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I said I wouldn’t write about Martha and I’m not -- I’m writing about what
other people have said about her case. In this case it’s the former president
of the Queens Bar Association, Mr. Stephen J. Singer, writing in Newsday on
March 15th. In his comments he comes down hard on the defense lawyers for
allowing Martha to speak to the government investigators in the first place. That
was the original mistake, he says, from which all her other misfortunes
stemmed. `
Last time I wrote I quoted another lawyer, Floyd Abrams, on this subject of
silence. He said it was the duty of an innocent citizen to cooperate with the
police in investigations. He implied by this that a guilty person doesn’t
have such a duty. Instead he has right to remain silent so as not to incriminate
himself. Most people will concede these great truths. The trouble is,
though, that the exercise of one’s rights is not cost-free. It carries a penalty
with it, which I deal with below.
This was Martha’s dilemma and she resolved it by answering the questions put
to her. She didn’t want to see headlines saying “Where is Martha?” or “
Martha Won’t Talk”. So she did the thing others have done before her “She
cooperated fully” and “answered every question”, meaning that she stonewalled all
she could and “answered” by saying “I don’t know” or “I have no specific
recollection” or variations of the same. She put on a performance.
This is the activity that saddened Mr. Singer. It shouldn’t have. If Martha
had been his client and she had followed his recommendation to say nuttin’ to
nobody, the reaction would have gone beyond headlines. The public would have
concluded immediately that she was guilty of all charges and in fact it would
have become difficult to find a jury to try her with this overwhelming
conclusion fixed in people’s minds. At least by talking, she left a possibility
that maybe, just maybe, she was telling the truth or some of it or a decaf
version or an astral one or something. Better than nothing anyway.
So in the great controversy as to whether to shtoom or shmooze, shmooze wins.
It also wins in the legal textbooks. They support Mister Abrams on the
question of cooperating with investigations. After all it isn’t that hard to say “
Geez, I don’t really know about that” or use the “iced tea” routine
popularized by Al Gore (attended a meeting, but missed everything due to absence
enforced by previous O.D. of I.T. I love it.)
All discussion of Martha’s case eventually resolves itself into a discussion
of her lawyers and from there to one about lawyers in general and their
peculiar habits and behaviors. One characteristic that stands out is their
propensity to create elaborate codes of behavior intended to control their natural
aggression and channel it into constructive paths. These codes continue to
expand as more and more ways are found to get around them. Patches are applied.
But still the loopholes multiply and the codes…atrophy. For instance I dislike
the criminal lawyers’ habit of proclaiming their belief in their clients’
innocence. That’s against the code so far as I can see, since it demands that
personal opinions of the merits of a client’s case shall not be offered to the
public. But they do it; they don’t say “My client maintains he’s innocent”
they say “My client is innocent”. That’s different. A professional man, an
officer of the court, is telling us that the legal machinery is being operated
by a crew of blitherers who are trying to railroad a splendid human being for
no good reason except some obscure grudge they’ve conceived against him,
probably from jealousy of his superior beauty.
Personal opinions are barred by the bar because (a) they put other clients of
the attorney at a disadvantage if he fails to give them the same endorsement
and doesn’t proclaim his belief in their innocence but only their own, which
somehow doesn’t carry quite as much weight, and (b) because it makes the lawyer
a witness in the case, which he has no business to become.
Another reason which isn’t usually cited by bar associations, but might be
the strongest of all in repressing lawyers’ urges to fight in the ring instead
of supporting their man from the corner is the fact that nobody believes
anything they say about their clients. Everyone knows they have a routine to go
through, which they seem to have learned in kindergarten. It begins with this --
“My client was never at the scene”, and goes on to this --
“He’s a victim of mistaken identity,” and continues --
“The police tampered with the evidence,” then --
“His confession was coerced,” because --
“It’s in English, which he doesn’t speak,” so that --
“We are confident when all the facts are known, Mr. ---- will be fully
exonerated.”
Repeated often enough, this kind of thing creates a credibility problem for
lawyers. It also creates a respect problem -- people on the prosecution side
of the case come to look on defense lawyers as a species of worm suitable
only for fishbait for blind fish.
Last week I wrote about the French criminal justice system, which doesn’t
offer any scope to lawyers trying to put the police on trial instead of their
clients. That doesn’t necessarily mean that I think the English adversarial
system which we use is completely outmoded and due for replacement. Yes, it has
stopped working here, but it still works in the other English-speaking
countries of the world. Their defense lawyers work just as hard for their clients as
ours do, but somehow they avoid putting on circuses like the Simpson trial,
with its 60,000 objections, nine-day cross-examinations of prosecution
witnesses, and other stunts.
Apparently we have a national weakness for going to extremes and casting off
restraints. We allow lawyers to get adjournments on top of adjournments to
wear out the opposition witnesses, take as much as six weeks to pick a jury, go
on fishing expeditions with so-called “interrogatories”, wander all over the
lot with irrelevant questions, bait witnesses, distort facts, in short, try
everything on which is rejected by lawyers elsewhere, who yet manage to
represent their clients as effectively as any of our gunslingers.
I’m not naming any names here, but most people will have their own nominees
in the category I’ve described above. It’s a category only, a subset of the
whole. It doesn’t represent the generality of lawyers, only those who bring
notoriety on the rest and tweak my blood pressure. But to be fair, I couldn’t
get along without them, for then there’d be no column. So in that way there’s
a silver lining through the dark clouds shining.
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