A Round Tuit (37)

When it comes to legal blogging, there seems to be no shortage of writing worth reading once one gets around to it.

What's that? You have no round tuit? My friend, you are fortunate indeed, for never before in human history have round tuits been so readily available. If you need one, Carbolic Smoke Ball Co. has them in stock.

While you place your order, I'll share a few posts which are worth your attention.

This past week, we Americans commemorated our Independence Day. Our Declaration of Independence remains a remarkable document. Its prose is, in places, pure poetry; the underlying concepts have never been better stated elsewhere, before or since. As Americans, we have much to be proud of and thankful for, as Scott Greenfield noted:

There are so many things that we could do better here, and so many stumbling blocks that prevent us from accomplishing the goals of the Declaration of Independence. Yet, Americans live a very good life. Often misdirected, with far too much emphasis on the material and personal status. A cynical view is that we're herded that way so that we don't spend too much time thinking about the more important things, the things that this nation isn't as good at providing. When the economy tanks and we lack the wherewithal to buy shiny things, our minds wander to more existential matters like freedom. But then the economy improves and we go right back to worrying about the new car we desparately need to show our neighbors that we're as good as they are. Maybe better. This is the good life we lead.

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Despite the ongoing economic problems, the still-spewing oil in the Gulf of Mexico, the fighting without end in Afghanistan and Iraq, and a nation perpetually confused by the meaning of the Declaration of Independence, we still live a better life her than many other people do elsewhere. That's an accomplishment worth appreciating.

On the Fourth, Bobby Frederick reread the Declaration of Independence and the Constitution and wondered whether we'll ever live up to their ideals:

Today, most of our citizens have no idea what those documents say or mean, nor do they care. Freedom sounds good - but it should not get in the way of law and order, establishing and maintaining Christianity as the dominant religion of our country, or suppressing undesirable viewpoints. We quickly became an oppressive, imperialist nation which exerts its influence across the globe by attempting to conquer and control as many foreign lands as possible and then exploit them for as long as possible. We have become much better at this than England ever was.

In a few minutes, I'm going to watch a fireworks display with my three year old son, and we'll have a good time. He'll enjoy the pretty lights and the loud noises. I'll stand in awe as I think of how we are celebrating the birth of a nation, and I'll imagine I am seeing the red glare of rockets and hearing the bombs as they burst in the air above us. I love this country, and what it is supposed to stand for. But I wonder if or when we, the human race, will evolve from our violent nature - will we ever stop trying to control one another, killing one another, exploiting one another.

Mark Bennett reminded us that the Declaration of Independence was not a academic exercise:

The founders were not always patriots. They began as traitors, risking everything to sever their ties with the government that was supposed to keep them safe but that broke that promise and stole their freedom.

America didn't become independent in the first week of July of 1776. The founders didn't, with a stroke of the pen, create a free nation; rather, they formalized a revolution, and pledged to that revolution their lives, their fortunes, and their sacred honor. It took seven more years for the states to become independent.

Thomas Jefferson knew that the course of governments is toward greater authority and tyranny. That governments become destructive to life, liberty and the pursuit of happiness was a fact acknowledged in the Declaration without fanfare. Whenever—not "if" or even "when"—it happens,

it is the right of the people to alter or to abolish it, and to institute new government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their safety and happiness.

Government's advance toward tyranny can be slowed by resistance—that's our day job—but it can only be reversed by revolution.

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The time may not be right for revolution now; that does not mean that it never will be. And until the day arrives when we must refresh the tree of liberty, it's our job to keep the spirit of 1776—the spirit not of independence but of revolution—alive.

Preserve the spirit of resistance.

Rick Horowitz shared Bennett's sprit of resistance:

Our Founders, those who gave birth to what has been unarguably the greatest nation on Earth — though one may doubt whether we still deserve that title — were a rebellious lot. They would not have tolerated a police force that makes things up as it goes and almost always what is made up is contrary to law. They would not have stood for a police force which, under the guise of making us safe, takes over our neighborhoods, placing everyone under house arrest and threatening the very safety they claim to be protecting.

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For most of the life of the United States, we lived by a set of values enshrined in the Declaration of Independence and a set of rules enshrined in the Constitution which created these United States. Today, the values are but buzzwords; the rules have become, at best, guidelines — a means for criminal defense attorneys like me to try, usually unsuccessfully, to rein in the governmental abuses of a police force run amok.

I say this with sadness more than my own sense of rebellion.

On Independence Day, Norm Pattis' sense of rebellion sounded as though it were forged in anger rather than tempered by sadness:

John Rawls conceived the social contract as one involving the following bargain: would folks with a general sense of a society's social structure and economic possibilities agree to abide by the rules if they did not know what position in society they would occupy? This is called he maximin position: Wouldn't we want to assure that the worst position in a society, the lowest rung, is a place we could accept as just? Wouldn't we want to maximize the minimum position?

Our contract is broken today. Few would protest being a hedge fund czar, sitting atop a mountain of cash knowing that risk is underwritten by the federal government. The banker's world is sweet: They are too big to fail. But so many Americans now are too small to succeed. Just how many people lost homes last year? How many homeless are there? How many have lost hope? Doesn't the Declaration speak to them as well?

We were once a refuge to those in need. Today we close our borders. The world is smaller. There is nowhere to flee in the name of liberty and opportunity. We are here, in a land we call free where many live lives of desperation.

Tomorrow is the Fourth of July, but it is not Independence Day. When I read the Declaration of Independence I am inspired to revolt, but not against King George. I'm looking for something a little closer to home, and can't quite get a bead on just what that might be or how that rebellion might look.

Considering the Bill of Rights, Gideon was also bothered by how far we've regressed in two centuries:

What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.

The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.

These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.

Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.

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The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.

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The law is dead and slowly, it’s killing us all too.

Brian Tannebaum added:

Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system. To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America - a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.

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A frequent quip is that if the Constitution were to be drafted today, the 4th, 5th, 6th, and 8th Amendments would look much different, if they were written at all. More frequent is the cries of those who rail against the criminal defense function, until they are arrested, or worse, treated rudely by a police officer. At that point, they "know their rights." So they thought.

Sadly, I don't think we will ever go in a different direction. We see the criminal defense lawyer as an obstructionist, a delay tactic, and a waste of taxpayers money if it's a public defender.

John Wesley Hall, Jr. suggested that we ourselves are responsible for our loss of Fourth Amendment liberty, having acquiesced in or encouraged government abrogation of these rights:

We as a society have to change the government’s thinking about the Fourth Amendment. But, don’t blame Bush or Obama; blame yourself. If the government never has much respected the values of the Fourth Amendment, apparently “We the People,” the collective we, haven’t either.

It’s always the other guy’s privacy rights at issue, never yours. That short sighted thinking for the life of this country is what got us in this Constitutional mess. The rights of every citizen are protected when the rights of any one of us are. This is the boiling frog syndrome in action–what little rights we have we don’t even try to protect because we don’t see them slipping away when it is always the other guy who’s rights are violated.

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To get government to respect the Fourth Amendment as a government policy will take a seismic shift in American thinking. The civil libertarians couldn’t do it, President Obama can’t do it, and the Tea Partiers and government won’t do it. I don’t see Americans today doing it because individual privacy is not a “hot button” issue for anybody in 2010 except for the person who just lost his or her privacy.

Say a Second Revolution were to happen today; if it were successful, what founding documents would be put in place for the new republic? Frankly, we couldn't do better than to start with the Constitution and Bill of Rights. America's failure is not in its foundation, but in how far we've diverged from our founding principles; we've done it little-by-little, generally with the best of intentions, often in response to genuine crises, but we've done it.

What's needed then is not a revolution against this government particularly or all government more generally. We need a revolution of government — of what our government does and how it does it, and perhaps more importantly what our government will not do, leaving us to do for ourselves or do without. This is not a partisan issue. Both Republicans and Democrats have demonstrated that they will diminish their citizens' rights to benefit their own power; both parties have demonstrated an unwillingness to rein-in spending and regulation to achieve the limited government envisioned by our founders. Both parties are wrong and we're wrong for abetting them with our money, votes, and continuing support. I'd join the Democrats if they stood for limited government and personal responsibility; I'd join the Republicans if they stood for personal liberty and social equity; I'd join the Tea Partiers if they stood for something more than lower taxes and smaller federal government.

Can it be called a revolution if you're not replacing one form of government with another, but instead restoring it to what it was in the beginning? On a golf course, that's called a mulligan. On a playground, it's a do-over. Amongst friends, it's a second chance. What's needed isn't so much a political struggle but a reaffirmation of faith in our founding principles and a repopulation of a more limited government with public servants who respect individual liberty. We need more statesmen and fewer politicians; we need more citizens and fewer clients of government.

Our Founding Fathers recognized that government is a wild beast; they captured it and built a zoo to contain it, but in the centuries since we've transformed that zoo into a wildlife park. In the process, we've become become prey for the beast. The first Independence Day heralded a triumph of limited republican government over boundless royal authority. It was a confirmation of support for the natural rights of individuals. Time and again the Declaration of Independence describes a free people voluntarily giving up a tiny fraction of that freedom to create a government capable of guaranteeing their personal, social, and economic freedoms and capable of nothing more than that. Will we regain the spirit of that first Independence Day? I hope we will do so within my lifetime, but it will take more than hope; we'll need to pledge to each other, as our Founding Fathers did, "our Lives, our Fortunes, and our sacred Honor."

Solicitor General Elena Kagan's nomination hearings continued this past week. Kagan continued to display both a sparkling wit and an ability to avoid giving substantive answers. As to the former, Kashmir Hill collected Kagan's five pithiest sound-bites from the third day of her confirmation hearings, continuing Above the Law's excellent play-by-play coverage of the spectacle. As to the latter, you can review nearly any other statement she made. Norm Pattis aptly described her performance as a "theater of evasion":

To the president belongs the right to nominate a person to the Supreme Court. The Senate has a supporting role in the process: to advise and consent to the nominee. But this role is reduced to a charade when a candidate does what Kagan did, and claims the jurisprudential privilege of refusing to answer any question that involves an issue on which she might rule. Answering such questions would be "inappropriate," Kagan said, again and again.

There is nothing inappropriate about answering an honest question with candor. Kagan's refusal to do so justifies a bipartisan filibuster of any vote on her nomination. When she sat before the American people yesterday looking like some sort of self-satisfied chipmunk she did nothing so much as offend.We should offer you lifetime employment based on that interview? I'm sorry, counsel, but I wouldn't hire you as a summer associate if yesterday's evasion is the best you can do. A Supreme Court justice is much like an ancient oracle, your utterances will define the terms and conditions of our lives. It is not too much to ask what you think of issues likely to come before you.

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If this is the best Kagan can do,the Senate would be within its bounds simply to refuse to vote on her nomination. It would be unfair to reject her outright: she is intellectually qualified. But she is saying nothing. The woman is pretending to be a cipher. The Senate can and should put an end to the theater of evasion by refusing to pass judgment on her nomination until she does something other than tap dance around the truth. Perhaps that is the only way we can put an end to the sorry spectacle of meaningless nomination hearings.

Though the focus of this sorry charade was on the nominee, several legal bloggers questioned whether the Senate Judiciary Committee was fulfilling its "advise and consent" role. Admittedly, I couldn't stomach much of C-SPAN's coverage for all their posturing and preening, but judging by what I saw of our Senators' performances, I wouldn't trust them to advise me on a used car purchase, much less a nominee to the nation's highest court. Elie Mystal offered "one man's take" on each of the members of the Committee:

[T]here seems to be a media blind spot when it comes to grading the Senate Judiciary Committee itself. These 19 elected representatives are entrusted with the awesome responsibility of being the people’s voice in a process that ends with a lifetime appointment. Yet few seem to care if these guys are doing a good job — or if they even know what they are talking about. Sure, we’ve got to live with confirmed SCOTUS Justices for the rest of their lives, be we have direct electoral control over the Senators who do the confirming. Is it too much to ask that we find 19 people in the entire U.S. Senate that actually understand what judges do for a living?

Remarkably, Mystal found a few bright spots — Republicans Hatch and Graham and Democrat Klobuchar (despite her Twilight-themed questioning) received A's and A-minuses — and more than a few who need to reread Article II, Section 2 of the Constitution.

Jeff Gamso did not comment on Mystal's willingness to grade, but on Kagan's refusal to do so:

She doesn't want to "grade" the work of those she hopes will be her future colleagues. I don't blame her. It could make for uncomfortable days on the Court if she says that every one of the eight folks with whom she hopes to work for a couple of decades frequently act like dishonest charlatans whose work is ideologically driven, fatuous, and out of step with both the real world and any honest recognition of what the Constitution and the law are really about.

But so what? She isn't running for Generalissima Congeniality. She's running for a seat as Associate Justice on the Supreme Court of the United States. Her efforts toward collegiality cannot trump the Senate's right to ask and learn before confirming. And certainly should not trump the public's right to know.

And that whole, I can't express a view on any issue that may come before the Court (which is, of course, any issue) because it would be "inappropriate." Why? What would be inappropriate about it?

OK, I agree that it would be inappropriate to promise a particular vote in advance of the case being put before the Court. When she must decide X, it should be on the specifics of the case, the record, the details of the question presented, the briefs and arguments, and the precisely relevant laws. To promise now what she might say then would be wrong, because it means she won't do her job then.

But to say what she thinks? Now? About the issue itself? In general terms? There's no reason to refuse.

Justice Scalia has made clear his general view of the constitutional right to abortion. So has Justice Ginsburg. So have the rest of them. Are they, thereby, disqualified from addressing the question when it next comes to the Court? If they are, then they should disqualify themselves from just about every case. The Court would be out of business in two years.

If a sitting Justice can express a view in one case and still vote in the next, surely a not-Justice can do that.

Senator Tom Coburn is a big fan of The Federalist Papers and he wanted everyone watching the hearings to know that. I think he also likes fruits and vegetables, but he might just dislike Obamacare; some of us are still a bit fuzzy on where he was going with his Commerce Clause questioning. Jacob Sullum noted Coburn's discussion of healthy living and unhealthy lawmaking:

Coburn: If I wanted to sponsor a bill and it said Americans, you have to eat three vegetables and three fruits every day and I got it through Congress and that's now the law of the land, got to do it, does that violate the Commerce Clause?

Kagan: Sounds like a dumb law. But I think that the question of whether it's a dumb law is different from whether the question of whether it's constitutional, and I think that courts would be wrong to strike down laws that they think are senseless just because they're senseless.

There is nothing objectionable in Kagan's response, except that it does not address the question Coburn asked, which is less fanciful than it might seem. As I have argued, the constitutional logic needed to justify the individual health insurance mandate as an exercise of the federal government's authority to regulate interstate commerce is so elastic that it can be stretched to cover highly intrusive laws regulating what heretofore were considered private choices.

In a second post, Sullum responded to criticisms that Kagan's remarks had been widely-reported out-of-context, omitting her response that the Commerce Clause has not been used (and should not be used) to regulate non-economic activities; the problem, as Sullum discussed, is that that's not the case:

She is wrong when she says the Commerce Clause "has not been applied to noneconomic activities." While U.S. v. Lopez, a 1995 decision that overturned a federal ban on gun possession in or near schools, and U.S. v. Morrison, a 2000 decision that rejected a federal cause of action for victims of sexual assault, did take a skeptical view of regulating noneconomic activities under the Commerce Clause, they left the door open to such regulation when it is "an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated." The Supreme Court seized upon that rationale in Gonzales v. Raich, the 2005 case in which it held that the power to regulate interstate commerce "includes the power to prohibit the local cultivation and use of marijuana in compliance with California law" (i.e., the state's medical marijuana law).

According to Raich, mere possession and consumption of marijuana falls within the Commerce Clause, so it's hard to see why mere possession and consumption of fruits and vegetables would not, provided the government said a fruit-and-veggie mandate was "an essential part of a larger regulation of economic activity." Coburn suggested how that argument might go, based on the federal government's heavy involvement in the health care market. Alternatively, federal regulation of agriculture—the rationale for the 1942 decision Wickard v. Filburn, which said the government could stop farmers from growing wheat for their own use because the resulting drop in demand affected interstate commerce—could provide a handy excuse. I would like to believe that Kagan was stating her own opinion when she said the Commerce Clause does not apply to noneconomic activity, but I think she was simply mischaracterizing the Supreme Court's precedents.

Though Kagan's testimony on property rights received less attention than did her comments about fresh produce, Ilya Somin considered what the nominee had to say about property rights generally and the Kelo decision particularly:

Kagan’s comments on Kelo are reasonable and largely accurate. It’s a substantial improvement over Sonia Sotomayor’s mischaracterizations of the decision during her testimony last year....

However, I do have a few bones to pick. First, it is slightly incorrect to state that Kelo said that the “public purpose” test applies only to cases involving “a broad-scale urban development plan.” The Kelo majority opinion was quite clear in stating that the test applies to all takings. Kagan was probably confused by the majority’s statement that “a one-to-one transfer of property, executed outside the confines of an integrated development plan” might not deserve as much judicial deference as one that is part of a plan. However, as the Court emphasized, the “public purpose” test applies even to these types of cases; it’s just that courts might not be as deferential to the government’s claim that a public purpose existed.

Much more importantly, Kagan was wrong to suggest that the existence of a “development plan” is a meaningful constraint on the scope of condemnation authority under Kelo. ...Virtually all economic development and blight takings are pursuant to some plan or another. Ironically, even 99 Cents Only Stores vs. Lancaster Redevelopment Agency, a California district court cases specifically cited by the majority as an example of an impermissible “one to one taking” was actually part of a redevelopment plan. And the Kelo majority’s refusal to even consider the quality of the plans in question ensures that it is possible for a state or local government to create a “plan” justifying virtually any taking.

I also think that Kagan is a bit too optimistic in suggesting that post–Kelo reform in the states ensures that “the question never arises because the state government doesn’t try to effect such a taking in the first instance.” As I have explained in my academic work on post-Kelo reform, many of these are primarily symbolic and don’t actually restrain condemnations in any significant way.

Like many law students (myself included, many years back), Laura McWilliams is drawn to criminal law as a professional focus; like many, she's realized that the adversarial system we embrace in our courts is nowhere more adversarial than in criminal justice. What she's found, and many law students do not, is that choosing sides is not the point:

Among the things that I discovered I wasn’t prepared for, the top of my list is this: I wasn’t prepared for the affinity I would feel toward criminal defense lawyers.

I don’t know if I should be thinking about the law as taking sides, but at this point (just after finishing my first year of law school and one month into my first internship), I think that if there are sides, there are just two: Prosecution and Defense. When I choose, I end up with the prosecution every time. But here’s a surprise: it doesn’t matter all that much. It’s just the side I fall on. It tells me which side of the courtroom I’ll be standing on when I’m a lawyer, and, of course, it will tell me when it’s my turn to speak. Without two sides, there’s no battle. Without a battle, there’s no trial. Without a trial, well…we’re talking about people’s lives and all. There has to be a battle.

The defense lawyers I know are rabid in the courtroom and on their blogs. They fight, as hard as anyone I’ve ever seen. The law is rules and procedure, but until you’ve watched an accused individual walk into a courtroom in leg chains, you haven’t seen the hole from which CDLs have to claw up. Defense lawyers have to be rabid. They have to.

And why shouldn’t they be? Innocent until proven guilty. That’s the beginning and the end of what our society tells us about criminal law. Any criminal defense lawyer will tell you that it’s almost never that simple. The legal system is flawed, and so are jury boxes. Judges, too. Every single person in the system is a human being and while that makes for an interesting society, it makes for an imperfect courtroom. So defense lawyers attack with every tool they can bring with them through that courthouse door.

Prompted by McWilliams' post, Norm Pattis discussed whether justice would be served by allowing defense and prosecution to switch roles from time-to-time; he encouraged McWilliams to "prosecute if [she] must, but be wise":

In England, barristers, or Queen's Counsel, are called upon to both prosecute and to defend, although obviously not in the same case. That seems a far more sensible system. The prosecution does not develop the sort of pack-like mentality that comes of close association in pursuit of common goals, year after year. Rotation of trial counsel also keeps law enforcement accountable; it could break the paramilitary pall that comes of ranks closed forever against the world. I am not a close student of the English criminal courts, but I wonder whether police lying and the code of silence is as prevalent there as it is here.

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Would the system improve and be less wasteful if we abandoned professional prosecution?

One benefit would be that the state, our grandest of legal fictions, would no longer be represented in the prosecution of criminal offenses by a caste apart. Prosecutors are simply unaccountable.

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We need prosecutors. But we need prosecutors who are something other than caricatures. Forcing lawyers to play forever on the same side of the courtroom does not make for better outcome: It guarantees group think and inefficiency. Prosecute if you must, Laura. But never forget that it is a person you are prosecuting; you will represent the state for a lifetime, and, truth be told, never meet your client.

Mark Bennett applauded McWilliams' idealism but cautioned that "such idealism casts little light on the way things are":

One reason that the system is so badly out of whack is that the criminal justice system is viewed, even by law students, as a tool to protect not only our safety, but also "our collective morals." The protection of our collective morals—the mythical province of aspiring theocrats—leads to the condemnation and prosecution of conduct that threatens our safety only tenuously, if at all.

But can't a prosecutor help bring the system back into balance? Well, prosecutors don't make the laws or set the punishments. They just enforce them. And those making the laws and setting the punishments aren't listening to those prosecutors who are telling them to back off; they're listening to the pollsters who are telling them to play to the fear. Prosecutors—especially new prosecutors—have to play by the rules that their bosses set, and those rules don't often include disregarding the laws that shouldn't be.

I've said before, if you see the high ground, take it. That is, if you have a clear vision of your proper role in the criminal justice system, don't go mucking around on the other side. But sometimes the terrain is misleading, and what looked like high ground turns out to be swamp.

Rick Horowitz is probably not the only criminal defense attorney who's drowned on high ground. This past week, he eloquently described the parallels between earning a Boy Scouts Lifesaving merit badge and defending the accused, and how he continues to learn hard lessons:

There may be lots of situations in which a life needs to be saved, but the Boy Scout Lifesaving merit badge focuses on saving drowning people. One of the things you learn is “[h]ow rescue techniques vary depending on the setting and the condition of the person needing assistance.” Along the way to earning the badge, you have to “[e]xplain the importance of avoiding contact with an active victim and describe lead-and-wait tactics.”

As a criminal defense attorney, I’m having to re-learn these things.

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If you get too close, a drowning person will latch onto you with all the fierceness of, well, a drowning person. They will fight to pull themselves up by pulling you down. They will grab you and they will not let go. They will not be thinking that they do not know how to swim and you do. They will not relax. They will not let go. They will not allow you to do what needs to be done.

Your job is to try to save them, without being drowned yourself. You must learn how to approach.

One of the tricks is to move rapidly towards them, ducking underwater (and thence out of their reach) just as you approach. Grab the drowning person’s legs and try to turn them so that they are facing away from you. You can’t let them get too close when you are face-to-face, because they will try to grab you and both of you will go under.

Then it will be a fight to see who, if anyone, is coming out on top.

As a criminal defense attorney, I’m still learning that last trick.

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This week, I did not dive under quickly enough. I let myself get too close. For one thing, I became intoxicated over the fact that I managed to muscle my way past the sharks circling my target. I got into a closed police station and stopped an interrogation before it started. This does not happen very often.

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But I forgot that getting through to my drowning client was just part of the job. I made it past the sharks, but I still had to get him to shore. I forgot to turn him, so that he could not grab onto me and drag me down with him. His family screamed from the beach. I let them distract me.

Here is where the analogy breaks down a little bit, but not completely. The drowning person believes he knows how to save himself. His family believes he knows how to save himself (and that they, too, have some good ideas about it).

If I were drowning, I'd be grateful to have someone like Horowitz swimming through sharks to rescue me. I understand enough about the "justice" system to know, however, that if I'm left to rely on the system, it's more likely to be someone like Jerry Guerinot tasked with my rescue. Guerinot is legendarily unsuccessful in "defending" those accused of capital crimes in Texas; he's colloquially known as the state's "undertaker". It is one of Guerinot's clients, Linda Carty, whose case was noted this week by Charon QC:

I don’t know if Linda Carty did or did not commit the offence for which she will be executed in Texas shortly – but it does seem to be clear:

(a) That Texas has broken the agreement relating to British citizens by failing to inform the British government when legal action is taken against British citizens

(b) That Linda Carty is a British citizen by virtue of her birth in St Kitts

(c) The original trial was flawed in several ways – her conviction resting on testimony of co-conspirators who testified against her to avoid execution themselves

(d) That Jerry Guerinot, the defence lawyer, has landed 20 clients on death row, more than any defender in America (The Times) and that he only met Carty for 15 minutes before the trial. It appears, astonishingly, that he failed to cross-examine prosecution witnesses.

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The problem is that, as I suspect is the case in Britain, the quality of legal representation is both excellent and bad in the United States. This is a common problem with many sectors – unfortunate thought it may be. It would seem, from remarks in a leading US newspaper (above), that Linda Carty drew a short straw and ended up with one of the bad ones. Unfortunately – this is not a matter of a poorly executed conveyance, if you forgive the deliberate metaphor – this is a matter where a woman will be put to death by the State of Texas. If the trial and legal representation was flawed – it should not be a matter of our prime minister appealing for clemency – the entire trial should be be set aside (assuming there is provision for appeals of this nature – and if there isn’t, perhaps there should be)

If the trial was fair, the legal representation to the standards expected of lawyers in the United States, then it becomes a matter of investigating the breach of the agreement between Britain and the United States as to why our government was not informed. If that has been breached – is the trial even valid in law? I don’t know the answer to that one. Assuming that argument to be a non-runner (in which case why bother having agreements between the United States and Britain on such matters) it becomes a matter for the United States to consider the value they place on our relationship with them should Cameron make an appeal.

Charon and I are friends and as friends we differ in our views on capital punishment — he opposes it unequivocally and I do not. Nevertheless, even as a moderate supporter of the death penalty I am troubled by the issues in Carty's case. Capital punishment is morally-distinguishable from murder not because of its state sanction, but because of the considerable procedural and substantive safeguards in place to guard against its misuse; where those safeguards are diminished de jure or de facto, capital punishment cannot be countenanced, regardless the heinousness of the crimes sought to be punished.

Even in a much more perfect system than ours, however, the best safeguards and the most honest and conscientious police and prosecutors will sometimes fail; in such circumstances, we must willingly remedy injustices even where, procedurally, everything was done by the book. Procedural efficiencies should not be permitted to trump substantive rights or to thwart the ends of justice.

Was there injustice done in Carty's case? We need to know. If we examine her situation because she's a British citizen and Texas failed to abide by international agreements concerning criminal prosecutions of foreign nationals, so be it. Then let's find an excuse to take a hard look at the next capital case and the one after that. We need to know — in every case.

Header pictures used in this post were obtained from (top to bottom) Carbolic Smoke Ball Co., NYDailyNews.com, Fox4KC.com, and Paris Odds n Ends Thrift Store.