we have been together since 1992, and we’ll have been married 19 years next week), had a salaried job, so we weren’t in danger of eviction. One of my law school adjunct professors was feeding me contract research-and-writing work. Another was appointing me to criminal appeals. And most importantly, I had no expectations. My first trial was a qualified loss—it was a federal bank robbery trial, and my client was convicted, but he appreciated the fight I put up for him, and he wound up getting less time than he probably would have had he pled guilty.
I have seen very few naturally talented trial lawyers. Most, including me, have to work hard and study to be any good. I am a fairly smart guy, though, and most things that the naturals do intuitively I can, with some studying, reverse-engineer, duplicate, and sometimes even improve. This gives me the advantage of being able to pass on my skills to other lawyers—you can’t teach people to be naturals, but you can analyze and formalize what the naturals do, and teach the formalized methods. I’m inspired by Terry MacCarthy, who formalized cross-examination, with his “Look Good” cross.

Q. Among the aspects of trial that you’ve taken under wing is voir dire, where you came up with the 16 Rules for Jury Selection. What made you focus on voir dire? You have great faith in the ability to select an impartial jury, whereas many (myself included) tend to consider it more voodoo than science. Why? What makes you think that with the right approach, lawyers can look inside the heads of potential jurors and figure out what’s going on in there? Is this art, science, a mixture or just wishful thinking?

A. In cases where the lawyers get to conduct their own jury selection, cases are won and lost in that part of the trial. If, as I contend, jurors have made up their minds by the end of opening statements, so that the evidence is unlikely to change their minds, voir dire is the most important part of the trial. Juror research supports my theory, so I’ll call that part “science.”
It’s not about looking inside the heads of jurors, and an “impartial” jury is the next-to-last thing I want. What I want is jurors coming out of jury selection having thought of a possible theory of the case, which will match my story in opening statements. Orchestrating a discussion that allows the jurors to think of my defense is the part I’d call “art.” I am not an artist, but my 16 Rules are a good example of my learning how to talk to jurors, and then formalizing my method. A lawyer following my 16 Rules is less likely to get in her own way and block the discussion that will result in the jurors thinking of her defense. If you follow my 16 Rules and the jury panel doesn’t suggest your defense as a possible defense, it’s not a very good defense.

Q. You took a trip to a ranch in Dubois, Wyoming, where you attended Gerry Spence’s Trial Lawyer College. What made you decide to spend five weeks of your life there? Was it worth it? What did it do for you, for your trial skills? Some have suggested that there’s something cult-like about TLC. Did you find it that way? When you were done, what did you take away that you didn’t have before?

A. I had had some exposure to the psychodramatic method as a tool for trial lawyers before going to TLC in 1999, but five weeks at TLC taught me a great deal more about the method and unquestionably made me a better lawyer. TLC was a great experience, and I recommend it to any trial lawyer.
That said, there are those who see the TLC way as The Way to try cases. There are cultlike aspects to their devotion. I recommend that lawyers go to TLC thinking of it as a gateway, rather than The Way. TLC should open their minds to the application of other “technologies” than psychodrama to trial lawyering: for example, improv, which I’ve been doing for eight years, and which is not only indispensable to my advocacy but also makes me a better psychodramatist.
Lawyers do not have a monopoly on the study of persuasion, and most of us are too tied up in day-to-day client concerns to make a concerted study of persuasion techniques. I am forming a “skunkworks” group of lawyers who are motivated to investigate the application of other technologies to trial lawyering.

Q. In 2012, you ran as the Libertarian candidate for the Texas Court of Criminal Appeals, losing to Barbara Hervey. What made you decide to run? Did you expect to win or was there a principle at stake? How did you do? Did you get anything out of it? Was it worth the effort?

A. I ran because the Libertarian Party needed someone to run, and it sounded like fun. I didn’t expect to win as a Libertarian, but there is no good reason for judges to be elected in partisan elections. It gave me an opportunity to think and talk about how I would improve the criminal justice system in Texas. My main platform planks were (and are—I’m running again this time): the Court of Criminal Appeals should hold lawyers on both sides to a higher standard; and the Court of Criminal Appeals should interpret the Texas Constitution as its authors would have, rather than follow the United States Supreme Court’s constitutional jurisprudence. For example, I question whether the Texas lawyers who wrote the state constitution in 1836 would have countenanced what we now call Terry stops, physical restraints on Texans’ movement without a warrant or even probable cause.

Q. Your law firm website has one of the best pages ever, Why You Shouldn’t Hire Me. While so many lawyers desperately troll the internet for business, willing to say almost anything for a buck, you try to scare people away. Why? What does that say about your attitude toward the business of law? What does that say about others, who will say or do anything to get a case? You’ve never been shy about criticizing lawyers who engage in unethical conduct to make money. Why do you feel compelled to call out disreputable lawyers?

A. I’ve always been contrarian in my marketing. When I started my practice, I saw many lawyers advertising that they were former prosecutors as though that is an unqualifiedly good thing. I had never seen anyone advertise “never a prosecutor”—the dedicated criminal-defense lawyers were buying into the rhetoric. But “former prosecutor” is shorthand both for things that clients want (for example, trial experience) and for things that clients don’t want (for example, a desire to see people put in cages) in their criminal-defense lawyers, so I started advertising myself as “never a prosecutor,” and explaining the advantages of hiring someone who never put people in cages.
My Don’t Hire Bennett & Bennett If… page is similarly contrarian. Every day we are beset with marketers trying to sell us SEO, links, or leads. So many lawyers are so desperate for the phone to ring, but the truth is that most of the time when our phones ring, it’s a waste of our time, either because the caller can’t hire us or because we don’t want him to.
It doesn’t hurt that it also demonstrates the influence tools of reciprocation (giving the potential caller something for free), commitment (when the caller reads that page and calls anyway, he is hooked), and social proof (I have enough business that I can afford to be blunt about who should not hire me).
I tell young lawyers to act like the sort of lawyer when they start that they want to be. If you want to be a low-bid lawyer with the stink of desperation after twenty years, act like that when you start your practice. On the other hand, if you want to be a Man to See, a lawyer for whose help people pay a premium, act like that’s who you are now. If you want to be a lawyer who grovels for his phone to ring, go ahead and grovel now.
Lawyers who would lie to and steal from clients should not be practicing law. A lawyer who would fudge the facts to get his phone to ring would lie to a client. A lawyer who deceives the client to get a case is stealing from the client.
Why does it matter to me whether other lawyers lie to and steal from their clients? I’m proud of my little corner of the profession, the criminal-defense community. It holds a sacred trust, so important to America that the founders included it in the Bill of Rights, and its lawyers are the finest the bar has to offer. But because of its clientele it has a reputation for dishonesty. I would like to see those who fit the public’s stereotype of criminal-defense lawyers run out of the profession, and I’m not shy about helping do the running.

Q. You’ve had a long term, extremely well-regarded blog, Defending People, at which you’ve picked your share of fights and offered some remarkably thoughtful, maybe even scholarly, commentary. What made you start writing? Was it meant as an outlet for your thoughts, a marketing tool, a platform to further an agenda or something else? Your writing seems to ebb and flow these days. Is it not as much fun as it used to be? If not, what’s changed? Do you see most of the legal writing today helping, hurting or having no impact?

A. Defending People is an outlet for my thoughts. I never had an agenda, and any marketing value was incidental. When I started it I was on hiatus from appellate work, and writers gotta write. Now that my appellate practice is in high gear, I have lots of other things to write.
Most online legal writing is utter crap from people who don’t know and can’t write. I’ll still write occasionally at Defending People, if for no other reason than to raise the tone a bit.

Q. In the past couple of years, your practice has expanded beyond criminal defense into First Amendment law. Your getting a criminal statute thrown out as unconstitutional by the Texas Court of Criminal Appeals certainly helped to propel you into the upper echelon of First Amendment lawyers. How did it happen that you decided to transition? Is there a connection between free speech and criminal defense? Do you see speech and expression on the forefront of new crimes? Do people “get” free speech? There is little question that it’s under attack on college campus, but what about elsewhere? What about in the courts and legislatures? What makes speech so ripe for attack these days?

A. My entrée into First Amendment law was a series of attacks on one particular Texas penal statute, which resulted in one of the largest legal jailbreaks in Texas history. When I started the attacks, I didn’t know what I was doing, but I quickly became one of the foremost authorities on the intersection between criminal law and free-speech law. With one case, I set more convicted people free—convictions reversed, off probation, off the sex-offender registry, off parole, or out of prison—than most lawyers do in a lifetime.
The First Amendment is a lever: every time I kill a statute, countless other people benefit. I will probably never run out of First Amendment work. Legislatures will be passing unconstitutional laws into the foreseeable future. Speech-restricting laws are trendy because legislatures are trying to prevent every harm that can be caused on the internet, and almost everything that happens on the internet is speech.
I have convinced courts across Texas that several such laws are unconstitutional, and I have three cases pending in Georgia—I even got to argue before the Georgia Supreme Court last month. I’d happily travel anywhere else lawyers need a hand challenging statutes that restrict speech. But most lawyers don’t even recognize when a statute restricts speech, or they think that speech is unprotected because it is harmful or violates privacy—propositions that are not true. So I’ve been reaching out to lawyers in Texas and elsewhere offering my assistance for whatever the client can afford.
There are also people who benefit financially from my pro bono fights. By killing speech-restricting penal statutes, I make the world a little safer for the pornographers, strip clubs, and book stores. In fairness, these folks ought to be footing part of the bill.

Q. Where is Mark Bennett heading next? You started out as “Paladin; Have Gun, Will Travel,” and haven’t stopped since. Do you plan to continue further down the First Amendment path? Do you want to keep running for the Court of Criminal Appeals until you get a seat on the big bench? Will you stay a small firm, Bennett & Bennett, or can you picture yourself in something larger? Maybe even teaching, given your scholarly bent? Or will you just continue to ride from circuit to circuit waiting for the next jury to pick and cop to cross?

A. I won’t stop trying criminal cases to juries, but I’ve always looked at trial lawyering as similar to prize fighting: the top fighters aren’t fighting every week, or even every month. They’re spending their time staying in shape and getting better at what they do. Developing the state of the trial-advocacy art is important to me. It helps me to be a better trial lawyer, and gives me something to pass along to make others better as well. I will build my skunkworks project, and keep mentoring young lawyers.
Last year I celebrated my 20th year of practicing criminal-defense law. My criminal-defense legacy is secure in the form of two generations of protégés, and twenty years is long enough to focus so intensely on one thing. So I am directing more of my efforts to where they will make the most difference for the most people. This means more litigation of First Amendment issues, in both criminal court and civil court. I have a small civil free-speech practice already, defending against defamation suits. I am expanding this practice, using my free-speech expertise to represent in civil court more of the people who benefit indirectly from, and can afford to foot part of the bill for, my criminal First Amendment fights.

Cross: Andrew King, The Prosecutor Comes Clean

Mar. 23, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Fault Lines contributor Andrew King, Assistant Prosecuting Attorney in Delaware County, Ohio.

Q. You were one of those annoying Doogie Howser types, doing your first two years of college (at THE Ohio State University) instead of your last two years of high school. No matter how smart a kid you were, that’s a little early to have a firm idea of what you want to do for the rest of your life. You majored in history. Why? What was your plan for the future? No thoughts of science, medicine, Wall Street? What makes a high school junior decide on history as the path to the future?

A. You probably just forced everyone under 30 to Google the Doogie Howser reference. Contrary to implication, I was not a baby gunner. Instead, I was constantly hounded by my teachers for not living up to my potential. Principal Strickland from “Back to the Future” probably would have called me a slacker. So, the decision to start taking college classes was really the confluence of a lot of circumstances. I was bored a lot in school; a kid four or five years older than me had done it; one of my teachers was particularly supportive of the idea; I had good enough grades; and if you ask a Psychology 101 student, I was over-compensating for my father dying a few years before.
And, yes, I was interested in pursuing medicine. Because, unfortunately, math did not come easy to me, and with close to zero study habits, medical school was out of reach. A high school junior, who is still a teenage boy, does not make terribly great and well thought out decisions. Once my idea of pursuing medicine fell through, I sort of drifted through college. But history came easy to me and was interesting; so, as the path of least resistance, I chose that as my major.
The decision to pursue a history degree was not a particularly life-changing decision. Except for the fact that such a major limited my career choices and likely factored into becoming a lawyer. A more consequential decision I made was to get married to a girl I met at Ohio State. I was 18. While it was not always easy, it has worked out for over two decades.

Q. From college, you went to Capital University Law School. What made you pick law, or was that your only choice as a history major? And Capital? Was this an Ohio thing? Did you go into law school with the intention of doing criminal law? Did it come to you during law school, or was that just where you ended up? And what did being a law review editor do for you?

A. As I said, I was not a pre-law gunner. Neither was I reading Brown v. Board of Education for fun, nor was I in class trying to impress my professors with my baby-lawyer mind. Like a number of other people, I sort of defaulted into going to law school. Between graduation and law school matriculation, I had a bunch of jobs, such as substitute teacher, PC technician, janitor, and customer service representative in a call center. And I had a bunch of career opportunities that had failed to work out. For example, I was hired to do some work for a tech company as a consultant. After six weeks of waiting to get a start day, I made what I thought was the perfectly logical decision to call and find out what was going on. The guy in charge must have been a maniac because he viewed that as a breach of protocol and kicked me off the project before I started. That probably worked out for the best; who wants to work with someone who’s so disrespectful of human dignity? And another time, I literally received a call to tell me that I was hired and then, an hour later, got a call back to tell me a mistake was made and that I was not really hired.
So there I was, married, with a kid, working a crappy CSR job in a call center. But then I made the fateful decision to prepare taxes for a year. And for some reason, I actually rather enjoyed the work. Yeah, really I did. Then I remembered that I had taken the LSAT and there were these lawyers called tax lawyers; so, I applied to law school. (Thank you “LA Law.”) Because I was the primary wage earner, I had to pick a law school with a night program. Capital University was the only local school with one, so it was an easy decision.
When I started law school, I had some life experience under my belt and was raising a family. I was determined not to let the same juvenile mistakes of inattentiveness and low effort haunt me. So, I did as much as I could possibly manage to squeeze law school for everything it could give me. I did law review, was president of the Federalist Society, went to Ted Olsen’s house for a BBQ, and so on. I was on a mission to prove to myself that I could do better than I had before.
It worked out well, I think, especially considering that I was raising two kids with my wife, working a full time job, often working two part time jobs, and going to class at night. I do not know if most of that stuff ended up really mattering objectively, but subjectively it did to me. Perhaps I became a gunner after all. You’d have to ask my classmates what they thought.
The decision to get involved in criminal law was largely due to the late Max Kravitz and Judge Algenon Marbley. Max Kravitz had successfully argued, in 1978, at the Supreme Court, along with Tony Amsterdam, that Ohio’s death penalty scheme was unconstitutional. He was well-acquainted with Judge Marbley, for whom I had interned. Max recommended I do some criminal work, and Judge Marbley got me on the CJA list for the Sixth Circuit. That was the beginning of my involvement in criminal law, even when I was doing civil law.

Q. Coming out of law school in 2006, you did a year at a personal injury firm before leaving to clerk for Judge Roger Kline. What did you think of civil litigation? Did you leave because of the opportunity to clerk for a judge, or was it the implosion of the legal market in 2007? By the time you started with Judge Kline, did you know what type of law you wanted to do going forward? Did clerking for a judge help you to choose to be a trial lawyer? How valuable was that clerkship in learning what judges found persuasive?

A. I fell into a really good situation in my 1L summer. I worked for a law firm that had just the year before finalized the largest jury verdict in the state, $51.5 million. It was against Anthem Blue Cross and Blue Shield for bad faith. It was a really terrible case. As is often the case, ugly facts make big jury awards.
They were a good bunch of lawyers. Being a busy, successful firm with only one associate, I did a lot of work that associates in big firms don’t get to do for their first several years. I drafted countless dispositive motions, discovery requests, pre-trial statements, witness disclosures, and so on. The firm was diverse, handling ERISA, insurance litigation, civil rights, and wrongful death; so, it was like drinking from a fire hose of knowledge.
My primary mentor there was a generally well-respected writer and the go-to-guy when plaintiffs’ lawyers had a question or the trial lawyers’ association needed an amicus. By the time I passed the bar, I had done everything but appear in court and examine witnesses. And they trusted me enough that I was arguing a court of appeals case on the day after being sworn in as a lawyer.
After interning for a couple judges, I definitely wanted the experience of being a law clerk. Yet, I was not in a hurry to leave because I was making good money. But fate accelerated that plan. The law firm had expanded into doing qui tam litigation, and opened a satellite office in another city. It turned out that my bosses were much, much better lawyers than businessmen. The firm went through about a year and a half of downsizing through partners splitting up, forced retirement, shedding staff, and ultimately moving the main office and closing the branch office. A first-year associate simply was a luxury they could no longer afford. So, I got the chance to work for Judge Kline, without the temptation to hold on to the nice associate’s salary.

Q. After Judge Kline — and this will likely come as a shock to many — you were a public defender in Columbus. Why defense? Was this a choice, or just situational? You certainly had the opportunity to appreciate what it means to be the accused. What impact did that make on you? Were you comfortable defending? Was this what you wanted to do? What did that experience leave you with going forward?

A. The decision to become a public defender was because of a pair of scissors. My experience was that most lawyers had a lot of room to improve, particularly with their brief writing. And when you read the transcript and looked at the docket, it seemed to me that more than a few lawyers were not adequately prepared when they went into court. That is, except for the state public defender. They routinely had the best briefs, they were the most aggressive at trial, and they generally had the best legal theories. It was a remarkable difference between them and almost everyone else.
One of their attorneys successfully made an insufficiency argument before the court. The case was basically a domestic violence case where the wife stabbed the husband with a pair of scissors. As I recall, the prosecutor indicted the case as a relatively serious form of assault. The defendant was looking at significant felony time, although the victim was not actually injured. The appellate attorney picked up on a key fact that the trial attorney completely overlooked—they were craft scissors without tips. She essentially stabbed him with two blunt pieces of plastic. The attorney included a picture of the scissors in the brief and won.
So, when my term was done, I applied to work at one of the county-level branch offices that do felony trials. I had been a civil litigator, a CJA Panel Attorney, and after the clerkship, I felt like I was ready to really mix it up. It turned out to be the weirdest job offer/rejections I had received. The branch chief felt like my skills would be wasted as a trial attorney and sent me up to the state office to be considered by the appellate division.
Initially, I was in the felony appeal and post-conviction division, but then transferred to the death penalty division. What I learned from being a public defender could fill pages and pages. Generally speaking, I did not have reservations defending my clients. Unfortunately, what I observed as a law clerk was reinforced doing criminal appellate work—there are far too many substandard criminal defense attorneys.
Besides the disparity in money, and that open discovery was not the rule for much of my time back then, my impression is that many of the bad attorneys adopted a volume-based business model, which I understand for pecuniary reasons. It’s not uncommon for personal injury attorneys to do that, but a lazy PI attorney might cost a client a few thousand dollars in settlement. An inattentive criminal defense attorney can cost the client years of prison time. And too many of them were not aggressive enough in their defense, which still puzzles me. This was particular true when it came to forensic experts.

Q. While a public defender, you did some serious cases, trials and post-conviction work. You were one of the public defenders who represented some nasty killers, Sidney Cornwell when he was spared execution based on the “small testicles” defense, as well as Kevin Keith, whose death sentence was commuted. You were no slouch as a PD. But how did your first trial as a PD go? Were you scared to death, or raring to go? Looking back now, did your first trial go the way you thought it would? Any major screw-ups? How did it feel to get your first two-word verdict?

A. Being part of the machinery of death is difficult to describe. The time I was there was probably unlike any time before or after, and my co-counsel were great attorneys. The state was executing defendants once a month — a couple times, twice a month. There was a lot of pressure, some successes, and some failures. It’s hard to describe the feeling of sitting in the room next to the death house watching the clock and waiting for the phone to ring. And then someone is dead. All of it happened according to schedule and plan. It’s an indescribable feeling.
It is a heavy burden. As counsel, you are often the only person the inmate has frequent contact with, and they are placing a lot of hope on you. Screwing up is not an option. You miss a claim, he dies. You fail to find evidence, he dies. You don’t talk to a witness, he dies.
I was fortunate to be part of the teams that got two commutations. Kevin Keith was a case of actual innocence with national and international interest. Cornwell was a case of a young gangbanger, turned reformed man, who was basically seeking mercy. They were two very different cases that required two totally different approaches. What was interesting in both was how post-conviction counsel impacted the later course of litigation. In Keith’s case, counsel dropped the ball and legally doomed his innocence claim. On the other hand, Cornwell’s attorney somehow suspected that he might have Kleinfelter’s and argued it. That alerted us to the possible claim, which is what formed the basis of his relief.
You really get to know these men as the people they are, not as some caricature. The most difficult thing about the death penalty, I think, is when defendants reform in the decades after the crime. Cornwell was a gangbanger who shot wildly into a house and killed a kid. But when his number was called, he was almost twenty years older. You can’t execute the teenager who shot a little girl. You can only kill the man that kid became. Believe it or not, I carry those experiences with me even as a prosecutor.
Capital litigation is probably the most challenging type of litigation. For me, it brought together a lot of my civil and criminal experience. We did a lot of good work there, and I wouldn’t trade it. It’s hard to say that I enjoyed it because of the stakes, but it definitely was fulfilling. Part of me still misses it. And I am rather certain I am the only prosecutor to have received an award from Ohioans to Stop Executions.

Q. After working as a PD, you struck out on your own. Was there a reason for leaving? Was there some conflict with what you were doing as a defender and what you wanted to do as a lawyer? When you hung out your shingle, did you plan to continue in criminal defense? How did that work out? Was opening shop what you thought it would be? Your practice was more general than criminal. Was that a matter of choice or necessity? How did you like being the big boss and janitor?

A. The Ohio Public Defender’s Office has a colorful history. At one point, Billy Milligan, who was found not guilty by reason of insanity, worked for the office that had defended him (so I was told); the office had a couple directors that had basically been fired; and it had a few attorneys that had been disciplined for a variety of conduct.
I didn’t realize it when I started, but the office did not have a good reputation. You can do a LEXIS search and find cases where judges called out attorneys and the office for poor performance, sometimes by name. Unfortunately, it turned out that it was somewhat deserved. As if hiring a guy who successfully beat a murder charge by claiming multiple personality disorder was not reason alone to question the management.
When I started, the Director was still relatively new and trying to turn around a bureaucracy that had lost some of its professionalism. He took over from a Director who was fired for ethics problems. So, there was a lot of turnover in the line attorneys and management. Personally, I had something like six supervisors in nine months. As much as I liked my coworkers and the work, the office was too unstable and poorly managed. Now, years later, from what I hear and see, I think that the Director has put things back together. It is never easy to change an entrenched office culture. So, he deserves credit for doing that.
I was the stereotypical general practitioner, taking a wide range of jobs. I did everything from handling misdemeanors, federal criminal appeals, dissolutions, employment law, contract work, document review, and commercial law. At the time, my kids were still young and my wife had returned to school to become a nurse practitioner. So, it was nice to have greater control over my schedule and make sure my family’s needs were being met. When I was a public defender, it consumed my existence and my family suffered.
Ultimately, I never really settled into being a solo practitioner. For almost my entire legal career, I had been part of a team. It was always beneficial to walk into someone else’s office and get their ideas or get feedback on a brief. When I became Of Counsel at a firm, it reminded me of the benefits of working with others and being part of a team.
Also, there was the pesky problem of cash flow. In the first season of “Better Call Saul,” Jimmy is working out of a closet trying to build his firm. If I had been a young, single guy, then it probably would have been no problem. But I had a mortgage to pay and kids tend to need things. In many ways, I was back to where I was during law school, working a lot of different jobs and spread all over the place. I think every solo practitioner can relate. The upshot about all this is that I did not enjoy it very much. So, when my wife was in a stable job and had her studies under control, and my kids needed less attention, I began to look for ways to get out of running my own practice.

Q. Your solo practice lasted three years. Was it as hard, or easy, as you thought it would be? Was three years enough, or too much? From there, you took a 180 and went to work for the Delaware County Prosecuting Attorney. That’s quite a shift from public defender. Was that where you wanted to be? Was there a prosecutor hiding inside your PD suit the whole time? Any cognitive dissonance going from keeping them out to putting them in?

A. I have to give my current boss a lot of credit for taking what looked like a risk on me. As I said, the Ohio Public Defender’s Office was a damaged brand. I applied for another judicial clerkship, and the judge treated me like a circus animal, a thing of curiosity. My interview with him was basically him telling me his opinion on the Public Defender’s Office and asking me to respond. On top of it, I drove three hours for such an uncomfortable interview.
Plus, my boss had worked in the Attorney General’s Organized Crime Unit and had some peripheral involvement with the Kevin Keith case. So, I do not think we necessarily saw eye-to-eye on that case. Despite all that, she hired me, and I have never looked back. It’s the best office I have worked for, and she’s the best boss I have had. (Judge Kline was great too, but the dynamic of being a judicial law clerk to an appellate judge is not comparable.)
Here, the prosecuting attorney is both the criminal prosecutor and legal counsel to the county and many local governments. What attracted me to the prosecuting attorney’s office was the breadth of the work. It was everything I liked about being a solo practitioner and death penalty litigator, without the accompanying downsides.
Among the public defenders of similar age, I think we all understood the harshness and unfairness that the criminal justice system can dole out, but at the same time, perhaps being raised during the War on Drugs and after the civil rights era, we also could acknowledge that there was need for putting many of these defendants away. Cops and prosecutors could do bad things in individual cases, but my general sense is there we did not have the pervasive mistrust and assumed an invidious motive.
On the other hand, our clients were rarely with clean hands. For example, a couple of times, we had women who fell in with a bad boy, who got some time in prison. These guys would often convince their girls to do something criminal for them, like illegally convey something into the prison. As a human being, you certain would feel bad for them and could easily argue that they deserved mercy. But on the legal side, it was usually pretty cut and dried that they committed the crime.
When you’re fighting for the little guy as either a criminal defense attorney or personal injury lawyer, it’s pretty easy to rail against the system. And see yourself as the noble David trying to slay Goliath. Personally, most of my family is either Irish or Appalachian hill folk. Consequently, I think I come by my suspicion of authority honestly. The idea of becoming part of the State was intellectually the most difficult part. And there are many days that I feel like Ron Swanson. But fortunately there are a couple kindred spirits that have a similar outlook, so it made it a much more comfortable transition.

Q. As a prosecutor, you’re given a great deal of discretion as to whom to prosecute and, in the event of a plea bargain, fashioning the right deal. Do you have any philosophical approach? Would you consider yourself an easy touch or a tough guy? Are there certain types of crimes that you feel are particularly harmful, beyond the obvious? How about the so-called victimless crimes, drugs or prostitution? Do you view all crimes as “violent” in the sense that someone is harmed by any crime? Is there any crime you feel is less culpable, and should be treated more gently?

A. In our office, the decision to indict is generally made by the grand jury prosecutor, who then hands off the case. Our office generally has the approach to charge the most serious conduct and be ready to go to trial on the indictment, which strikes me as the right approach. Of course it does not always happen that way, but that is the general idea. You shouldn’t be over-charging someone to get them to plea to something else. Nor should cases be indicted prematurely where you happily take a quick plea to avoid preparing for trial.
If you indict a life rape, and then drop it down to a lesser charge and a recommendation of just a handful of years, then that sends mixed signals and weakens accountability. Is the guy a rapist, and you’re too lazy to prepare the case? Or did you overcharge a guy to force a plea? I can appreciate, as a defense attorney, showing your client that you got the charges dropped helps with client management. But it’s really not the role of the prosecutor to empower the defense attorney to lean into the client for a plea.
Prosecutors should generally avoid making sweeping, top-down policy decisions on issues such as marijuana legalization or prostitution. For example, a prosecutor can personally believe that either of those things should be done or the death penalty should be abolished, but that’s not the prosecutor’s role in the process. For example, Hamilton County Prosecuting Attorney Joe Deters supported marijuana legalization, but as far as I know, his office never stopped prosecuting marijuana-related drug crimes.
As I suggested above, I think the generation younger than the Boomers are more open to decriminalizing a number of things. So, those are probably issues that eventually will be taken on by the policy makers. But until then, I am not convinced that it is a proper use of discretion to refuse to prosecute entire classes of crimes simply because you have a personal disagreement with some of the laws.
The question of mitigation is an interesting one. I had a case of a guy for whom I managed to get a re-sentencing. The guy had a terrible trial attorney, had a factual innocence claim supported by the victim, and got a max sentence. But he had a relatively clean record, good reports while in prison, family members spoke on his behalf, the victim asked for mercy, and was doing all the right things while inside. The judge ignored all of it and said that, while interesting, it was not relevant to sentencing and gave the guy the same sentence. On the other extreme, in death penalty cases mitigation is essentially a constitutional right. So, I do think that judges should probably have more guided discretion to depart downwards, rather than the rules always requiring a ratcheting upwards.

Q. Ohio has been through a lot of prosecutorial drama and trauma, with the killing of Tamir Rice apparently being the impetus for Tim McGinty losing his primary race for Cuyahoga County prosecutor. What’s the sense of prosecuting cops? Would you rather not be in that position? Is hard, if not impossible, to go after a police officer who you worked with? Do you find cops’ decisions to fire more understandable because of an inherent sympathy? What about the old public defender in you? Is it okay with him too?

A. I wrote about the issue of prosecuting cops for Fault Lines. The lesson I think local prosecutors are going to take away from what happen to McGinty and Alvarez is that it is probably best to avoid the appearance of conflict altogether, and bring in an outside prosecutor to handle the case. I do think in many cases local prosecutors can prosecute local law enforcement. Before Rice, most prosecutors would take cases to the grand jury. And usually the no bill was deemed sufficient. But not anymore. Like most things in life, you have to adapt to the changes.
Part of my job is representing and advising the Sheriff’s Office and another local police department. Every elected prosecutor in the state, except McGinty interestingly, represents their county’s sheriff. So, in that capacity you get to see the sausage getting made.
Based on my experience, most people get into law enforcement for the right reasons and truly want to be a good cop. I have literally sat across the table from them and interviewed them. Certainly, there are some people that should not be law enforcement officers. The sad part about that is how difficult it is to get rid of the bad apples. I believe Radley Balko has written on this issue to some degree. I completely understand that if you’ve devoted twenty years to a job and have a pension, you don’t want the newly elected Sheriff to come in and arbitrarily destroy your career. But in most cases, it’s the least deserving that get the most job protection.
I think our office does a pretty good job of fearlessly going after cops that break the law. And part of that may be due to my boss’s background in organized crime, which sometimes involved elected officials. There are probably a few prosecutors who should be more aggressive and are not. And I can see the desire to have something of a backstop in those cases. I just have yet to see a good suggestion.

Q. While a lot of Fault Lines readers disagree with you, they appreciate the fact that you’re willing to write and, well, don’t hold back, knowing that your views are likely to receive some harsh scrutiny. What they may not appreciate is that you’re able to write because your office allows you to, which is really very impressive. They must have a great deal of faith in you to give you that freedom. How concerned is your office with what you have to say? How concerned are you about speaking your mind, knowing that many readers aren’t particularly simpatico with the prosecution? Do you sometimes soften the blow, or strike a little harder, because of it? Do you think people really understand and appreciate the need for the prosecution function? Do they get it?

A. This will probably be something like the twentieth time I have complimented my boss, but she deserves a lot of credit. I keep her in the loop regarding what I am writing and she has been supportive. I recognize that she’s putting trust in me, so I do keep that in mind when I am writing. Nothing should reflect poorly on her or the Office. But that consideration does not really impact my opinion.
I do my best to call them like I see them. I definitely do not soften the presentation, but you could say that, because I am presenting an unpopular point of view, I tend to be less nuanced about some positions. I can see the other side of issues to be sure, but it’s not particularly interesting to read me argue with myself. So, I think that is more a matter of style and tone than content. Of course, that led my co-blogger to call me a heel (as in a wrestling villain). But I think that is good. It means that what’s written goes deeper than superficial.
It is my belief that a lot of detractors would do well to mind G.K. Chesterton’s admonition about tearing a fence down before understanding why it’s there. As I alluded to before, it’s pretty easy to cast stones at the police and prosecution, but there’s often a reason why things are the way they are. That’s a perspective I work to bring. It may be that the fence was put there for the wrong reasons, but we have to get there before demanding we remove it.

Cross: Ron Kuby, The Dude’s Radical Lawyer

Mar. 15, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Ron Kuby, criminal defense and civil rights lawyer and radio warrior.

Q. Even by the standard of the times, you had a pretty unconventional upbringing, where you ended up leaving the United States while in junior high school for Israel as a follower of Meir Kahane. Yet, five months later you were back here. Why did you go? Was it what you expected? What happened that Israel put you back on a plane? It’s not easy to get thrown out of a country as a junior high schooler. How did you manage that?

A. It was something I said…
Seriously, it was. I was delivering an insightful, thoughtful, and experience-based (though unsolicited) critique of Israeli society to a group of American tourists one afternoon, who were visiting the youth village where I was hanging out. Apparently one of them was a more than just a tourist. He had some connection with the government and got mightily pissed off. Two days later, I was told “you travel tomorrow,” and in the morning, I was escorted to the airport and placed on a plane back to the United States. It was fine. I was getting sick of the place and didn’t have any money to fly back anyway.
Explaining the “how” of returning is easier than explaining the “why” of going. It will surprise no one to learn that I was a rebellious and troubled youth, in an era of troubles and rebellion. By the time I was 14, I was expelled from Junior High School for writing an underground newspaper. I was living with my mother, until one day she told me that she was moving out and the rent was paid through the next month. No one was volunteering to let me live with them and/or give me a job. This was Cleveland, in 1971. Anywhere had to be better.
I was already a young Zionist hoodlum, having joined the Jewish Defense League when I was 13. I was hardly the first errant youth at that time who shipped off to Israel to get straightened out. Yossi Klein Halevi, in his Memoirs of a Jewish Extremist, Harper Collins (1994) describes an almost identical journey to mine. But he made aliyah a few years after I was deported and long after my idealized Zionism had disappeared.
I enjoyed my time in Israel. The government sent me to a youth village that was also a destination for various student-tourist groups looking for an authentic kibbutz experience. I knew where to buy booze and score hash, I knew where to change money and where to stay away from—they befriended me, then would move on to another city. Then a new group came. After a while, I had friends all over the country, and could crash with any of them. I would go to tourist areas, usually with a hot but sincere girl, and we would scam tourists by claiming our group left without us, we needed x pounds (this was pre-shekel) to meet them in wherever, then I’d have enough money for a week. That part was all good. A bit sketchy, but good.
But it was a brutally authoritarian society. Highly militarized, which I did not like, and highly racist, which I despised. The level of animus toward the Arab population and daily, casual abuse reminded me of the American South. I would hang out in Jerusalem, and would gravitate toward the Arab quarter. I eventually spent a lot of time with Palestinians and discovered I liked them a good deal more than the Israelis, and they had their own stories to tell.

Q. You graduated from the University of Kansas with a degree in cultural anthropology and history, after spending some time roaming the hemisphere. From there, you decided to go to law school at Cornell. What made you decide on law school? Did you go in with the purpose of doing criminal defense? Any other practice areas that caught your interest? Did you like your time in Myron Taylor Hall?

A. True story: I had applied for a Danforth Fellowship (it was like a Midwestern version of the Fulbright) to do graduate work in anthropology. The Danforth Committee would not consider your application unless you were recommended by your university. No problem, I thought—I had done original fieldwork in the West Indies, authored the then-definitive work on folk medicine in the U.S. Virgin Islands (OK, the only work, but still). I was a straight “A” student and had presented at an international conference, as well as published papers. I was the best fucking anthropology student in KU’s history. But they refused to recommend me.
One day, I saw the head of the university committee and asked him why? He told me it was my general attitude—which the committee found—wait for it—“condescending and arrogant.” I walked to the bar where I worked and told the bartender. He said “you should go to law school, they like people like that there.” That was really the first time I thought about it. Other stuff happened too—I was arrested in demonstrations, organized resistance to draft registration, got my arm broken by the cops, and dealt pot—things that gave me some exposure to legal topics in non-academic fora and naturally gravitated toward criminal defense and civil rights.
I had no money and no advice from anyone about where and how to apply anywhere. A guy who was living in our commune suggested I apply to Cornell because “it’s a good school.” And it is. I owe a lot to Cornell. Once they accepted me (I think I was “geographical diversity”), Dean Anne Lukingbeal, who just retired, made sure I had enough financial aid to afford it. I got a great legal education there. Strictly old school, right out of “1L.”
I enjoyed the intellectual challenge of it. This was a new way of thinking about the things I had always thought about; here were analytical tools to construct and deconstruct arguments.
But I didn’t love the experience. Most of my fellow students had been rejected at Harvard, Yale and/or Stanford, so they already had a sense of inferiority and an aggressive competitiveness for those associate positions in BigLaw. Clinical work was thought of as an inferior form of legal education. I despised most of them. The feeling was reciprocated. The problem was, in their view, only losers are leftists–jealous of the success of the winners. But I was a fucking great law student. Coasted into Law Review on grades—then quit because it was taking too much time from Prisoners Legal Services, one the few clinical programs Cornell then offered. As soon as the last course was finished, I went to New York City to start working for Bill Kunstler full time. Didn’t even show up at graduation.

Q. During school, you somehow managed to hook up with probably that best known radical lawyer in America, Bill Kunstler. How did that happen? What was it like for a kid to learn the ropes with someone as well known as Bill? Did he influence your politics and vision of the law? Were you both on the same page from the outset? What did you learn from Bill?

A. It was serendipity. When I was interning at PLS, one of the attorneys who used to work there, Mark Gombiner (now with the federal defender in SDNY) was then working for Bill. So the staff attorneys encouraged me to write and request an internship. I did. No answer. I wrote again, including a writing sample and some other materials. No answer. Finally, I started pestering Mark, who pestered Bill enough that he said OK—no doubt figuring I would have limited usefulness and flake out quickly.
For me, from the first time he opened the door wearing a dress shirt and boxer shorts and thrust a cup of coffee into my hand at precisely 8:00 a.m. on Monday, I was in love. Then it was just classic figuring out how to make myself as indispensable as possible. I had a small but important Public Interest Law Union grant from Cornell (thanks again!) that allowed me to live without pay, and was staying at the home of a classmate’s father in New Jersey. So long hours, take on every shit job, figure out what to do with a minimum of guidance, do it well, do it before Bill even knows it needs to be done, etc.
I eventually found the packet I had so eagerly sent to Bill. It was unopened, and wedged between an air conditioner and a windowsill to make the former flush with the latter.
So funny to think about what I learned from Bill. What didn’t I learn from Bill? Of so many memories, I recall a warm spring day when Bill and I were having lunch in a little café down the street from his Greenwich Village home/office. We were talking and laughing and munching and I realized that I am now living some of the greatest days of my life. Years from now, I thought then, I would think back on these days with amazement—that was me, I was there, we did these things. So love these days and give all you can and learn all you can. It was the first time in my life that I realized just how amazingly fucking fortunate I was and that I needed to savor it while it happened, rather than look back and regret I did not appreciate it at the time. Below is a short list, in no particular order, of things I recall from Bill:
Ridicule is more effective than bluster
Every day after trial, make notes for your summation in a separate summation book. You may think you will remember these points, but you won’t. By the time you need to write your summation, it is already largely written.
Remove loose change from your pockets before addressing the jury.
All white people are racist, and you tend to find out at the most inconvenient time.
Grab all the free pens and pencils you can.
Don’t be too elated by your victories or too upset by your losses. There is more work to do tomorrow and you need to be able to do it.
In America, celebrity triumphs over everything, even disapproval.
Most of the people who claimed they marched with Dr. King where nowhere near the South. Or as Norman Siegel likes to say, “if all the people who claimed they were on the Pettus Bridge actually were there, it would have collapsed.”
Bring a crossword puzzle to work on during the court’s charge.
Every good defense has a theme which needs to be followed. Every question you ask and every witness you call must support that theme. Don’t get bogged down in cross-examination which, while it may make the witness look foolish, does not support your theme.
Decide what you want to get from each witness, get it, stop.
Don’t take yourself so fucking seriously.
White liberals are such bullshitters when it comes to a Black man’s life.
You really can put legal argument in an Affirmation.
Don’t represent rats.
The jury still represents the single most powerful check on the government’s power to criminalize.
Seek justice, not law. More people have been slaughtered “under law” than any other justification.
Every newspaper has 100 pages each day it must fill with something. It might as well be you.
When Bill gave speeches, he would usually end by a reference to Moby Dick, and assert, in his great basso profundo, “Ahab may have gone down lashed to the white whale, but tomorrow, Ishmael returns to the sea.” Thunderous applause followed.
It wasn’t until after Bill’s death that his closest friend, Bruce Jackson (l’uomo universale in his own right) pulled me aside and pointed out that it was not at all clear that Ishmael returned to the sea, tomorrow or at all. Indeed, he told me, Melville left that point deliberately ambiguous.
True, perhaps. But that is only because Melville never met Bill Kunstler. Had he been so fortunate, he would have made explicit what Bill always knew—that the struggle against injustice is perennial, and that everyone is called, in successive generations, to play their part in the fight for justice and freedom.

Q. Every new criminal defense lawyer has a first trial. For most, it is a humbling, if not embarrassing, experience. How did it happen for you? Did you think you were ready to beat the world going in? Did it turn out that way? Was there some deeply humiliating experience that happened to you as it did the rest of us?

A. My whole life has been a succession of deeply humiliating experiences. Let’s see, there was the first day I interned for Bill and he gave me a giant stack of papers to file in federal court to obtain an injunction and told me if I fucked it up, I shouldn’t come back. I threw myself at the mercy of a Southern District clerk (who knew a helluva lot more law than I did), and she took pity on my brown eyes, brimming with tears. Or the time my pants ripped down the seat as Bill and I were headed to court for opening statements in some high profile murder trial, and Bill reassured me that no one could see it but “don’t let your cock flop out during my opening.”
Then there was the time in Atlanta in the ‘90s, when Bill and I were conducting an evidentiary hearing in the Wayne Williams case. I had just hit my pace in cross-examining a Georgia BCI detective, while I was leaning comfortably back on an old wooden railing. I slid over to grab a document and got a splinter, actually a chunk of lumber the size of a pencil, in my ass. But I am on a roll and do not want to break the momentum. Begging Bill to yank the splinter during a bathroom break counts as deeply humiliating….
I know there are scores of others, but, as is said in the great Irish folk song, (although the Scots beg to differ on origin), The Parting Glass, “And all I’ve done, for want of wit, to memory now I can’t recall…..”[1]

My first trial was a murder case in Virginia. Bill let me handle some of the less important witnesses, including a cop who was pretty well pinned down in a series of prior statements. I thought, no problem. On the stand, he completely contradicted himself and I was stunned. I went back to the table and Bill said, “well, cross examine him!” Uh, okay. Got it.
It took me thirteen years before I felt that I owned the courtroom. That this was my place and I was in charge here—no matter what some clown in a black robe thinks. Thirteen years before I really felt I knew exactly what I was doing and how to do it. Dunno about the rest of you.

Q. As far as the rest of the New York criminal law community was concerned, you and Bill eventually became partners, holding the firm out as Kunstler & Kuby. When Bill died, and his wife, Margaret Ratner, blocked you from the office, the files and use of the name, we were shocked. What happened? Was it a matter of money, of pride, of some sort of personal animosity? It seemed incomprehensible that you wouldn’t take over the practice, and yet Ratner went to great lengths to make sure that didn’t happen. What went so terribly wrong?

A. Gosh. That one sure caught me by surprise as well. In 1994, after I had worked for Bill for 11 years, he named me a partner and renamed the firm Kunstler & Kuby. In his autobiography, My Life as a Radical Lawyer, Birch Lane Press (1994) he wrote of me, “he became my associate and is now my partner.” Id. at 397. The last chapter of the book is entitled “1994: Kunstler & Kuby” and the book ends with Bill writing, “I expect Ron will be here always, as long as always is, carrying on the work of Kunstler & Kuby.” Id. at 398.
When Bill died just a year later, the firm was several hundred thousand dollars in debt—mostly a labor debt to our clients. Like a lot of small criminal defense firms, we ran our finances kind of like a Ponzi scheme—the money that comes in today pays for the work for last year’s client whose case is now coming to trial. In my best year at the firm, I made $55,000. For the next year, I worked 70 and 80 hour weeks to complete the work we had been paid for, bring in new business, and pay “rent” to Bill’s widow. I did not seek her assistance to finish this work, nor did she offer any. I figured I owed it to Bill not to saddle his widow with obligations of the firm, and I certainly owed it to our clients to continue to provide the best representation I could.
After I finished up everything nice and tidy, Ratner sued me, claiming the partnership was not a genuine partnership, and I was just an at-will employee. She won a preliminary injunction, prohibiting me from using the name “Kunstler & Kuby.” At that point, I bailed. I had no money to pay counsel—I was being represented by a friend who knew as much about partnership law as I did. She was represented by a top BigLaw partnership lawyer, and was backed by the money of her second husband, Michael Ratner, the brother of developer Bruce Ratner and heir to the Ratner real estate fortune. The widow had a talent for choosing husbands. She had three before she was 30, each more impressive than the last.
I also did not have the time or inclination for that fight. I had many clients and many cases, and did not want to end up as a civil litigant, living from motion to motion, order to order, appearance to appearance. And I was concerned that in fighting to keep the name “Kunstler,” I would tarnish the name Kuby. You cannot win by getting into the muck with the grieving widow. When the case was finally resolved in late ’97, I walked out of the courthouse singing “Maggie’s Farm,” Bringing it All Back Home, Dylan, Bob (1965) and didn’t look back.

As to the why of it, I now have a pretty good understanding of it and it is not pretty. But as I said, you cannot win by getting into the muck with the grieving widow, so I am going to keep it classy.

Q. Bill Kunstler was the ultimate cause lawyer, but you were always more practical in your practice, representing defendants without regard to their politics. Was this a difference in how you viewed your practice, or was the cause of defending the accused enough of a cause for you? Do you see yourself as carrying on Bill’s legacy, or is that past history?

A. Bill and I were always there for the defendants whose progressive politically-motivated actions ended up in encounters with the law. We both saw ourselves as “movement lawyers,” attorneys who would contribute our skills to the causes of social change championed by our clients. I still do that work, for groups and individuals fighting climate change, Black Lives Matter, and Occupy. Bill and I both refused to represent defendants who commit acts of violence to deprive others of civil liberties—killer cops, abortion clinic bombers, and the like. If I wanted to represent right-wing killers, I would have gone into corporate law.
At the same time, there were many defendants who were wrongfully criminalized, or whose basic rights were being violated in an atmosphere of fear and hysteria. We would (and I still do) represent them as well. The best example is the Central Park Jogger rape case—which was not seen as a “cause,” especially by white people. When we took up Yusef Salaam’s case, and questioned the validity of the confessions, Bill was attacked as someone who used to stand for noble causes, but now just represented the worst street thugs and rapists. We know how that turned out. Sadly, Bill didn’t live to see the exoneration, but he never doubted it would happen.
We also took cases simply because we were pissed off at something the government or some other bully was doing to someone, or cases just to stick our thumbs in the eyes of authority. When Giuliani was rousting the squeegee people, we offered free representation to them. Boy, did that piss people off. We never got as much hate mail and angry calls—ever. Clin Ferguson (the LIRR gunman), meh. Sheikh Omar Abdel Rahman of the first World Trade Center attack, meh. But SQUEEGEE MEN!!!!! And I still do that kind of “fuck you, oh yeah, FUCK YOU” work.
Sometimes we took cases just because we needed to make a fee to keep things together. While we had basic principles about things we would never do, there was flexibility above that line. And the flexibility often moved in a direction inverse to our bank balance.
Contrary to public perception, neither Bill nor I ever took cases simply because the accused is entitled to a defense. Usually that is just an excuse to make a shit ton of money and come up with a high-minded justification for it. Bill was often attacked for saying he only represented people he loved. A bit of an overstatement, perhaps, but Bill had a large capacity for love.
The truth for me, at least, is that criminal defense work is an incredibly intimate experience. As the wonderful Lynne Stewart taught me, there is always something, some spark, in even the worst person who has done the worst thing, which illuminates an underlying and tortured humanity. If not loving all my clients, I usually end up at least liking them. But I have always tended to like people who like me…
I spend much more time thinking about why I am choosing to represent any particular person than Bill did. Bill had wonderful instincts and was not afraid to act upon them. He would see injustice and he acted, and he was almost always right. Meanwhile, I have a tendency to dither about this or that, and well, what about the other thing, and sometimes the moment for action passes.
As to carrying on Bill’s legacy—it is a big legacy. Huge. Bill began battling the forces of McCarthyism in the ‘50s, worked for the civil rights and anti-war movements in the ‘60s and early ‘70s, took up the cause of anti-imperialist freedom fighters in to late ‘70s and early ‘80s, and fought the new Jim Crow, as Michelle Alexander so trenchantly named it, in the late 80s and 90s. He lived through every one of the fights of his many days, and contributed to the cause of liberty and justice in each of them. In his spare time, he wrote poetry, authored ten books (including one best seller, The Minister and the Choir Singer, William Morrow, 1964, about the Hall-Mills murder case, and the lesser known Law of Accidents, Oceana Publications, 1954), served in the United States Army as an infantry major during WWII, married two women and raised two families, and smoked a lot of pot. No one can carry all of that on. They do not make people like that anymore. I would like to think I am, as Bill hoped, “carrying on the work of Kunstler & Kuby.” That is for other people to judge.

Q. Not that you have a face made for radio, but you teamed up with Curtis Sliwa, who started the red beret’ed vigilante force Guardian Angels in New York City, for a radio show. How did that happen? Sliwa’s claim to fame was as a “regular joe” street guy, whereas you were the thoughtful liberal. It seemed as if he had the easier side of the deal, with fortune cookie platitudes that were easily digested for the hard of thinking. You, on the other hand, offered ideas that required thought, intelligence and a fairly strong level of erudition. Talk about an Odd Couple. Did it work for you? Did you feel that the medium put you at a disadvantage? Was it fun at least? And what brought it to an end (the first time) eight years later?

A. In April of 1996, I was in the middle of trying the civil case against subway gunman Bernhard Goetz. Bill had started the case in 1986 in the People’s Republic of the Bronx, but delaying tactics by Goetz, plus the usual Bronx civil backlog, postponed the case for a decade. Alas, Bill did not live to see Goetz’s denouement.
One Saturday, while doing trial prep, Curtis called to see if I would do a short interview with him as a “newsmaker.” The short interview became a contentious and relatively entertaining hour-long debate. The program director happened to be listening and thought if I could talk about other things besides this case in the same way I talked about this case, it could be a good show. So in November, 1996, I pared up with Curtis for a three-hour show—the Monday Night Fight. From there, the show grew, taking over more and more timeslots, sort of like Israel with the Palestinians. Eventually, we got the big prize—the WABC morning show, starting on May 1, 2000. I was fired on November 1, 2007, and was re-hired, under different management, on January 1, 2014. My contract was just extended through at least this year. And talk radio pays money—the same amount every two weeks. It is a respectable mid-six figures and it pays for my law practice. At least, I do not have to make any money from law. And it turns out. I am very, very good at that.
I think I became a much better lawyer because of talk radio, and a much better talk show host because I am a trial lawyer. With every caller, and with Curtis, just like every witness, you make a very quick decision about what you want to do—play it hard or soft, kind or mean, get a laugh or throw a punch—and how will it be heard by your audience or your jury? It is also personality-driven radio, so I am expected to do what most people want me to stop doing—being me.
It ended because my boss hated me. He was a rightwing knuckle dragger and wanted a station of the same. He hated the fact that I was trying to keep the level of dialogue in triple digit IQ points. First, he tried to fire me, but his bosses kept overruling him. Then he tried to make my life so miserable that I would quit. But for $750,000 a year (which is what I was making then), I can endure a lot of misery. Finally, as part of the cosmic comedy, Don Imus got fired from WFAN for making racist comments. WABC had just been sold to Citadel (now bankrupt), and they wanted Imus for the morning show. That provided my boss the opportunity to fire me.
Now I never thought Imus should have been fired for his comments, but I certainly didn’t think he should get my job. I was doing a show with Bernard McGuirk, one of the Imus guys who participated in the famous Rutgers basketball comments. He started to go down a racial road in the conversation, and I warned him: “Remember what happened last time you did that.” He replied: “Yeah, you got fired.” As we say, shit happens.

Q. Do you remember what I did immediately after my son and I watched the Big Lebowski?

How does a lawyer become such a household name that he finds himself a cult hero? When did you find out the Dude wanted you to be his lawyer? While Jon Rapping won a MacArthur Genius Award, you will be forever immortalized in the Big Lebowski. Does it get any cooler?

A. So my daughter and I were talking and I mentioned that I had worked with Barry Scheck on the first federal DNA case in Ohio, in 1991. She looked up and said, “you worked with Barry Scheck?” I nodded and smiled. She asked: “Why is he so much more successful than you?” Hey, Barry may have played himself in the Good Wife, as well as numerous other appearances and mass culture references, he may have almost single-handedly created the Innocence Project and exonerated hundreds, he may be a consultant on major aspects of criminal justice reform and has done more for more people than any lawyer I know, but I got the shout-out in the Big Lebowski. Nothing is cooler than that.

Q. You’re closing in on 60, still haven’t cut your hair, and still have more business than you can handle. Is there anything else you want to do before you’re done? Do you still want to try cases, teach maybe, sit on a bench before it’s over? You’re back on the radio with Sliwa, but the times are very different now than then. Is there a next step in the career of Ron Kuby?

A. Ha! Sixty is closing in on me—not the other way around. And I suspect that is a fight I will not win. Or at least not on the terms I would want. On the other hand, law is one of those few professions that you can practice well into old age, as long as you have your health and your wits (and sometimes not even the latter). I do find it unnerving when people talk about the great career I’ve “had.”
I have been married to the same woman for 30 years. Our daughter will be matriculating at Georgetown Law School this fall, so I look forward to many trips on the Acela express over weekends to kick around hearsay rule exceptions, or the Statute of Frauds.
There are some things I definitely do not want to do—retire, judge, or teach. My general attitude is anathema to all three.
Talk radio is still great fun and pays very well. The only problem is that one day they are putting up billboards with your picture on them, the next day they are scrubbing your name from the website and it is like you were never there. With law at least, they have to give you notice and due process before they yank your ticket. I’ll probably keep the radio gig as long as they want me.
But practicing law is still what I do best, and love the most. What I lack in the energy I had thirty years ago, I make up for in judgment (I think). These days, I look for cases where I, as Ron Kuby, think that I can really make a difference in outcome—either because of specialized skills, persona, or both. As we sadly know, about 95% of criminal cases are going to turn out the same way regardless of who the lawyer may be—that pesky evidence and those fucking facts are generally outcome determinative.
I have been doing a lot of actual innocence work lately. Last year, I was pleased to win two bitterly-contested hearings in Kings County and Manhattan for two men who had spent 28 years and 25 years in prison, respectively, for crimes they did not commit. I have another hearing set for June in Brooklyn, and will probably be doing a month-long hearing in Nassau County later this year. Of course, there has been no money from any of these, so it is like a really, really expensive hobby. But with a socially useful result. One of my clients, Shabaka Shakur, is working for me as a paralegal, and has founded his own advocacy group, Absolutely Innocent. Hopefully he will win a lot of money and I will work for him. I keep modelling good boss behavior just in case.
At the same time, it was my daughter who brought Professor Abbe Smith’s amazing and provocative article, In Praise of the Guilty Project, to my attention. While I would not presume to paraphrase her brilliant writing, her central thesis is that creating a fetish about actual innocence across the legal landscape has a great capacity to do harm to the core criminal defense function of representing the guilty. The vast, vast majority of people rotting in America’s prisons are not factually innocent—they have been overcriminalized, mistreated, and wrongfully convicted based upon police perjury and prosecutorial misconduct.
I think we are enjoying the perfect climate for de-incarceration and ending mass incarceration in America, and would like to keep working on this until the moment passes. As soon as one of Obama’s clemency prisoners kills some white housewife, it’s going to be game over.
What I will do in the future remains, of course, opaque. If anyone manages to get through this whole thing, they will realize that I stumbled into most of the good things that have happened to me, and I intend to stumble on in hopes of more of the same. We shall see. As my favorite ADA, the redoubtable Matthew Bogdanos, likes to say, “tomorrow is promised to no one.”

[1] Sometimes “shan’t recall.” Two very different ideas conveyed. I prefer “shan’t,” but Liam Clancy singing this brings me to tears.

Cross: Greg Lukianoff, Lighting The First Amendment FIRE On Campus

Mar. 9, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Greg Lukianiff, President of FIRE, the Foundation for Individual Rights in Education.

Q. You went to American University and studied print journalism, which must have looked like a great bet in mid-1990s. Did you go in with the intention of becoming a reporter? What made you decide that journalism was where you wanted to be? By the mid-90s, the internet was becoming a serious thing. Did you realize that print journalism might go the way of the dinosaurs? Did you have a Plan B at the time?

A. First of all, Scott, thanks for asking me to take part in the series. I’m a fan of your defense of due process both on and off campus. I also appreciate you accommodating my schedule. Not only am I on the road for FIRE business the majority of the time now, I also have a 3-month-old (our first!) which takes up the rest of my so-called “free time.”
Now to answer your questions.
I remember when I was in high school saying to my brother that I was torn between doing something related to international relations and going into journalism. Both my parents are foreign-born, and at the time my dad was an interpreter for the Geneva arms convention. He instilled in me a sense that the only real work is international work. At the same time, I wanted to write, and I had tremendous admiration for journalists.
When I told my brother about this dilemma about what to study, he asked me “why not do a double major and study both?” I think I might’ve been a junior in high school, but that decided it— after all, my big bro had said it was a good idea. I would double major in international relations and journalism, and hopefully end up as some kind of international journalist. When I did an online search of which schools offered both of these majors (on a very primitive school computer that was bad even by the standards of 1990), the only school that came up, literally, was American University. It was the only school I visited, and they gave me a great financial aid package, so I went there.
As an undergraduate, I was very interested in the future of electronic journalism and news, particularly after the passage of the absurdly unconstitutional Communications Decency Act of 1996. Becoming an activist who opposed that ludicrous law is the thing that really cemented my decision to go to law school and specialize in First Amendment law. The Communications Decency Act, by the way, was the topic of the first major Supreme Court decision regarding freedom of speech on the Internet, Reno v. ACLU, in 1997.

Q. As a writer/columnist for the American University student newspaper, The Eagle, it’s only natural that you would develop a healthy respect for a free press. Yet, there’s no shortage of reporters today who seem oblivious to the fact that their ability to express their thoughts relies on the First Amendment. Did your interest in the First Amendment arise from your being a student reporter? What made you realize the importance of the right to a free press? When you were writing for the Eagle, what was the climate for free speech and press at American?

A. I came into my undergrad career at American with a healthy respect for freedom of speech. After all, my family had to flee both the Nazis and the Communists, so I have a long family history of valuing freedom of speech. Furthermore, I grew up in a neighborhood with a lot of other first-generation kids, and since we didn’t have a common family culture, the rule was generally that you were allowed to say whatever you wanted, but you would suffer the natural consequences of what you said. In other words, speak your mind, but you might get punched if you’re a jerk. Thankfully, there was much, much more speaking than punching.
Although I already had been raised with this respect for freedom of speech, I, like so many other people, got really excited about freedom of the press and free speech by being a student journalist. My most formative experience was as an editor at the student newspaper watching people come in and use every possible excuse for why I shouldn’t run that article, why that reporter should be fired, why we should censor the paper in general. That experience made me realize that if you’re going to have a free society, you need to have a very strong blanket rule of freedom of speech. People learn very quickly how to use every exception to the rule of free speech to their advantage.
I remain utterly mystified by the fact that some journalists are not very strong on the First Amendment. This seems insane to me, but I’ve run into it time and time again. I think it can only happen when journalists feel so plugged into the power structure that they can’t even imagine the power of censorship being turned on them.
Note that the second article I ever wrote for The Huffington Post, called “New York Times Disappoints,” was about this very topic; I was dumbfounded by Times columnist Joseph Berger’s insistence that the problem of censorship on college campuses really wasn’t that widespread or serious. As I wrote at the time:
I don’t know which is worse: that Berger uses the single example of Vassar College’s handling of a controversial article as a tool to refute the idea that there is a serious censorship problem on campus, or that he chose to praise the outcome of a case in which the school did, in fact, punish a student publication for what would be clearly protected speech outside Vassar’s gates.

Q. Though you started on the East Coast, you chose Stanford for law school. Was there a reason why you decided to go to the left coast? Why law school? Did you decide that reporting wasn’t your thing, or did you realize that the future for print reporting was getting bleak? When you chose law instead of journalism, was it an extension of your interest in the First Amendment or did you just want to be a Stanford law grad and get filthy rich?

A. For years, people had been telling me that “I ought to be a lawyer.” I always took it as an insult. And honestly, I think it was mostly intended as one. I discovered in law school that people were saying that to me because they thought I liked to argue. I then realized that I don’t particularly like to argue just for the hell of it, I just have strong opinions. In fact, law school taught me that people who can’t turn off the drive to argue every point just for the hell of it kind of drive me nuts.
I went to law school specifically to do First Amendment law. I also ended up doing better on the LSAT than expected, so it all kind of came together.
And why Stanford? Well, first of all, because it’s not on the East Coast. Since my parents are both immigrants, I felt this duty to see more of the world, so I really wanted to look beyond the East Coast for school. I also had heard so many horror stories about law school that I placed a lot of importance on the “happiness rankings” released by the Princeton Review back in 1996. Stanford had one of the happiest student bodies of any law school, and it was on the West Coast, so it was my dream school.
I never really had aspirations of being a “filthy rich” Stanford law grad working in a big law firm. Nonprofits have always been more up my alley (hell, I’ve worked in them for something like 90% of my career). Even though my dad had a good job by the time I started college, we were broke for most of my childhood, so the big law firm salaries sounded cool and all, but even a nonprofit salary sounded pretty good to me. And there were so many horror stories about how miserable people were at big law firms.
And, I actually did work at a New York law firm in the summer after my first year of law school, the summer of 1998, and found the law firm experience awful. They made me an offer at the end of the summer for when I graduated in 2000, and I honestly could not understand why. I wasn’t a particularly good summer associate, and I was really open about the fact that I didn’t like the firm in particular or the experience in general. Looking back on it, I think they made me an offer because they thought I was some kind of “badass” who wasn’t afraid to tell them what I thought. That wasn’t the case though— I just really didn’t like them and had no interest in the work.
But the main reason I opted to do nonprofit work is that I really wanted to do First Amendment law, and that is mostly the kind of thing you do at a nonprofit rather than a big firm.

Q. In law school, you “focused” on the First Amendment. What exactly does that mean? Were you that kid who was brilliant in one tiny niche of law, and didn’t care at all about the rest of it? Wasn’t there any other practice area that captured your interest, say, criminal law, perhaps?

A. “Focused” on the First Amendment means I took every single class Stanford offered on the First Amendment, and when I ran out of those, I did six additional independent study credits on the early origins of the prior restraint doctrine through the print licensing system of Tudor England. You know you have found your true calling when you explain to your friends the research you are incredibly excited to do and one of them asks, “My God, who is making you do that?!” Well, I was making me do that.
I loved criminal law my first year. Stanford has a famously tough, but respected Intro to Crim Law professor. His lectures are so abstract and difficult to understand that his class is lovingly referred to as “space law,” but it was one of my favorite classes in my first semester.
The only other major interest of mine in law school was human rights law. We didn’t offer too many classes in it, but I spent my second summer in Prague working for a program that helped refugees during the Kosovo crisis. Tough at times, of course, but I liked it a lot more than being a summer associate.

Q. During law school, you interned for a year at the ACLU. You described yourself back then as a “pro-choice liberal.” What influence did working at the ACLU have on young Greg? There was a time when the ACLU was at the forefront of free speech, such as the Skokie case. Is that still its focus? Some contend that the ACLU has substantially softened its free speech position relative to other positions, like hate speech and discrimination. And are you still the liberal you were back then?

A. FIRE has worked with the ACLU on free speech cases quite a bit over the years. ACLU state chapters and FIRE have worked together to defend a student who was unfairly charged with racial harassment for reading a book at work that celebrated the defeat of the Ku Klux Klan, to challenge an email policy that unduly restricted political expression, to challenge the punishment of a conservative student newspaper for publishing a satirical Christmas carol about affirmative action, to coordinate litigation on behalf of students who were banned from protesting in favor of concealed carry legislation, and to repeal and replace unconstitutional speech code policies. FIRE, the ACLU, and NCAC worked together in 2013 to urge the Kansas Board of Regents to rescind its policy restricting the use of social media by faculty and staff at public colleges and universities across the state. We joined forces again in 2014 to write a joint letter to the University of Colorado Boulder urging the university to reinstate a course that the university had cancelled because it included a lecture on prostitution that made some students “uncomfortable.” And ACLU attorney Carol Sobel helped FIRE win our first victory of our Speech Code Litigation Project (the predecessor to our Stand Up For Speech Litigation Project), successfully challenging two campus speech zone policies.
During law school, I was thrilled to get a position interning at the ACLU of Northern California. I got to work with some great lawyers on some great cases. As for critiquing the ACLU’s general stance on free speech, as a general policy, FIRE doesn’t take on other non-profits unless they have attacked us in some way. I can’t think of anything more wasteful than squabbling between non-profits, particularly when you have successfully partnered together on numerous occasions. As for what other free speech experts are saying, check out Ron Collins’s recent piece on the ACLU’s 2016 workplan. As we are announcing today, Ron and FIRE are working together to start a huge online First Amendment library that will be officially launching this Fall.
As for whether I am still a liberal, I always explain that growing up I was taught that being a liberal meant being aggressively pro-free speech and due process, with a healthy suspicion of power. On those things I have not changed at all, but I do fear the world has changed around me.

Q. After law school, you nabbed a job at Reid & Priest, where you did patent and trademark law, but you only stuck around for a year. What made you leave biglaw? Was patent and trademark law as much fun as it sounds? Was that what you wanted to do with your time, or was that where they told you to sit? Did you get a chance to kick any butt at the Patent and Trademark Office during your brief tenure?

A. The truth is, I was working that job part time while I did two other things: writing a screenplay, and looking for a First Amendment job. Again, with my background, the hourly pay rate for a patent lawyer seemed like a ton of money to me, and it bought me time to find the right job. I love science, so I thought I would enjoy patent law, but it turns out scientific curiosity is murdered through the patenting process. So, I found it mind-numbing. That being said, that year living in San Francisco was a complete blast, and I miss it sometimes.

Q. In 2001, you went to work with FIRE, the Foundation for Individual Rights In Education. Why? How did that get on your radar? Was it just luck that you hooked up with Harvey Silverglate, or was there something happening that made you realize that free speech on campus was in jeopardy? You were legal director for your first five years with FIRE. What were you focused on? What was the reaction to FIRE’s mission on campus?

A. I got the job at FIRE primarily because of one person: Professor Kathleen Sullivan. She was Dean of Stanford Law School at the time. I aced her First Amendment class and got to know her. I obviously really admired her, but she also remembered me. So when Harvey Silverglate went looking for a legal director for FIRE, he asked Kathleen who she would recommend, and she recommended me by name. It remains the greatest compliment I’ve ever received. Harvey contacted me, and I decided to leave my awesome life in San Francisco for my dream job in Philadelphia.
And how was FIRE perceived in those early days? I’m not totally sure. I don’t think people could quite figure out what to make of us. They wanted to label us as conservatives for defending, for example, evangelical Christians, but then got to see us on television defending controversial professors like Sami Al-Arian and Ward Churchill. But, frankly, I think for the first bunch of years people didn’t try to label FIRE too much because we weren’t all that well known.

Q. In 2006, you became president of FIRE. How had free speech on campus changed since you began with FIRE? While in the early years First Amendment concerns might have been viewed as quite liberal, between speech codes, limited free speech areas and demands that hate speech be outlawed on campus, some might say that the First Amendment has grown into a conservative cause, at odds with the social justice agenda. How do you reconcile that? Can one be as empathetic as progressive politics demands, while still being a champion of free speech? What do you tell kids on campus who accuse FIRE of reflecting unwelcome conservative values?

The kind of cases we see at FIRE come in waves, sometimes in unexpected ways. For example, a lot of the post-9/11 cases of the early 2000s were instances where professors or students got in trouble for saying something unpatriotic, but we had even more cases that involved students and faculty who had made comments about how the U.S. should go after the terrorists. We had our first “free speech zone” cases in those years (starting with West Virginia University). We started our first (much smaller) litigation project, which included lawsuits against Shippensburg University, Citrus College, Texas Tech, and SUNY Brockport. We started our Guides to Student Rights on Campus series, and I co-authored the Guide to Free Speech on Campus.
And, yes, it has been strange to watch freedom of speech be dismissed by some on campus as a conservative cause, or FIRE dismissed as a conservative organization. I clearly didn’t get the memo when we decided that freedom of speech was anything other than a universal, even radical, American value. For most of FIRE’s history, when people accused us of leaning one political way or the other, we would just overwhelm them with examples of cases that we took that didn’t fit their narrative about us. We were small and had something to prove, and made sure that we educated almost all critics. At this point in time, there are some critics we don’t even bother with. If someone isn’t taking the time to even go to our website and see the kinds of cases we take and just wants to dismiss us as being politically biased, there isn’t much point in trying to engage them.

Q. As it happened, you were on the Yale campus as a senior was screaming at Housemaster Nicholas Christakis because of his wife, Erika’s, email about Halloween costumes. In fact you were the one who videotaped the “shrieking student.” Do you just randomly hang around the Yale campus in case a viral video opportunity emerges? How did you, of all people, happen to be there? What made you think, “this could make a pretty cool video”? Did you realize at the time what you were seeing, that this video would end up playing a very significant role in campus outsiders realizing just how crazy things had gotten on campus?

A. I wrote an article for The Washington Post about this experience. And, yes, it was just a complete coincidence that I was on campus. Nicholas and Erika Christakis had invited me to talk to their students in the Silliman dorm way back in July 2015; the incidents in those videos took place in November.
When the confrontation in the courtyard took place, I was staying in the dorms and getting ready to give a lecture at those very dorms about freedom of speech that night. I showed up at what turned out to be the tail end of an apparently hour-long confrontation between Nicholas and a crowd of students. There were many other people videotaping it, including the Yale Daily News, which I believe got the entire incident on tape. But I decided to start recording myself because I wanted to make sure that I documented how Nicholas handled himself. It’s been my experience that particularly fraught culture war situations can devolve into a case of “he said/she said”, so you need documentation. Otherwise people may claim, or even possibly misremember, a narrative that fits their existing conclusions. That’s just a simple way of saying I believed that if I didn’t document the confrontation, Nicholas could find himself fired, and I wanted people to see that he conducted himself patiently and responsibly. I was not confident that other students would share their videos of what happened, so I decided to record it myself.
You can tell I am not very good at videotaping by the fact that I did not know to hold my phone in the right orientation. What’s more is I actually thought I had been taping for a good 10 minutes when I realized I had hit the pause, not the record button. If I had gotten that original footage, it would have given better context to the confrontation and shown that it was not just that one student yelling at Nicholas that he was disgusting and should lose his job.
We posted every video I took completely unedited specifically because we knew that if we didn’t, people would accuse us of selectively editing the tape. Nonetheless, a couple of people on Twitter still tried to make that claim. I had no idea the video was going to blow up as much as it did.
I would like to take the opportunity to once again condemn anybody who directed threats or intimidation at the young woman depicted in that video. Threats are not protected speech, nor should they be. Also I thought it was absolutely the wrong decision by The Daily Caller to reveal that student’s name and information in a subsequent article.
The truth is that if the Yale Daily News were to release its video of the entire incident, as I believe they should, you would see that many students were acting in a similar way towards Nicholas. The story should never be about one student, but about the consequences of even mildly critiquing a campus consensus.
We left Yale off FIRE’s list of the 10 worst colleges for freedom of speech this year because eventually, Yale’s dean did come out and support the free speech rights of both Nicholas and Erika. But I fear it was too little, too late. As I’ve said many times, if Erika and Nicholas feel that they have to leave Yale, that would reflect terribly on the environment at Yale. The administration should do everything in its power to make sure those professors stay.

Q. FIRE is deeply involved in protecting and defending free speech rights on campus, and you, together with Jonathan Haidt, wrote a significant article for The Atlantic entitled The Coddling of the American Mind. Unsurprisingly, neither students nor progressive academics responded well to the suggestion that it might not be in students’ best interests to sanitize colleges from “words, ideas, and subjects that might cause discomfort or give offense.” Are we doomed? Is there any going back to the days when students weren’t constantly offended? Are they too fragile to handle thoughts, or is this a political fashion trend that will disappear when the new hemlines come out? How much damage are they doing, and will be done, before the pendulum swings back?

A. Woof. For your final question, you asked me a doozy. I revealed what I think about the future of freedom of speech in a short book I wrote called Freedom From Speech. Even though I’m temperamentally an optimist, I’m less optimistic when it comes to the future of free speech. Simply, I believe the more comfortable and affluent society gets, the more people will be able to tailor their surroundings and choose to only associate with people they agree with.
Therefore, a side effect of prosperity and mobility is that people get less accustomed to being put in a position where they need to hear the other side out. As a result, people lose the ability to productively disagree, and they lose perspective about how horrible people can be and how many truly awful things happen every day. My dad grew up in Yugoslavia, so my childhood stories were filled with lots of horrors about villages that aren’t there anymore, bombings, etc. Maybe somewhat counter-intuitively, this historical perspective actually made me happier with the world I lived in, because I had a strong sense of how bad history can actually be.
I think we are not teaching students history well enough, and I think we are teaching them all the wrong lessons about how to engage with one another. We should be teaching students how to rationally examine their own thoughts (which was the theme of the Atlantic article). Campuses are not doing a good job of teaching students that it is a valuable experience to have people passionately disagree with you and challenge your ideas.
My sad prognosis is that I think threats to freedom of speech are going to increase, not just as other things are improving, but because other things are improving. We are going to have to be more creative about ways to train future generations to seek out constructive disagreement and to challenge their own ideas. Frankly, right now colleges are doing a lousy job of that.

Cross: Jon Rapping, Doing Everything He Can To Keep Gideon’s Promise

Mar. 2, 2016 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Jon Rapping, founder and President of Gideon’s Promise, Professor at John Marshall Law School and 2014 MacArthur “Genius.”

Q. As the son of a Pittsburgh community activist, you were weaned on protests in the ’60s. You went to Chicago, where you received a BA cum laude in economics, then Princeton for a masters, earning some sterling credentials that would have given you entree into any shop on Wall Street and the good life. Yet, you went and screwed it all up by going to law school. Why? What’s wrong with earning a good living, buying fancy stuff, talking up the virtues of Goldman Sachs at cocktail parties?

A. I was raised by two parents who were deeply affected by the issues that gave rise to the civil rights, women’s, and anti-war movements. Both were academics. My mother taught, wrote, and was a political activist. She continues to be very politically conscious. My father was a well-known radical economist in those years, although he became a bit more conservative in his older years before he died in 1991. I understood from a very young age how those in power often oppressed those without power in an effort to maintain the status quo. I was raised to be skeptical of authority and to understand that having a voice carries with it the obligation to use it to speak out against injustice. I was also raised to believe that finding purpose in one’s work is essential to being fulfilled. So taking on a career that would allow me to wake up every day and fight for justice was ingrained in me.
But I also understood that those in power are inclined to only listen to those who have credentials they respect. So I went to the most respected schools that would have me (and I was rejected from more schools than I was accepted to). And while I do not embrace the view that those who attend higher ranked schools are any better able to make an important contribution to the world (in fact, if you are not careful, these “better” schools are more likely to strip from you the passion necessary to make such a contribution), I do understand that credentials can give one a voice. So I attended Chicago and Princeton – before deciding to attend law school — as I figured out how to best position myself to have an impactful and purposeful career.
Many of my classmates at these schools graduated and made lots of money. And I do not think there is anything wrong with earning a good living. The question is, “what is the cost of pursuing those things?” If the cost is giving up personal and professional fulfillment, it is not worth it. And I was raised to understand that personal and professional fulfillment had to be intertwined with the purpose of your life’s work.
There is a video clip I often use when speaking that shows people on the street being asked, “When is the last time you felt needed?” Most struggle to answer that question. I often share this video when I speak to young people who are still trying to figure out what to do with their life. I tell them that nothing could be sadder than being unable to answer that question. I tell them that while I spent a few years living on rice and beans, Ramen noodles, and macaroni and cheese as I struggled to pay off my student loans, I have never had a day in my career as a lawyer when I was not fulfilled and had a strong sense of purpose. There was never a day when I had to think back more than 24 hours to answer that question. I tell them that I too want to live a comfortable life; that I like nice clothes and good food. But I also tell them that there is no amount of money one could pay me to not be able to answer that question. I warn them to make sure they do not find themselves at the age of 50 or 60 without an answer to that question or they will regret the career path they chose.

Q. Despite a diploma with the name of that notorious racist president, you chose to head down to D.C. and attend law school at George Washington. What made you want to go to law school? Did you go in with a plan? Were you interested in criminal law from the outset, or did it come from your internship with the Public Defender Services? What about that experience made you say, this is where I belong? Would it have been any different if you’d got an internship with the prosecution?

A. You certainly pack a lot into each question, Scott. [Ed. Note: Yup.] To address the first statement, which is not really a question, I have never gone to a school because the diploma or name impressed me. In fact, I have no idea where any of my diplomas are. No diploma has ever hung on my office wall. The walls to my office have always been lined with thank you cards from clients, honors from people and organizations I admire, and inspirational quotes. The degree is not an end; it is a means to an end that I continue to work towards.
I wanted to be a lawyer from a young age because as a kid a number of lawyers were family friends. They would represent protesters and other people whom I saw as targets of a government with tyrannical tendencies. I loved movies about outlaws: Butch Cassidy and the Sundance Kid and The Godfather, for example. I admired those who were outside the system.
As I grew older I had many friends who were in trouble with the law. These were working class kids who did not have many of the opportunities that were afforded more privileged kids, including a kid like me with two academic parents. I always went to mixed income schools and understood at a young age that kids were tracked by race and class. The kids who were clearly destined for college were mostly white and upper-middle class. Working class kids didn’t talk about college. Most of their parents did not go to college. I understood that when these kids got into trouble, the quality of the lawyer they had determined how they would be treated in the system. I wanted to be a criminal defense lawyer because I saw that as the best way to fight back against a system that targeted marginalized populations.
But to be honest, after four years of college, I became disheartened. People convinced me that if I went to law school I would incur incredible debt and wind up taking a job I hated just to make enough to pay off my student loans. I worried about that so I decided to work for a while to figure out what to do next. My father was an economist, who thought a lot about the connection between class and economic policy. My admiration for my father had led me to major in economics, and I decided to see if policy work might be fulfilling. I worked at the Federal Reserve Board for two years focusing on the impact of fiscal policy. I then got a scholarship to attend the Woodrow Wilson School and study public affairs. But after graduate school, I realized policy work would not be purposeful for me. I wanted to work with people. My mother pushed me to consider law school. She always thought I was born to be a lawyer in the mold of the great activist lawyers. So I did.
I knew I wanted to be a defense lawyer but I did not consider public defense. I had an image of public defenders as overworked, uncaring, and bumbling. It is the image that popular culture promotes. It was reinforced in what I saw when my high school friends had public defenders. I wanted to be more of a William Kunstler or Clarence Darrow.
But I then spent the summer after my first year of law school working as an investigator at the DC Public Defender Service. I met so many young, passionate public defenders. They were smart, talented, and dedicated. They were the best lawyers I had ever met. That summer convinced me that public defense was my calling. I spent the next two years volunteering at PDS. I was rarely at the law school. My legal education came through my work with these public defenders. I learned lessons that were never taught in law school. Law school teaches that the law is about rules and doctrine. That success requires that we learn to “think like a lawyer.” But thinking like a lawyer left no room for caring. I understood that law school was the start of a process of seeing people as cases. a dehumanizing process that drives lawyers to forget about the people behind the pages of a casebook. These PDS lawyers showed me how to be a lawyer without losing sight of the humanity of those impacted by the system. In fact, that humanity was front and center of everything they did.
Of course, an internship at a prosecutor’s office would have been different. As my friend, Paul Butler describes in his book, Let’s Get Free: A Hip-Hop Theory of Justice, prosecutors tend to measure success by conviction rates. There is incredible institutional pressure to do so. It becomes easier to play that game when you convince yourself that the people you prosecute are no more than they crimes with which they are charged. As Paul describes, good people can be shaped by a prosecutorial culture that depends on embracing a narrative that sees poor people as dangerous – as needing to be prosecuted and controlled. What I got from PDS was the opposite: a lesson in the importance of seeing the humanity of every person, even those who have made mistakes. That justice depends on never losing sight of that humanity.

Q. You worked with the D.C. Public Defender during law school, and for real afterward, from 1995 through 2004. How did your first trial go? Were you like so many baby lawyers who thought they knew it all, until the first time you heard a one-word verdict? Looking back now at baby lawyer Rapping, what kind of job did you do as a newly-minted PD?

A. It is funny that you characterize so many lawyers as thinking they know it all. I suppose that is true. But I have been fortunate to surround myself with public defenders who, while incredibly talented and committed, continually question whether they can give each client the representation they deserve. They understand the magnitude of their responsibility and that becomes humbling…and terrifying. I always felt that way. In fact, I heard that one word verdict after my first trial. And I nearly quit as a result. I thought I was not good enough. I was filled with self-doubt.
I was co-counsel in the case of a fifteen-year-old boy who accidentally killed his best friend as they played with a gun. The boy was grief-stricken over the role he played in this tragic accident. He had never been in trouble before. He was a good student with a promising future. I came to really love this young man. He was convicted and sent to Oak Hill, a notoriously awful detention facility for juveniles outside DC. He would be there until he turned 21. His future was destroyed. All the hope for this young man gone. I was devastated.
After the verdict, I went in my office, turned out the light, sat at my desk, and cried. I felt inadequate. I wanted to quit. But fortunately I was surrounded by supportive colleagues who helped me understand that sometimes injustice occurs despite our best efforts. It happens because the system is designed to treat poor people unjustly. That we must learn to forgive ourselves for the things that are beyond our control. This was my first lesson that would become the foundation of the work I now do, that one cannot continue to carry on the fight against injustice without a supportive community reminding them of why they do the work. It is too easy to lose sight of one’s purpose – to become beaten down, jaded, or cynical – without support.
But most importantly, I began to understand the importance of being by the side of another person during their most trying times. That even when you can’t achieve the result you desire, there is incredible value in being there for another at their time of need. Too many people go through life with no one who cares about them, and they are processed through a system that reinforces the idea that no one cares. Simply refusing to be part of that type of system, and insisting on resisting it, has intrinsic value.
So, looking back on a young Jon Rapping, I probably did not appreciate the value I brought to the job. I gauged my success on my technical skills. I look back now and realize that what made me and my colleagues special was less about our technical expertise, and more about our dedication to those we served, and our refusal to abandon our passion for justice. We may not have changed the system, but we refused to let the system change us. That is success. Law school never forces you to think about how hard it is to go through the legal profession unscathed by the injustice.

Q. A lot of people who do public defense want nothing more than to do anything but public defense. They hate the workload, they hate the money, they hate the fact that clients don’t take them seriously. Then there are some who thrive on the work. So which one was Jon Rapping? Were there times as a PD that you wanted out? Were there clients you dreaded seeing? What was the worst insult you ever received during your time as a PD in the trenches?

A. Those public defenders who want to get out, need to get out. Their clients deserve someone who continues to be passionate and committed to the work. There are those who get into the work for reasons that are not about the client – they want trial experience or they could not find another job – and that is shameful. Low income people with serious legal troubles deserve a committed advocate. They are not there for practice. They are not the warm-up for one’s next career. Anyone who sees low-income clients as less worthy of a skilled, committed, inspired attorney than their wealthier counterparts should not be a public defender.
Then there are those who get into this work for the right reasons but have the passion beaten out of them in a system that hates poor people and disrespects their lawyers. Every public defender experiences burnout. It is easy to become jaded. But if the pressure drives any lawyer to hate the work or lose respect for the clients, it is time to get out. I do not blame any person who becomes cynical and jaded. The system is designed to do that to the best of us. But we owe it to our clients to recognize when we are no longer able to give them the lawyer they deserve.
Of course I have felt like quitting. I described one such experience above. It is hard watching terrible things happen to people you come to care about deeply. It is hard to not feel inadequate and responsible. That is why a strong and supportive community is critical to sustain oneself in this work.
I would not say there were clients I dreaded seeing. However, I certainly had clients who were more difficult. People who have to rely on public defenders often begin with deep suspicions of public defenders. There is a sense that we are part of the system and that we are not really going to fight for them. Unlike private lawyers, public defenders often have to invest a lot of time developing a relationship that allows the lawyer and client to work together as a team. It is amazing how much trust comes along with a client who chooses their lawyer and pays twenty thousand dollars for the service. Public defenders do not have that luxury. Developing client relations becomes an especially important skill. Some clients take longer to build a strong relationship with. Some have had bad experiences with public defenders in the past and are especially suspicious. Some have mental health issues that make the process more challenging. For any number of reasons, I have certainly had my share of clients who took longer to build a rapport with.
When I have been especially stressed out and emotionally drained, I have been less enthusiastic about dealing with a more challenging client. We all have times when we are short on patience. In those moments, I have felt irritated with some challenging clients. That is human nature. But I always have been able to step back and appreciate that this is a person who is at the lowest point in their life. They have no reason to trust me. They may have psychological or emotional issues. When I took the time to step back, I understood the challenge is not personal. With time to reflect, I have always been able to recapture my resolve. I always felt like I wanted to be on the side of that client in this battle.
As for the worst insult…it never came from a client. It came from those outside the system who had little respect for the important work of public defenders. When I started at PDS, our trial chief had a button that said “Don’t tell my mother I am a public defender, she thinks I play piano in a whore house.” Every public defender understands where that joke comes from. So, when you realize there is no nobler work in the legal profession than public defense, the disrespect can be quite insulting.

Q. Clearly, you found a purpose in public defense that many others don’t. What made that happen? Was there one experience in your career that made you realize how critical public defense is to the poor? Are you a “true believer,” that public defenders are the heroes in the courtroom, or is it just a job, albeit a necessary one, needed to give the appearance of balance?

A. I absolutely believe public defenders are heroes, not only in the courtroom, but in the criminal justice system. As a public defender in Washington, D.C., I felt tremendous purpose. I got to know men and women whom prosecutors and judges treated in ways we would never allow our loved ones to be treated. But these professionals did not see these people as they viewed the folks who were most important in their lives. To them, these folks were expendable. But I got to know my clients in a different way. I got to know them as mothers and fathers; sons and daughters; shopkeepers and bus drivers. I knew them as people who struggled with incredible challenges in life; challenges that would defeat the strongest of us. They were people with stories. Deeply human people worthy of respect the system would not give them. Fighting for them, and against a system that devalued their lives gave me purpose.
But I also understood that as a public defender I was able to give every client the representation our Constitution guarantees. In those early days, I saw my role as solely fighting for individual clients in individual cases. I did not see myself as a systems reformer.
But for the past eleven years, I have worked in the Deep South and with public defenders in some of the most broken systems in the nation. These are systems in desperate need of reform. And I now realize that the public defenders I work with not only stand up for individual clients in individual cases but that they are also collectively capable of driving systemic reform. I now see public defenders as civil rights warriors on the front lines of today’s greatest civil rights struggle: criminal justice.
Conscientious public defenders in the system wear two hats: they fight for individual clients, regardless of who they are or what they are accused of doing, and they help to challenge a system that punishes people based on class and race. Collectively these defenders challenge the assumptions of every person in the system; assumptions about poor people and how they deserve to be treated. Collectively, public defenders make up an army that can awake us from our collective unconsciousness. They can change a criminal justice narrative that accepts unequal justice.

Q. In 2007, you and your wife, Ilham, started the Southern Public Defender Training Center, later renamed Gideon’s Promise, with the help of a grant from the Soros Open Society Foundation. What was the need you sought to fill? You had trained PDs in D.C. and Georgia. Where was the training gap? Why were public defenders not getting the training they needed to fulfill their mission? What could they get from Gideon’s Promise that they weren’t getting elsewhere?

A. To understand how my wife, Illy, and I got into this, I need to tell you a bit about her. Illy is not a lawyer. She was trained as an educator. She did Teach for America and taught in urban schools in Washington DC and Atlanta. Illy comes from Buffalo. Her father went to prison when she was only five. He was locked up for allegations from several years earlier. By the time he went to prison, he had converted to Islam, started a business, married, and had a family. When he got locked up, he had three girls and a boy on the way. But his lawyer never told his story. He did not have anyone to fight for him. Illy was the oldest so she helped raise her siblings. She brought her baby brother with her to college at Cornell to help him escape the influences back home. But she could not overcome his growing up without a father. Her brother ended up in prison. Every man in her life ended up in prison. None ever had a lawyer who cared. Illy hated public defenders and became a teacher to try to interrupt the cradle to prison pipeline.
But as a teacher she saw far too many children fall through the cracks. She could not compensate for all the challenges these children brought with them to school every day. It was inevitable that many of her kids would end up in the criminal justice system. But through my work at PDS, she also met public defenders for the first time who were committed. She gained a renewed sense of faith in the power of a lawyer who is there at the final stage before the cradle to prison pipeline is completed. She appreciated the importance of fighting to interrupt the process at that back end, and saw that with good lawyers it could be done. This is an important back story to understand why a woman who devoted her career to teaching would decide to build an organization designed to empower and support public defenders.
So this helps explain why, when I was invited to leave PDS to join the effort to help build a new, statewide public defender system in Georgia, Illy agreed. We had recently married, bought a home, and had a daughter. Life in DC was perfect. So it took a partner committed to public defense to agree to pick up and move.
I spent two years helping to build the public defender system in Georgia. Then, after Hurricane Katrina hit, I was invited to help rebuild the public defender office in New Orleans. I spent a year in New Orleans helping with that effort. In the meantime I did some work in Alabama and Mississippi. My experience in the South was my introduction to public defense outside Washington DC. I saw what most public defenders have to deal with every day. It was my introduction to systems that had come to accept an embarrassingly low standard of justice for poor people. And sadly these systems beat down good public defenders. I met so many young, passionate defenders who came to the work for all the right reasons; but within a couple years the system would beat the passion out of them. Many would be forced to either quit or to become resigned to the status quo. These were great lawyers who desperately needed support. There was no community for them like what I took for granted at PDS.
So in 2007, I got a grant from Soros to start SPDTC (the precursor to Gideon’s Promise). The idea was to not only provide public defenders training, but to also give them mentorship and support to resist the pressures to process poor people. It was designed to become a community that would nurture and inspire these lawyers as they fought to raise the standard of representation for their clients immediately and to develop into the leaders of the effort to reform criminal justice in the South.
Illy agreed to take a year off to help me build the organization. It started as a small start-up in our living room. Eleven years later, Illy has not returned to teaching. She is now the Executive Director of Gideon’s Promise, an organization that has blossomed into a multi-program model to transform criminal justice in some of the nation’s most broken systems.
At the heart of this model is training, but it is not merely a “training program.” Training is one tool, along with mentorship, and community building used to drive a movement to change the existing culture of criminal justice. It starts by changing the culture that exists in public defender offices as we catalyze these lawyers to drive change in the systems where they practice.
Don’t get me wrong…I believe Gideon’s Promise provides the best public defender training available. There are many great training programs for lawyers, but Gideon’s Promise is specifically for public defenders. It combines trial skills, with pretrial advocacy, with ethics, and – most importantly – with a heavy dose of values-based lessons. These lawyers learn skills to represent clients well in individual cases as well as strategies to resist systemic pressures to abandon their ideals.
What these lawyers get from Gideon’s Promise that they cannot get anywhere else is the support and inspiration needed to do this work, combined with first rate lawyering skills.
A short story helps illustrate this. I was teaching at a leadership and management program a few years ago. Each public defender leader brought a “management challenge” to discuss. One said his challenge was that he had a great lawyer who “hated his clients.” What he meant was he had a lawyer who possessed very good trial skills who hated his clients. But can this be a good lawyer? We teach that caring for the client is at the center of being a good lawyer. As long as one “hates” their clients they can’t be a good lawyer. They can have good trial skills, but that is different. Our profession often teaches that lawyering is something done independently of those we represent. As if the client – especially the poor client – is just the case, or a vehicle for the lawyer to do his or her thing. We teach that the work is all about the client and that the skills are simply a set of tools necessary to fulfill a larger mission. This is a critical perspective that is lost in overwhelmed systems designed to deal with poor people.

Q. When Gideon’s Promise opened its doors, what was the reaction? Were you seen as a resource for public defenders who weren’t getting the training they needed, or competition for local offices who thought you might be stepping on their toes? You received some pretty sweet awards, like the Lincoln Leadership Award from the Kentucky Department of Public Advocacy, but were you every public defender’s darling? What sort of negative reaction came your way?

A. As you guess, the reaction was mixed. There was suspicion by some. It can be hard for those who have been working within a system for a long time to hear an effort to transform a system as anything other than a criticism of them personally. So there were certainly lawyers who felt like we were pointing a finger at them. But over time, I think many of those lawyers have come to embrace the idea that there is no shame in admitting that the systemic culture is so strong that it shapes even the best of us. Acknowledging that we may have adopted practices that are inconsistent with who we want to be as lawyers is not a personal attack. It is about the system. The best of us own where we can be better and work at it.
In fact, as much as I love my colleagues from PDS, I have a level of admiration for those lawyers who came to systems that were dysfunctional and made a commitment to help in these broken systems. While they cannot work in these systems without being affected, they are the ones fighting where the need is greatest.
Over the years we have developed a growing community of defenders who embrace this perspective. They recognize that the system is broken and that without support it will break them. They embrace a community that helps them continue to fight in these systems while getting the support they need to fight to maintain their values.
There remain some defenders, mostly older lawyers who are very resistant to change, who are critical of our model. They have learned to work within the current system, and have come to believe it works well. But I find that every year those who embrace our approach grows.
We started with sixteen lawyers from two offices and now have worked with over 400 lawyers from across sixteen states. That does not include our first statewide partnership in Maryland where we have trained and supported over 500 defenders and many other non-legal staff.
Each year, we expose new offices to our approach through our annual Trainer Development Program. It is inspiring as defenders realize this is a community of like-minded advocates who are working to maintain the passion that brought us into this work in the first place.

Q. Once Gideon’s Promise really got going, how did your program develop and expand? The perpetual complaint of almost every public defenders’ office is that they lack the funds to hire sufficient staff to fill the need. And if there’s no money for them, there surely isn’t extra cash floating around for you to train them. How did you keep Gideon’s Promise afloat? Was it a struggle? Will there ever come a time when public defense, including training, isn’t the poor stepchild of the legal system?

A. As we continued to build partnerships with offices we expanded to meet new needs. We started with a three-year “core” program for new lawyers, providing ongoing training and support. We then added a Graduate Program to teach our graduates to become mentors and trainers. We added a Leadership program to work with the chief defenders and supervisors of our partner offices as they develop into better leaders and advocates for reform. We added a Trainer Development Program to both ensure all our trainers knew our model and taught it consistently and to teach others our model to take back to their programs. And we added a law clerk program to recruit law students to offices in places with the greatest need.
But, as you recognize, resources is an issue…a big issue. It is not cheap to provide the ongoing training and support these lawyers need as they fight the hardest battles in the most difficult places. And while our offices contribute what they can, the vast majority of the cost comes from our fundraising efforts. I spend ninety percent of my time trying to raise resources. We are constantly looking for grant opportunities and working to build our private donor base. All of our faculty are volunteers. And unlike other training faculty, we do not only ask them to come present for an hour or two. Being a faculty member for Gideon’s Promise is a huge commitment. You must go through four days of training, on your dime. You then commit to teaching and serving as a mentor. You commit to being an ambassador and helping to rally support and resources for the effort. It is a commitment to joining a movement.
But increasingly our community is galvanizing folks from within and outside the legal community to support our work. Interest about our work is piqued. Our lawyers are challenging assumptions in the courtrooms, in community meetings, through national presentations, through social media, and through a variety of channels. These advocates are raising awareness of the importance of this struggle and inspiring people to rethink the critical role of public defenders in the larger effort to reform criminal justice.
We are influencing law schools (we have a law school partnership project through which we work with twenty law schools across the nation), law firms, and non-legal supporters. I think that through this advocacy, we are raising awareness of the importance of public defense and the need to support it.
I am an optimist, but I do believe that there will be a day when public defense is given the respect in our profession that it deserves. When that happens it will be because a movement of public defenders has reshaped the controlling narrative about what justice means and the important role that advocates for the poor play in this rewritten story.

Q. You were the recipient of a 2014 MacArthur Foundation “Genius” grant, which is pretty damn cool. What did that do for you? What did that do for Gideon’s Promise? Is it true there’s a secret Genius handshake? You’ve also been teaching law school at John Marshall (and an occasional visit to Harvard), where you’re now a full professor. Would you rather teach trench lawyers how to save a poor defendant’s life or the young, idealistic and entitled who could easily turn to the dark side and ignore your good counsel? Do you ever wonder how many of these well-intended inchoate lawyers have what it takes to stand beside an indigent defendant?

A. The MacArthur Fellowship was pretty cool. Primarily because it validates what we have been discussing in this interview, that the work of public defenders is important and that they play a critical role in reforming our criminal justice system. There is still a lot of work to do to get public defenders the respect they deserve. Too many of our allies still leave public defenders out of national conversations about criminal justice reform. Reformers still have a blind spot when it comes to these lawyers. A narrative that casts public defenders as powerless has sadly affected even progressive criminal justice reformers and funders. But public defenders are mobilizing to change that. I think the MacArthur recognition helps in that effort – not just for Gideon’s Promise, but for indigent defense. It lends support to the idea that change can come from a community of public defenders.
I see my law school teaching as integrally connected to the mission of Gideon’s Promise because ultimately Gideon’s Promise is about culture change. And it recognizes that culture changes when those in an organization, or system, transform the value set that drives their attitudes and behaviors. How we shape legal professionals to understand justice and to see the poor begins in law school. Law schools are where the values-shaping process begins. And law schools have largely abdicated their responsibility to drive equal justice. I see teaching as a way to begin imparting important values to students who will work in the criminal justice arena. At John Marshall we launched the Honors Program in Criminal Justice, which I direct, to weave this “values and ethics driven teaching” into a criminal justice curriculum designed for students who will enter this field.
I love teaching law school, but only because, through John Marshall, I have been able to marry it to the critical work I do in the field. I know some law teachers who believe that if they just teach students to be good prosecutors or judges they can make a difference. I think this ignores the power of culture. Even the best students will be shaped by the culture of the organization where they work. Sending good students into bad cultures does not change culture. It changes good students. So we must also work to transform the culture in the organizations that administer justice. Through Gideon’s Promise, we have a model to do so. It is a model that can be applied to prosecutors, judges, police, and any criminal justice professional.
But of course, I am most fulfilled when I am working with public defenders. No question. These are the folks who are committed to doing the most important work and struggling to earn to do it right. They are admirable and inspirational. I know a small group of my law students will end up in this fight. But if law schools were more committed to grooming students to consider purposeful careers, we would see more students entering the field and making a difference.

Q. As no discussion of public defense can ignore money, what about Orleans Parish Chief Public Defender Derwyn Bunton’s decision to draw a line and refuse to take on more cases than his office can handle? There is a huge dispute within the public defense community as to whether it’s better to take all defendants and do one’s best, even if the best falls short of effective assistance. Is Bunton right, that there comes a time when you have to stop feeding the machine as if everything is going fine? Should the system come crashing down or should it continue to limp along, giving the appearance of representation if not the substance? And what about the ACLU’s lawsuit against Bunton, to force him to take on cases his office can’t competently handle? Where is the line drawn?

A. I absolutely agree with Derwyn’s decision. In every field where we deal with lives, we recognize the need to know one’s limits. If an airline agreed to take more passengers than an airplane could safely handle, jeopardizing the lives of all aboard, we would close the airline and prosecute the CEO. We would never support a doctor’s decision to take additional patients if it meant the doctor could not adequately care for those already in their charge. Why do we expect lawyers to do less?
I understand and admire those public defenders who do not want to turn anyone away. But in the long run, if public defenders continue to agree to provide a lower standard of representation, because of crushing caseloads, they contribute to setting a lower expectation for what poor people deserve. Public defender offices set the standard for what kind of representation we afford the poor. An office that insists on providing the highest standard of representation – a standard we would expect and want for our loved ones – is the only way to begin to raise the expectation of what justice means for the poor.
This comes at a cost. It means there will be people in the short run who do not have lawyers. As public defenders we feel the need to take on this injustice. But in doing so we are lowering the standard of care that we can provide those who are already assigned to us. If we are to treat poor people the way we treat those with money, we must not take on more than we can handle.
Imagine if a person you loved hired a lawyer and that lawyer told you they could not give your loved one the representation they deserve because they want to take on twice as many cases than they did last year. You would find a new lawyer. Public defenders must begin to insist on the same expectations for low income people.
But I also understand that it is unrealistic to simply do that tomorrow. Every system has unique challenges and political realities. Public defenders must devise strategies, tailored to their realities, to begin to change expectations.
As for the ACLU’s lawsuit in New Orleans, while they are suing Derwyn’s office, and the state Board, for its inability to provide poor people the representation the Constitution demands, the ACLU is not saying Derwyn should just keep taking cases he does not have the resources to handle. It is saying that Louisiana is failing to live up to its constitutional mandate. Because the State is not funding Derwyn’s office, Derwyn is forced to decline cases. Poor people are deprived of their Sixth Amendment right to counsel. The suit against Derwyn’s office is an effort to force the state to provide the resources these defenders need to represent these clients.
At the end of the day, New Orleans is another example of how public defenders drive systemic reform; how they are the engine necessary to transform the system. The public defenders in New Orleans have refused to continue to go along with injustice as had been happening for years before Katrina. They shined a light on what has been happening to poor people in that city. And now there is momentum to achieve justice. Without public defenders who refused to accept the status quo, nothing would change in New Orleans. Without public defenders across the nation refusing to accept injustice, meaningful criminal justice reform will not happen.

Main image via Ben Dashwood