Hillary vs. Trump: Some Random Reactions
September 7, 2016 § Leave a comment
The Difference Between Approval and Advocacy
A recurring theme of my life as a trial lawyer and a political activist is the separation of my personal beliefs and standards of morality and integrity from those clients and politicians for whom I have worked. One anomaly of our culture is the general understanding that a doctor’s treatment of a patient is not presumed to imply any support or agreement with the personal habits, morality or beliefs of the patient. But lawyers and political organizers are often presumed to share those qualities with the politicians and clients they represent. To me, this is an irrational distinction.
I once was invited to address a college class. I talked about some of my work. I invited questions afterward. One persistent one was: “How can you defend someone you know to be guilty of a crime?” “If you don’t belong to any organized religious denomination, does that not leave you with no moral guidance?”
In other words, these young people had successfully completed a public education and some college study without learning anything about the fundamentals of our secular society based on our Constitution. They apparently knew nothing about the adversarial principles on which our criminal justice system is based. And, far more important, some of them believed our society consists of those with religious faith and a remainder consisting of libertines.
As I watch and listen to the present political debates I realize this ignorance deeply affects our political system.
The Bankruptcy Issue
I detest almost everything related to Donald Trump: his arrogance, his mendacity, his willful ignorance, his encouragement of every aspect of the racism, bigotry and sexism endemic as a disease in our culture.
What I don’t share is the repetitive mention of his multiple bankruptcies as evidence of his recklessness and dishonesty. I can trace my reaction to some episodes in my past.
When I was trying lawsuits for a living I did not discriminate against wrong doers and clever schemers who used their superior knowledge of the law to cause damage to others. I never facilitated their nefarious activities. I never lied to courts or other lawyers to protect them. I never knowingly permitted them to perjure themselves on the witness stand or otherwise under oath (e.g. as in depositions). But, if they obeyed my instructions and made satisfactory arrangements to pay me for my work, I enthusiastically defended them in court. My only exceptions were murderers and child molesters: The former because I did not want the responsibility for the life of a client; the latter because I knew I could not put my feelings aside and do a proper job of defending them.
When I was hanging out in courthouses, there was a type of East Texas sharpie who made a handsome living exploiting loopholes in the law. One was a person who analyzed the descriptions in land titles to find instances where there was a gap between the legal description of a tract of land and the legal description of an adjoining tract. The result was a piece of land that was not legally conveyed to anyone. It was called a “variance”. If the gap was located in the middle of land leased to oil companies where oil was being produced, the schemer would acquire title to the “variance” part and then sue to claim a portion of royalties paid to the other record owners.
One of the first times I went to court was as co-counsel with Ralph Yarborough in a case in which we represented one of these guys. We lost, but neither of us had any qualms about doing our best to defend him. Judge Yarborough, as I called him then, based of his short tenure as a district judge, had represented this client in previous legal matters.
Several years later, I represented a different type of East Texas character with similar but different ways to exploit the law. The fellow had a portable drilling rig. He hauled it to Columbus, Ohio, obtained a lease on some land, and began drilling for oil or gas. He invited local people to invest in this enterprise by advertising his effort and holding bar-b-ques and other kinds of public events on some land he rented near Columbus. Many of the local residents, who had never seen anything like the kind of show this guy staged, eagerly invested in his project. He was charming and his Texas accent and swashbuckling style was a big hit.
The drilling ended with a dry hole and everyone lost their investment. He loaded up his equipment and hauled it back to Texas without paying for the drilling costs and material he had obtained on credit. So, the suppliers who were stiffed brought a fraud suit in federal court in Houston. I represented the miscreant.
When I went to Columbus and deposed some of the local investors I was surprised to learn they still recalled with relish their adventure with the “Texas oil man”; regaled me with stories of how much fun they had and expressed concern about the suits. I also deposed some less enthusiastic victims of this failed enterprise.
When the case went to trial before a federal judge in Houston, I established that the corporation to which the subject unpaid-for items had been sold was a separate corporation with no assets. When that became apparent, the judge interrupted the proceedings and asked the lawyer for the plaintiffs: “Didn’t your clients consult Dun & Bradstreet or some agency to determine the credit worthiness of this corporation?” When the lawyer sheepishly admitted the answer was “No.” , the judge terminated the proceedings and dismissed the case.
My client was happy and I, having been paid for my work, was happy. I did not lose any sleep considering whether it was wrong to represent this client.
So, when I hear Trump accused of dishonesty because he left unpaid workers, suppliers and others unpaid when his casinos in New Jersey went bankrupt, I have no standing to shame him. I don’t know the details, but I suspect he was not foolish enough to make himself personally liable for those debts. So far as I know he merely used one of the basic pillars of capitalism: It’s perfectly all right to cheat people if you are smart enough to utilize corporate limited liability laws and the bankruptcy laws to do it. There are plenty of ways to remedy this problem but, until we do, we can’t complain when capitalist pirates use the system we have.
The Criminal Cases
I did not specialize in criminal law, not because I didn’t like it, but because most of the people I worked with, union workers and staff members, were not criminals. Their offenses were drunken escapades, strike violence episodes, family violence episodes, and other kinds of misdemeanors and non-lethal felonies. Most of them were settled with plea bargains. Some did go to trial and I had a pretty good record. I don’t recall any innocent defendant I represented but our legal system is designed to permit conviction of a crime only if all constitutional safeguards have been satisfied.
The system is, correctly in my opinion, based on the principle that guilty persons escaping punishment is preferable to allowing innocent persons to be found guilty based on unpopular conduct or overzealous prosecution. In recent decades, as a result of some very dangerous Supreme Court decisions, this fundamental principle of criminal justice has been severely weakened. I am hopeful some future legislation and appointments to the Supreme Court will undo the damage done to the safeguards against lynch law justice.
I suppose some may regard this post as a confession but I offer it as an effort to call attention to efforts to mislead Americans about the Constitutional protection that protects us all. This is important because the common law of stare decisis as applied to our legal system means that every time the Constitutional safeguards against unwarranted criminal prosecution are weakened, the loss of those safeguards applies to all of us, not just the individual whose case occasions that loss.