When the Supremes decided in Maryland v. Shatzer that 14 days was long enough for a defendant’s invocation of right to counsel to shield him from the police, was this what they had in mind?  Via the Arizona Republic :

Last year, Apache County Attorney Michael Whiting hired Brian Hounshell as a criminal investigator despite the fact that Hounshell, the former county sheriff, had been convicted of felony theft in a public corruption case. Earlier this year, Hounshell visited the suspect in jail and, without notifying the man’s attorney, pressed him to plead guilty or face a possible death penalty.

Hounshell had been the county sheriff until he was convicted of fraud, theft and misuse of funds.  Whiting decided that this would make the former sheriff the perfect choice to handle “complex” matters for him.  After all, who knows felons better than a member of the club?

Whiting decided to send Hounshell on a mission of mercy, to go visit accused murderer, 23 year-old Joseph Roberts, in jail.

In February, before a preliminary hearing, Hounshell visited Roberts in jail without notifying the defense lawyer. According to a transcript of the conversation, Hounshell urged Roberts to waive his rights and accept a plea offer for 25 years in prison. Otherwise, Hounshell warned, “It will be a tougher road for you. . . . If you take the risk of a life sentence or lethal injection . . . that is something you’ll have to deal with.”

Hounshell also advised the inmate, “We haven’t charged your wife yet. So that’s another situation you may be dealing with at a later date.”

According to Hounshell, he wasn’t there to coerce Roberts or undermine his right to counsel.  He was just trying to help.

During a hearing the next day, the White Mountain Independent reported that Hounshell claimed he had visited Roberts out of sympathy, not to intimidate the defendant.

“I intended to help him. That’s what I wanted,” Hounshell said.

And what would have made County Attorney Whiting believe that he had the authority to send former sheriff Hounshell into the jail to speak with a represented defendant?

In an interview this week, Whiting said that a U.S. Supreme Court ruling last year allows police in some circumstances to privately interview criminal defendants who are represented by counsel. Based on that, Whiting said, he instructed Hounshell to deliver a jailhouse message to Roberts.

Whiting said he was concerned that defense attorney David J. Martin of Lakeside had not fully advised Roberts of the plea offer. Martin did not return phone calls.

No wonder.  When the prosecutor doesn’t get a timely return call from defense counsel, there’s clearly a good reason to believe that he’s got to send his top man into the jail to protect the defendant from making a bad choice.  And of course, now that the Supremes say it’s perfectly fine to ignore the 6th Amendment, what could possibly be wrong about it?

Superior Court Judge Donna Grimsley, however, didn’t bite on the mission of mercy argument.  Not only did she hold that this was a flagrant violation of Roberts’ right to counsel, but she disqualified Whiting’s office from prosecuting Roberts.  The case will be handled by an outside prosecutor.

The County Attorney’s claim, that the Supreme Court’s decision (which I presume to be Shatzer though the report doesn’t identify the case upon which Whiting claims to rely) permits the prosecution to circumvent defense counsel and go directly to the defendant is, in a sense, absurd.  But then, it requires a fairly nuanced reading to differentiate between the purpose for which the cops can speak directly to a defendant while ignoring his invocation of right to counsel.

What can’t be undone, regardless of the strong decision by Judge Grimsley, is the damage caused by the content of the “discussion” between Hounshell and Roberts.  This could have significantly undermined the defendant’s confidence in his lawyer and his ability to defend against the charges. 

The judge can disqualify the prosecutor, but she can’t clear the coercive nature of the communications from his head.  While it doesn’t appear that the defendant has lost the will to fight in this case, at least not from the article, it would be almost impossible for Roberts to not be influenced by Hounshell’s statements, particularly about his wife being charged. 

According to the story, a state bar complaint has been filed against County Attorney Whiting, though it doesn’t state whether it’s by Judge Grimsley or someone else.  Hopefully, this complaint will be taken seriously and significant sanctions will be imposed for this facile attempt to claim the Supreme Court’s decision permits the prosecution to simply circumvent the criminal defense lawyer and screw with the defendant. 

But I can’t help but wonder, with the Supremes doing as much as possible to undermine the limited safeguards available, whether situations like this will give them pause to believe that the preservation of a defendant’s constitutional rights are safe when left in the hands of prosecutors.

H/T Packratt at Injustice Everywhere

Brian Tannebaum posts that Harper Lee’s novel, To Kill A Mockingbird, turns 50 today.  The lead character, as every criminal defense lawyer knows, is Atticus Finch.  He is what we aspire to be.  If you need more information about the book, then you probably shouldn’t be reading Simple Justice.  It’s not for you.

Many lawyers have tried to model themselves after Atticus Finch.  You won’t find a better role model.  Even in his imperfections, he’s perfect. 

Some lawyers have tried to wrap themselves up in Atticus Finch, as if they are the modern day, real life equivalent.  They are either lying to themselves or lying to the rest of us. 

To use Atticus Finch, the embodiment of integrity, dedication and humility, in a way that even hints of personal gain is wrong.  It contradicts what the character stands for.  It demeans the character and the qualities.  It’s just terribly wrong.

There are other lawyers, living lawyers, real lawyers, who are certainly worthy of our admiration and serve as great role models.  But there is no character that compares with Atticus Finch when it comes to what a criminal defense lawyer should aspire to be.

Thank you, Harper Lee, for creating the character that has guided so many.  Happy 50th birthday, To Kill A Mockingbird.

The past week in Atlanta brought great successes and no shortage of failures.  It was a long week, filled with stress.  The time to board the flight home brought enormous relief.  It was over.

The barely comprehensible announcement was that we had to board the Delta flight quickly or we would miss the “curfew” at LaGuardia airport and be forced to land elsewhere.  This was a scheduled flight, making the announcement inexplicable.  Did Delta schedule a flight to an airport that wouldn’t let its plane land?  Whatever, we all boarded quickly, no time to get an explanation.

Aboard, we made our way to our row to find a gentleman in my seat.  He was a gentleman, quite pleasant and cooperative.  He was also monumentally large.  When he realized that he had the window seat, he reluctantly moved inward.  He had to life up the arm rests to slide across.  When he arrived in his designated seat, he tried to lower the armrest.  He couldn’t.  Not a chance in the world was his body going to squeeze into the allotted space.

He tried, and I appreciated that.  The flight attendant announced that we had two minutes to depart or we wouldn’t make the curfew window.  There was no time for discussion, as we all wanted to land in the city and state of New York.  Cleveland would not have been helpful.

The passenger in seat A tried his best to remain in seat A.  His physique would not allow it.  He had seat A and half of seat B, and that was be sheer force of will.  Had he breathed out and relaxed, seat B would have disappeared from view.

It’s not that I’m unsympathetic about this issue. It’s not that our fellow passenger was difficult about it.  It’s that one person, having taken up more than his share, meant one person got less than his share.

Could the airlines do better?  Of course.  But in light of the fact that they refuse to accommodate the fact that their ever-decreasing seat size is in direct conflict with the ever-increasing girth of Americans, the burden shifts elsewhere.  The larger person suffers both the discomfort and humiliation of being unable to travel without suffering.  The person in seat B, who has nothing to do with the problem, suffers too.

The law often addresses relative priorities.  It’s not that one is unimportant, but that one must prevail over another or conflicting choices would produce disaster.  It’s as if we got to pick which side of the road to drive on, rather than keeping to the right.  The right isn’t necessarily better than the left, but without a determination, we would all crash.

We can all agree that airlines should provide seats capable of fitting its passengers.  We can similarly agree that large people aren’t necessarily at fault for their size, and less worthy of respectful treatment.  But the person in seat B bears no responsibility for anything other than to pay for the ticket.  Having done so, he’s entitled to seat B, unencumbered by a portion of the passenger in seat A.

Delta owes me a seat on a flight.  And to the passenger in seat A, thank you for being a gentleman, and I’m terribly sorry that you were put through this ordeal.

Though it’s not my way to write about my cases, Houston criminal defense lawyer Mark Bennett has chosen a different path, following his trial on charges of evidence tampering.  After twelve days of trial and deliberations, the jury verdict came in: Guilty.  He ponders why.

When I asked the jury afterward about the specific intent element, they talked about my client having a higher duty, and drew an analogy to a doctor leaving a sponge in a patient (negligence per se, though they didn’t use those words). That’s comparing apples and oranges. I asked again a little later, and got no more satisfying answer. Though the jury had a written jury charge explaining that the State had to prove that my client had the conscious objective or desire to impair the availability of the drugs, and though I had pointed out in closing argument that the State hadn’t proven that, the jury couldn’t articulate any evidence of specific intent. They had, it seemed, glossed over that element of the allegations.

It’s like a punch to the gut.  All the effort, thought, energy, resources put into making one critical point clear to a jury, and to learn afterward that they didn’t get it.  There are plenty of reasons why this happens, ranging from the jury trying to second guess the evidence and law to reach a conclusion that makes the group feel that they have surpassed the mundane game of trial and reached a higher understanding.  Or maybe the words were too big.  Of course, it could also be that they felt an inherent distrust of the system and needed to reach their own conclusion despite the law and facts.

Who really knows?  The jurors are unlikely to have that depth of self-understanding.  They are often quite proud of themselves for having outsmarted the lawyers and the judge.  They are often very proud of their reaching what they believe to be a “just” verdict.  Few jurors give much thought to the notion of justice. 

Mark then runs through the possible culprits upon asking the question that most people ask after learning that the jury reached a verdict that “glossed over that element of the allegations.”  He concludes that the only shoulders upon which he can place fault is his own.  He failed to adequately communicate.

No, the buck stops with me. I failed to communicate to the jury the importance of that element of the offense, and the significance of the absence of proof of that element. It was the final prong of my closing argument, tossed in as lagniappe. Should it have come first? Should it have been the only prong? I knew from the beginning that the State was going to have no actual evidence that my client had intended to make the drugs unavailable. Should that have been the story I told, instead of the story of the alternate suspect?

Any other strategic or tactical decision I might have made would have had its own dangers. It brings more questions than answers—no answers, actually—but second-guessing is part of doing the job conscientiously.

And therein lies the problem.  Mark is absolutely right that the fault lies with the criminal defense lawyer.  That doesn’t mean that he did a bad job, though lawyers who do a bad job are at fault.  It means that the buck stops with him, as it does with all criminal defense lawyers.  Regardless of where the jury’s train went off the rails, it’s our job to keep it on the rails no matter what.

The problem is that we never exactly know how to do so.  We craft arguments, but as anyone who has ever watched a focus group knows, the dynamic of the jury room can go in a thousand possible directions that simply can’t be anticipated or addressed.  Sure, it would be great if we could be in there with them, explaining as a juror went off on a tangent why they are wrong or why their idea doesn’t hold water.  But at that point, they are on their own.  If a juror comes up with a crazy idea and another says, “yeah, that’s right,” chances are that they are going to end up in some strange place that no one anticipated. 

Bennett kept the jury out for days.  Clearly, he made them work.  The loss wasn’t because he did wrong, but because he somehow didn’t do the right kind of right, and that’s what he had to do.  He is responsible, even though he did nothing wrong.

Some of the commenters to his post offered their solace; he shouldn’t be too hard on himself.  While sweet, it wasn’t necessary.  Aside from the fact that warm and fuzzy doesn’t change anything, Mark wasn’t taking it any more personally than any trial lawyer would, or should, but making a point.  Ultimately, the job is to find the way to communicate the message despite the potentially insurmountable obstacles to making a jury understand. When it doesn’t happen, we ask what we could have done better, and hope to always learn from the loss.

In contrast, a  takes Lindsay Lohan’s lawyer to task for no discernable reason other than the “hefty fees” presumably paid.

At the same time, I can’t help believing that the fault for Lohan’s repeated probation violations – failing to attend weekly alcohol education classes, for example – lies at least partially with her lawyer.  Given the hefty fees I presume the lawyer is charging Lohan, it seems to me the lawyer could have hired someone to personally pick her up and accompany her to the classes. 

The author of the bizarre accusation begins by admitting that he’s got no basis for this belief, but it doesn’t stop him from writing about it anyway.  The implicit assumption is that the well-paid lawyer has some super-lawyerly control over a client, and a different responsibility than the lesser-compensated lawyer.  There’s no claim that the author was inside the meeting between attorney and client, explaining the responsibilities the client undertook with probation.  Rather, there’s only the utterly inexplicable expectation that if a lawyer is paid enough, she should be held accountable for things that have nothing to do with her representation and fall totally outside the lawyer’s purview.

Critical to the lawyer’s task, and responsibility, is a firm grasp of the things for which we are responsible, and the things for which we aren’t.  The size of the fee doesn’t dictate the scope of a lawyer’s duties.  High priced lawyers don’t carry their clients around in a sedan chair until their probation is over.  They are lawyers, not “handlers”. 

If there was reason to believe that the lawyer neglected to inform her client of the consequences of the failure to abide by the terms of probation, there would be good cause to criticize.  But that would be true no matter what the fee.  And there is absolutely no reason to suspect any impropriety on the part of the lawyer.   Perhaps Lohan wasn’t the most compliant client around.  Is that the lawyer’s fault too, as long as she was paid a “hefty fee”? 

Mark Bennett did nothing wrong, yet holds himself scrupulously to his responsibilities.  There are enough burdens on us to get it right in the face of variables about which we can only learn after the fact.  Manufacturing responsibilities that have nothing to do with the lawyer’s job, particularly based on some strange legal class-warfare basis where lawyers who don’t earn “hefty fees” cast baseless aspersions on lawyers who do, is the antithesis of what Bennett is trying to accomplish. 

Bennett’s post-mortem is intended to help him to perform his function as criminal defense lawyer better.  The other seeks to place blame on the criminal defense lawyer in the absence of factual basis or responsibility.  The former helps lawyers.  The latter is wrong and counterproductive.

Jonathan Turley reports that Supreme Court Justice Clarence Thomas is outraged at the hospital tasing of his epileptic nephew,

Supreme Court Justice Clarence Thomas is reportedly outraged and maybe heading down to New Orleans after his nephew, Derek Thomas, was punched and tasered at a Louisiana hospital after refusing to put on a gown.

Derek Thomas may have been admitted after a possible suicide attempt and suffered a “massive seizure.” When he refused to put on the gown and attempted to leave, he was reportedly punched by a security guard who also pulled out some of his hair. He was then tasered.

Jeff Gamso cautions against the optimistic route. 

A liberal is a conservative who’s been arrested.  A conservative is a liberal who’s been mugged.

Make them see the world from the other guy’s perspective.  Don’t dis someone until you’ve walked a mile in his shoes.*

It’s all sound in principle.  We’re products of our experience.  But it’s also a bit too easy.  So when we hear the news from New Orleans, we can hope it leads to greater compassion, but we’d be fools to bet on it.

I’m with Jeff.  Does anyone really believe that Justice Thomas was so wholly unaware of the suffering inflicted on people, particularly young black men, by police?  Come on.  He watches Youtube videos in his spare time just like the liberal justices.  He knows that young black men are only a curly hair away from a darn good tasing.  Or worse.

But Justice Thomas’ career, and belief system, are firmly rooted in the notion that the police are the guardians of the line between good and evil, and he’s made the choice of which side of the line he prefers to toe.  Sometimes, an incident close to home is an epiphany.  Other times, it’s an isolated incident.

Reports are that Thomas is heading down to New Orleans to investigate.  Investigate?  What exactly does he plan to do, put on his Sherlock Holmes cap and start snooping around the hospital?  Or will he pack his spare robe in his two-suiter and hold an inquest?  What will he do when the officer tells Uncle Clarence that he’s not talking, and the department explains that they can’t comment because they too are conducting an investigation.  You know, the departmental investigation that invariably results in the conclusion that the cop followed departmental policy.

Under other circumstances, much good could come from this incident.  It may only be a nephew, but it’s close enough to home to touch Justice Thomas’ ideologically cold heart.  But for a man of color in a position of great power to have made a career of turning a blind eye to the reality suffered by so many, that they are institutionally victimized by an armed force that so lacks respect for their kind that the infliction of pain is the preferred method of control, Justice Clarence Thomas has already made his decision.

Of course he’ll be outraged at what was done to his nephew.  Who wouldn’t be?  But somewhere, there will be too great a gap between synapses to connect the dots.  One young man was wrongly harmed.  No vote will change.  Society will proceed as it always has, with the blessing of Supreme Court Justice and Uncle Clarence Thomas.

It’s hard to believe, at least for a fellow like me, that anyone would stand up and proudly proclaim that procedure must prevail over substance.  Yet, a hero for procedure has appeared, supporting the 9th Circuit’s decision in Lee v. Lampert because procedure must prevail.

Mark Thompson at League of Ordinary Gentlemen has chosen to be King of the Grocery Clerks with Checklists (with apologies to grocery clerks without checklists).

Thompson’s initially establishes his bona fides by proclaiming himself a staunch defender of the rights of the accused.  Not being a follower, I demur, though I would do the same if he proclaimed himself clairvoyant with particularly handsome ears.  In other words, it doesn’t matter much either way.  What does concern me is his exceptionally poor comprehension of the concept of precedent.

Thompson challenges my explanation of the ramification of the decision, but calling it a misstatement of the facts of the case.  It can’t be a misstatement since it wasn’t a statement at all.  Dangerous minds fail to see how the holding creates precedent that applies to all of those scenarios that fall within its purview.  Dangerous minds lead ignorant minds down the path to misunderstanding and foolishness.  Dangerous minds have a right to express themselves, no matter how terribly wrong they are.  The burden then shift to others to attempt to blunt the harm dangerous minds can cause.

But this is where Thompson goes careening off the tracks.

Allowing an “actual innocence” exception to the statute of limitations would, in effect, render the statute of limitations meaningless.  All that would be necessary to file a habeas petition would be an allegation that certain evidence presented at trial (or that could have been presented at trial) is exculpatory.  Once such an allegation is made, the prisoner would be able to proceed with ”the submission of exhibits, oral argument, evidentiary hearings, and [to obtain] numerous rulings,” essentially obtaining a mini re-trial in federal court of his state conviction.  As the 9th Circuit pointed out, that is precisely what happened here.  This is perfectly acceptable where a prisoner is able to make a credible allegation that he did not possess the exculpatory evidence until after his conviction was final (and could not have obtained it earlier even with due diligence), and the exception for after-acquired evidence exists for that reason. 

On the one hand, Thompson’s argument fails to reflect a grasp of legal process.  The mere unsupported allegation of “actual innocence” is meaningless, and only by a well-supported, factually grounded position does the defendant stand any chance whatsoever. 

But more importantly, the implicit view, that recognizing innocence would “render the statute of limitations meaningless” would somehow rend the fabric of society to shreds, is nonsensical.  This was precisely how things worked before Congress decided to mess with the Great Writ in the AEDPA.  The Nation survived long enough for Congress to muck it up. 

So what’s the problem with giving a damn about innocent people remaining in prison?  Here’s Thompson’s bottom line:

The courts cannot and should not be expected to expend tremendous resources to conduct a mini-trial every time a convicted prisoner claims that they are actually innocent after having had the opportunity for an appeal and a substantial amount of time thereafter to file a habeas petition separately challenging the conviction. 

It’s just too darn tough on courts.  We can’t expect courts to suffer the burden of preventing the imprisonment of innocent defendants.  That would be hard work.  Lots of hard work.  Maybe even lots and lots of hard work.  After all defendants would be coming out of the woodwork, claiming innocence, and courts would be required to do what courts do, make decisions.  We couldn’t have that.

To a measure, I agree with Thompson that procedure keeps the system moving forward. Where he completely misses the point is that procedure serves an end, a goal, to prevent the imprisonment, and execution of the innocent.  If that’s not the purpose of all this, then why do we bother?  When the process becomes more important than the goal, it’s time to pack our bags and go back to the farm.

Let’s never forget why we engage in this crazy exercise called the legal system.  Let’s never leave it in the hands of grocery clerks with checklists, who are so beloved of the rules that they can’t see why procedure must never trump substance.  Let’s never rationalize why an innocent person must remain imprisoned lest our rules of procedure be “rendered meaningless.”

The verdict is in on former Oakland Police Officer Johannes Mehserle, who was responsible for the death of Oscar Grant.  Guilty of involuntary manslaughter, the least culpable of the charges against him.  Popehat provides a thorough examination of the charges and elements, and presents a cogent discussion of why, in the absence of evidence to the contrary, the verdict was right.

There’s a nagging problem.  Why does this “benefit of the doubt” argument apply so readily, so easily, when the culprit is a cop?  As Norm Pattis points out from his §1983 work, any crack in the proof against a cop and chances are good that a judge will toss the case.  So what if the judge never tried a case in his life.  He still knows the limits of a reasonable jury.

In Mehserle’s case, the defense was that he went for his taser and grabbed his Glock instead.  Add to that the stress, the flurry of activity, the lack of time for reflection, and to a jury, and likely a judge, it seems horribly unfortunate, but certainly possible.  Police officers aren’t perfect.  They aren’t Supermen.  They are just hard working civil servants who put their life on the line every day so that law-abiding citizens may walk on the streets without constant fear of crime.  And sometimes, something goes wrong.

No sale.

No cop reaches for his taser and grabs his Glock.  No cop doesn’t know exactly where his gun is on his belt.  No cop, even under the most extreme of circumstances and pressures, grabs his gun by accident.  Never.

The fault lies in society’s belief that we can substitute the judgment of well-intended, ordinary folks for that of people trained for specialized service.  What regular people think is reasonable has absolutely nothing with what the dumbest, nastiest, laziest cop thinks is reasonable.  Regular people have not been through the Academy.  Regular people don’t strap on a weapon to go to work.  Regular people don’t think, whether true or not, that any day could be there last, so if nothing else, nothing else, they know where their gun is.  If it’s going to be their last day on earth, they will go down with their finger on its trigger.

Intent isn’t discerned from voodoo, but from conduct.  Mehserle’s intent is known only to him.  The intent of a defendant, however, is known to all by what he did.  Intent is not the best word to describe the element, but it’s what we use.  The only thing we can ever truly know is the action that corresponds to the mindset, and that becomes intent for the purposes of a jury.

The defense offered a great alternative to the reasonable belief that when a cop shoots a person with his gun, that’s precisely what he meant to do.  The old Taser/Glock switcheroo.  It can happen right?

No, it can’t.  It is unreasonable to believe that former Oakland Police Officer Johannes Mehserle grabbed his Glock when he meant to grab his taser.  In fact, it’s ridiculous.  Except to a jury.

It can’t be easy for the young lady who gains stardom at a tender age to realize her place in the universe.  This is especially true for Lindsay Lohan, who was an orphan with two living parents.  No rules that gauge the limits of conduct for the rest of us seem to apply quite right. 

But then, some rules do apply, and when that happens, the punch in the gut has to hurt.  There is no such thing as a punch in the gut in their rarified alternate universe.  Lohan violated probation in her 2007 drunk driving case and was sentenced  to 90 days in jail and 90 more in rehab.  Bang!  Boom! Whap! Gut punch.

Dealing with celebrities is always problematic.  We learn about their outcomes because they are, well, celebrities.  When Joe Schmoe gets violated, nobody knows because nobody cares about poor Joe, aside from Joe and a small circle of friends.  But Lindsay Lohan makes headlines. 

Too harsh?  Too lenient?  No matter what happens, there will be someone saying that it’s wrong, it sends the wrong message and it was all because of her celebrity.   The judge who must impose sentence can’t win.

This strikes me as a particularly thoughtful sentence.  She was given a chance and blew it.  The jail time falls far below what’s given to many in the same/similar situation, and yet it’s not insubstantial.  It sends a message, and the message seems quite right.  No, Lindsay, you don’t get a free pass because of tears and a charmed life.  No, Lindsay, you don’t get the death penalty to scare the crap out of every teenybopper who might someday drive drunk.

Plus, Lindsay did something worthy of every belligerent, foolish defendant we’ve ever represented.

Frankly, this is possibly the least attractive choice of nail polish I’ve ever seen.  And it really doesn’t suit her at all.  But as messages go, Lindsay Lohan seems to have done more than her part. 

Update: I have corrected the spelling of Lindsay Lohan’s name, per advice of Ed at Blawg Review.  Clearly, I don’t know my teen idols like Ed does.

Alexander Hamilton wrote in The Federalist that the judiciary would be the least dangerous branch of government.  He based this on the third branch lacking “the power of the executive branch and the political passions of the legislature.”  The judicial branch has no army to enforce its rulings and no bully pulpit to enrage the citizenry. 

The judiciary has only one weapon at its disposal.  Integrity.  And it’s given its only weapon away.

Via Mike at Crime & Federalism, the 9th Circuit has ruled in Lee v. Lampert that process trumps substance.  They know an innocent man to be convicted and imprisoned, but they just don’t care enough to do something about it. 

We decline to prolong the inevitable recognition that there is no “actual innocence” exception to the one-year statute of limitation for filing an original petition for habeas corpus relief.

The use of the phrase “actual innocence” has always been deeply troubling.  It suggests that the person who cannot prove his innocence cannot be, in fact, truly, actually, innocent.  The dilemma can just as well be the absence of a way to prove a negative fact rather than the fact of innocence.  And it flies in the face of the presumption of innocence in the face of an improper conviction, which has been turned upside down by failure to preserve and harmless error analysis.

But in the rare case where a defendant can prove that he did not commit the crime, but the information or evidence doesn’t manage to come into his hands until more than a year after the exhaustion of remedies, even if the cause is concealment by the government or incompetence by his lawyer, the 9th Circuit told us their truth.  They don’t care.  They just don’t care.

In contrast, the 11th Circuit boldly held that this was a step too unpalatable for them to accept in Gilbert v. U.S.  But not the 9th.  Time ran out and that’s that.  Like the grocery clerk with a checklist, the rules say one year and one year it is. 

That Congress, in its zeal to curtail defendants from destroying the fabric of society, decided to use a statutory trick to undermine the fundamental purpose of the Great Writ as the final safety valve for an imperfect system, gives rise to the problematic issues raised by Lee v. Lampert.  That Judge Diarmuid Fionntain O’Scannlain decided that a procedural rule was more important than the bottom line, innocence, is a curtsy to Congress, an abdication of the only role the least dangerous branch has in the scheme of government.

One of the foremost concerns voiced by courts in the performance of their function is the maintenance of the appearance of propriety.  The public’s trust, and the integrity of the judiciary, depend on it.  Without it, the courts are nothing, worthless.  When the public ceases to believe that they can obtain redress for wrongs in the courts, then they only option available is the use of weapons.  Our founding fathers were ingenius to provide the citizenry with an alternative to insurrection. 

The judiciary are the stewards of this public trust in their integrity.  They try to protect it fiercely, though mostly from assault by lawyers who call judges mean names.  They are less fierce when it comes to their own actions.

The public will view this decision, one that demonstrates that innocence comes in a distant second to some grocery clerk’s rule, as affirmative proof that the courts are just a part of an omnipotent machine designed to subjugate the public. It’s an overwrought characterization, but it’s about public perception.  Nuanced explanations don’t work well with citizens marching with torches and pitchforks.  They’ve usually got their mind made up already.

Whether the decision makes perfect legal sense or not isn’t important.  The decision gives up the basic integrity of the judicial system, that there are things that matter so much that no rule, no law, no bunch of old men, can ever give them away and still hold our trust.  This is such a decision.

There is a circuit split on the issue.  There is hope that it can be resolved in a way that puts innocent people ahead of the grocery clerk’s rules.  Will the Supreme Court take up such a dangerous cause?  And if it does, will the justices reveal themselves to be lovers of the People and the safeguard of the Great Writ, or lovers of grocery clerks?

I’ll be leaving in a few hours to go to Atlanta, Georgia.  No, it’s not a big case or a snazzy conference.  It’s the United States Fencing Association’s Summer Nationals Championship, where my son, an epee fencer, will be competing.  It offers not only the opportunity to participate in a great sport, but a number of critical life lessons that will stay with him as he moves on to adulthood.

I’ve thought many times about the lessons he’s gained from fencing, and how they will distinguish him from many of his peers.  This seems like a good time to share them with you.

1.  Some win.  Many lose.

Not everyone gets a trophy at the National Championship.  It’s quite an honor to make the top 32 in the nation, and it’s extraordinarily difficult.  In fact, it can be crushing to go down in defeat.  But that’s how life works.  One has to take defeat with the same grace as one takes victory.

2.  Sportsmanship.

Fencing remains one of the few “gentlemen’s” sports.  The fencers salute each other, the director and the audience before each bout.  Should they reach a tie with one touch to go, they will salute each other again to honor the effort of their opponent, as the next touch will end the bout.  Afterward, no matter who wins, they will shake hands.  They will fence each other with the utmost intensity during the bout, focused solely on winning.  There is no end-zone dance, no lashing out in anger, no hatred.  There are two people who honor each other’s effort.  After the handshake, there is often a hug between two people who have given their all.

3.  Handling pressure.

These are the national championships.  It doesn’t get any bigger, and for fencers who have fought just to be allowed the honor of qualifying for these games, the pressure to prevail is enormous.  It requires great maturity to overcome the pressure, to calm oneself and focus at the task at hand, no matter how important it is.  There will be plenty of time afterward to consider what was at stake, but when a fencer steps onto the strip, there is nothing to think about beyond the bout in front of him.

4.  Perseverance.

The competition begins with pool bouts, where a group of fencers are formed and each must fence the others.  Someone will lose the first pool bout.   Someone will lose the first two pool bouts.  It’s easy to give up, to believe that you’ve dug yourself into a hole from which you can’t escape.  Persevering despite adversity won’t guarantee a win.  Giving up will guarantee a loss. 

5.  Hard work.

None of the fencers who qualify for the national championships got there because of connections, good looks or whining.  Every one of them worked long and hard to earn the right to compete.  Many who worked hard did not make the cut, but everyone who does had to prove themselves on the piste.  There is no other way to get there.

6.  Sacrifice.

There are days when sitting in front of the television, playing video games, sleeping late, feel pretty darn good.  But it takes a commitment to excellence that compels a fencer to push forward, to get off the couch and onto the strip.  Not just when he feels like it, but when he knows he must maintain a practice and competition regimen if he wants to be capable of being competitive.  No one forces him to get off the couch.  It has to be his choice to sacrifice fun and comfort for something bigger. He knows that without it, he will not be worthy of fencing in the nationals.  He is willing to make that sacrifice for the opportunity to achieve.

7.  Personal pride.

In life, we can choose to try to be the best at something or blend into the crowd.  This isn’t to say that we will achieve supremacy, but that we strive to do so.  It’s invariably a matter of personal pride, an intrinsic decision that we will not be satisfied with ourselves for being one of the many.  The desire to be the best at something pushes us to try harder, work harder, care more, focus more, push beyond what we think are our limits and break through the brick wall that separates the best from the others.  No, it may not be achieved, but the personal pride needed to push a fencer to keep trying, to keep fighting, is what allows him to strive to become the best he can be.  Never settle for less.

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Over the next week, I will be waking up early and fixing or fine tuning weapons.  I will make sure uniforms are clean and safe.  I will talk about strategy, both good and bad, to the extent he wants to hear it from me.  I will do what I can to bring a fencer ready to win to the competition.  Whether there will be any time to post at SJ is unknown at the moment.  My son will be my priority and posting here will be a very distant second.  His job is to fence his best.  My job is to be the best father to him I can be. 

I hope he does well.  More than that, I hope he has fun and is proud of his effort.  I am proud beyond words of my son.