JUST MUSING: “No longer a chameleon” …

 

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My participation in the practice of law spanned a generation, providing witness to the overt takeover of the American judicial system.  I am not sure whether my use of the word, generation, is a proper one, at least as I read the dictionary definition of the word.  I use the word anyway, to describe a period of time when the judicial landscape changed.  The change has taken different forms, chameleon-like, adapting, and camouflaging – at times hiding its true nature; incubating, forming, perfecting itself in the federal system prior to spreading to the state courts.  A change guided by organizations such as The Federalist Society, nurtured by the thinkers (in papers and seminars); grounded in fear and exclusion.

During this generational change, the Supreme Court instructed the lower courts to dismiss more cases in the early stages of litigation.  Over time – on the ground level – the less advantaged litigants had a lesser chance of having their cases reach the trial level, while the advantaged continued business as usual.  None of this means the system was broken-broken – just broken – particularly for those who needed the judicial system the most.

So we are clear, please do not dismiss this musing on bitter, bitter man grounds.  Remember, I practiced for close to forty years, representing both the advantaged and disadvantaged.  One does not participate in a system of justice if bitterness is your guiding principle, particularly if one desires to survive.  One has to believe, and I believed, in the durability of the American system of justice, even while states executed more men and women, even when the rights of workers were interpreted in a more narrowing and restrictive manner, even while the Court admonished Congress that it didn’t understand what it was doing, including dismantling fundamental privileges such as voting.  I believed, and still do.  I started practicing law in 1978; a period which included the Reagan/Bush revolution – molding a dramatic and fundamental change in how the federal courts viewed the least of us.  Bitterness was one of my choices, or maybe even being fearful.  I hope I have not; I hope I was not; I hope I did not.

Justice Scalia’s death served as a reminder that he was unabashedly a part of the revolution, honestly professing his role in the revolution.  Justice Scalia served on the bench from September 26, 1986 to his death on February 13, 2016; a period in which included:  the American public was gifted secret courts (the only persons allowed in the courtroom are the judges, the government and its lawyers and no one else); the Foreign Intelligence Surveillance Act of 1978), the concept of indeterminate detention (“without charges, trial or hope of release”); an unprecedented attack on the historical role concept of attorney-client privilege (spying on counsel and the establishment of special rules for counsel attempting to represent those accused of terrorism); the establishment of a unique rule of equal protection (a rule applied in one case and only one case and never to be cited as authority (Bush v. Gore).  Justice Scalia’s scolded the rest of us to get over the changes, and move on.

After the press reported Justice Scalia’s passing, the initial debate was whether the President had the power to appoint a successor in the last year of his term.  No matter that the Constitution reads, “shall” appoint, the argument was the President didn’t have the right to appoint.  After a few days of thinking about the unconstitutional nature of the argument, the argument morphed slightly – arguing that there should be no appointment to protect the public. Currently the argument has morphed backward once more – avowing not even to consider any appointment.  One commentator recently postured that the anger was because Scalia’s death signaled the end of their revolution.

During the nearly four decades I practiced, I listened to opposing counsels’ brag that “you will not survive summary judgment and even if you do the appeals court will protect us.”  They understood the change in the landscape.  A revolution recognized by most – except a clearly identifiable subset – they seemingly didn’t get the memo.  While the disadvantaged, the poor, the non-corporate client still believed in Atticus Finch, that the world was fair, the rich, the corporate world, the advantaged, understood differently – reading a different a memo, knowing full well justice applied only to a privileged few.  By 1985 the anticipated changes of the bold new world were clear.  By the early nineties, the revolution was in full stride.  The moderate members’, in the lower courts, judicial philosophy was the equivalent of conservative philosophies of generations past; conservative appointments became more conservative, conveying utter contempt, as if the whole civil rights thing was a mistake.  For a period of time, politicians remained convinced the use of the word liberal, or even being considered liberal, was deemed profane.  Those of us representing the less advantaged salved our wounds by convincing ourselves that being persistent and somehow make a difference, as if holding the fort somehow equated to providing the clients’ their cup of justice – in manner and mode we were told that it was not.  I laid witness to the court reversing ten cases in a row, reversing and rendering for the defendant (render means the verdict was changed from one party to the other).  Each verdict averaged $250,000.00.  While arguing the tenth case, clarity shorn brightly, reflecting off the marble walls.  After thanking the Court for the opportunity of appearing – the presiding judge immediately interceded, cutting off my presentation.

“Welcomed back Mr. Griffin; how did you fool the jury this time?”

I spun, spun, spun in place, while attempting to hide my shock, wondering how the words of “his honor” comported with fairness.  I grabbed my vocal cords, held tightly onto the podium, successfully preventing a full break of words and emotions, while attempting to explain I did not fool anyone.  Approximately seven minutes into my argument, the panel turned their seats away, while I argued to the back of their chairs.  They continued to stare in the opposition direction, ignoring my presence, long after they had stopped paying attention to my words.  I spun, I spun in place.  The point had been made – their point had been made.

Every time I exited the Fifth Circuit, I always marveled at the beauty of the structure, soaring ceilings, majestic lighting, and grand entryways.  On some occasions I visited the Clerk, putting a face to the voice, and before leaving acknowledging the guards, wishing them a good day, but on most occasions, I exited spinning.  From the threshold, to the sidewalk, to the awaiting cab, worrying and wondering.  From the cab to the airport, vowing to redouble the effort, while practicing the speech to be given to others (the office, at seminars, in classrooms) – wanting to believe – continuing to believe.

The revolution played out while the public continued to read the wrong memo, had no idea of the role of The Federalist Society (or like organizations), looking asunder when anyone attempted to explain, even casting the universal sign of disdain – the evil eye:  In Arabic, ʿayn al-ḥasūd’ (عين الحسود‎ eye of the envious), in Hebrew, ʿáyin hā-rá (עַיִן הָרַע‎), in Aramaic, ‘ayna bisha’ (ܒܝܼܫܵܐ ܥܲܝܢܵܐ‎), in Kurdish, ‘çaw e zar’ (eye of evil/sickness), in Persian, ‘chashm zakhm’ (چشم زخم eye-caused injury) or ‘chashm e bad’ (bad eye).  Not to be outdone, in Turkish the sign is referenced as ‘kem göz’ (evil eye, usually used in plural form as kem gözler, evil eyes) or Nazar (nazar is from the Arabic word, نَظَر Nadhar, which means eye vision or eyesight), similarly in Urdu the word ‘Nazar’ (نَظَر) or ‘Boori Nazar’ (bad look) is used. In Punjabi the words ‘pehri nazar’ are used. In Hindi the concept of evil eye is referred to as “Drishti”, in Amharic, buda, in PashtoBado Stergo, and also “Nazar”.  The Greeks say, ‘το μάτι’ (to máti).  In Albanian, ‘syni ke’q (or ‘syri i keq’), Romanian as ‘deochi’, and in Spanish as ‘mal de ojo.’ [I]n Italian say, ‘il malocchio,’ the Portuguese ‘mau-olhad’o (“act of giving an evil/sick look”), the Swedes, ‘ge onda ögat’ (to give an evil look), and the Hawaiians, ‘stink eye’ or maka pilau meaning ‘rotten eyes’”).   As the years passed, the stink eyes … rotten eyes … evil eyes … mal de ojo haunted me,  spinning, spinning, spinning me, challenging my beliefs, never fully stopping me in place.

*          *          *

I didn’t know Antonin Nino Scalia personally.  I have never had a personal conversation with him, as I have had with Justice Brennan (discussed in other writings), Justice Ginsburg (I’m not telling), and Justice O’Connor (again, I’m not telling).  His body build reminded me of my grandfather Edward’s build.  Edward was a cigar smoking, stout man, prone to speaking gruffly; always, always touting his superior intellectual wit.  I don’t know whether Justice Scalia smoked cigars, but that matters not, his physical characteristic were Edward’s, down to the thinning windswept hair.  Their physical beings only distinguished by the hue of their skin, and the generations separating their deaths.  My only involvement was from afar; when reading and studying the revolution; while trying to distinguish his position, trying to convince myself the Court didn’t mean what the Court meant.  I did experience Scalia’s gruffness, and intellect when arguing the case of Santa Fe v. Doe.  Sure, I anticipated Justice Scalia would ask more questions than other Justices.   Absolutely, I studied his judicial philosophy, and understood the skies would have to part, the stars would have to properly align, and all the Gods would have to intervene in order for Justice Scalia to reverse his previous position surrounding prayer in the public square.  The skies didn’t part, the stars didn’t align, and the Gods didn’t intervene – Justice Scalia remained ensconced in his position.

After we prevailed, I received an unanticipated call.  The call was initiated by Justice Souter, to Nadine Strossen, President of the American Civil Liberties Union, with Nadine then conveying the Court’s message my way.  The purpose of the call was to convey the Court’s collective assessment of my argument.  Before Nadine’s terminated the call, as an aside, she remembered something else, “A member of the Court, who wants to remain anonymous, wanted to convey, “If I ever get in trouble, I’m calling that son of a bitch from Texas.”  I immediately knew the source of the anonymous message.

During the argument, I watched and participated in the interaction between Justices Stevens and Stevens.  They sat less than ten feet away, engaging in a private exchange.  Stevens teased Scalia about his inability to move me off point, to make me spin with doubt and wonderment.  While Justice Ginsburg questioned, Scalia turned to Stevens, “I will get him, I promise.”  They both smiled, nudging each other, as if revisiting their youth – at the movies – together, reveling, sheer enjoyment.

Scalia didn’t get me and when he didn’t Stevens resumed pulling, tugging, and teasing; I internally thanked the Gods for my upbringing in a large family – being able to talk, listen and engage in multiple conversations and exchanges while paying attention to Momma’s instructions.

*          *          *

I muse because we have become hypocritical cowards, willing to bend the Constitution for the purpose of winning, no matter what, even if it leaves large swaths of the society behind.  Our hypocrisy allows us to ignore history then and now, ignoring we were a small step away from splitting the union after Bush v. Gore.  If not for the grace of Albert Gore’s concession speech, “for the stake of the Union”, our historical arrogance could have well spelled our doom.  Our cowardice has created judicial doctrines grounded in fear, making us less diverse, less inclusive, scarecrows without hearts.  We have seen tort reform play out, abating, aborting, retarding remedies.  In some cases, rights have been washed away in all respects; protected by imposing burdens of proof – causing trial lawyers to bend their necks backward and then upward.  The Star Chambers, from days of yore, has now appeared on the edges of our shores, the water now cascading across the landscape, spilling into our courts.

I muse to say, the President should make the appointment, and fill Justice Scalia’s vacant seat.  The Senate should confirm the appointment.  In our current state of hypocrisy, all the Gods in the universe will not be able to save us from ourselves if fate deals us an unfortunate and unforeseen hand – multiple, relatively simultaneous deaths on the Court.  Do those who peddle the philosophy of fear turn up the ante, now take control of the soap box – situated in the public square – and demand a change in the Constitution denying, whoever may be the President, the authority to act?  How much more weigh can the box credibly withstand?  While we continue to dance with the devils of contempt, the flood waters continue on her unpredictable course.  Absolutely Justice Scalia would want the intransigent revolution to continue, ignoring that he wouldn’t have ever been appointed if calmer heads had not stepped back, realizing the union could well survive “Nino too.”

The water flowed from sidewalk to gutter, washing away dirt and grime.  It felt as if hope too escaped into the gutters as the Republicans on the Judiciary Committee vowed to not consider any appointment by the President.  Hope slowed washed away.  The traffic flowed, meandering, slowing; allowing time to collect my thoughts.  The cab driver seemed oblivious to the workings of the Court, the fine cracks at the base of the building, now fissuring.  I wanted so much to change the conversation and tell her about the memos not seen, but I didn’t.  I wanted to point to the cracks, but I didn’t.  “Time” … “The pendulum of justice” … “This too will pass” – formerly words of hope, now converted to words of foolery, silly, silly man was I.  “A balancing act” … “You have to continue to participate, continue to believe” – have become apparent lies.  The zero sum game now played makes their exclusionary revolution seem starker, dramatically more offending, terribly insulting – showing their real intent, a willingness to strap the constitutional test to their bodies and blowing everything to smithereens – no longer the chameleon, no longer camouflaging their real intent.

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JUST MUSING: “My Kryptonite” …

Subtitled for prosperity’s sake:  sprinkling chunks of an unknown matter … about, about, about … in my head …

Recently, Michael J. Kennedy, a well-known criminal defense lawyer died.  Michael represented both the nefarious, unpopular criminally accused, as well those imbued with wealth and fame.  When I first met Michael he had offices in both New York and San Francisco and possessed a certain swagger, a swagger which followed him into any a room, meeting or courtroom.  His air of confidence was not at all insulting, pompous or overbearing.  He controlled any particular setting, with an urbane sophistication I could only dream of possessing.  I was a young trial lawyer then, learning the profession and honing my skills at the same time.  Michael probably saw my promise, one day contacting me to tell me of a meeting.  I appeared.

During the meeting a suitcase full of cash was pushed across the table, “from this point forward you are requested to represent our interest.”  The speaker continued, “Your fee will be $75,000.00 a case.  You will be allowed two months of vacation.   You will be expected to show up in any city in which you are needed, St. Louis, Memphis, Houston, Los Angles, New York, any city.” The voice of the person who pushed the cash across the table remained calm, watching, while others in the room stared.  “Your fee will grow with experience and results.”  Fee levels were given:  “$125,000.00; $150,000.00; $200,000.00; $250,000.00.”   The speaker mentioned the names of lawyers, tying their names to the amounts mentioned.  I guess this was done to provide an outlook of future wealth.  Of course, the then supermen of the profession were the ones occupying the higher pay grades.

I didn’t take the money.  The unexpected discussion required an instant decision.  If you are now worried, please don’t be, I didn’t insult anyone by my decision.  I was Southern gracious, “Thank you for considering me.  I will have to decline.”  Some of those lawyers present in the room may still question my sanity.  I can still hear their shock when I refused the cash (whispering, rustling, commenting), layered with diverting eyes.  As the called meeting came to an end, I wondered whether the derision was because of their knowing that I now knew they were on a payroll, or perhaps because of the insanely stupid decision I made.

Michael didn’t attend the meeting, never questioned my decision, remaining forever gracious, while still insanely preparing for the joint defense.  One particular Saturday he asked that I cross-examine his client in a practice session, to provide some sense for the client of what he faced if he testified.  After the practice session, a decision was made not to testify, “His exposure is too great.”

Michael Kennedy was white boy handsome (meaning every group has individual standards of beauty, sometimes the standards are mutual, crossing other/all groups), culturally imposing, University of California Berkeley articulate – all characteristics seemingly cast from the Hollywood studios of day’s lore (or maybe even today).  He was the profession’s prototype of a trial lawyer, easily accepted as one to cherish, comfortably situated at the top of the mountain.  In the same breathe – any trial lawyer would readily recognize that if he/she was on the other end of an adverse verdict, such would be understandable – “Up, up in the air.  It’s a bird.  It’s a plane. It’s Michael J. Kennedy.”  But I digress – Michael J. Kennedy was not my kryptonite and he is not the reason I muse. He is only an apt-discussion point, a contrast, explaining that sometimes our individual kryptonite is oft-times unexpected, unanticipated, and an unexplainable phenomenon.

*     *     *

John H. Crooker, III was a short man, let’s say – five feet at most.  He was small, say,   ninety pounds.  His voice was a gravelling yell, he always yelled – maybe because he couldn’t hear a damn thing – at least he pretended not to hear.  My research tells me he was the son of one the State Bar’s iconic members, John H. Crooker, Jr.; one could never tell by looking at Crooker, III.  I have never met his dad, and unless he was the same size as his son, Crooker III was the runt of the litter.  John Henry Crooker, III had no shame; he constantly played with his upper and lower bridge, moving it in and out of his mouth.  If he wasn’t prepared he blamed you.  If he hadn’t given you discovery, he still blamed you.  Out of sheer frustrations, if you finally cornered him, he would throw his small hands up in the air, reach in his bag and pulled out the entire file out, including attorney-client privilege documents, and give it to you!  “You copy”, would be his words as he turned and walked out.  “I will be back in three days to get my file.”

He invaded my personal space when talking, moving much too close, spitting, actually spitting, looking up and into my mouth.  He was prone to strange admissions, once asking me, his opponent, how to do something – a procedure – while pointing to the spot on the document he wanted me to sign, in the same case.  My – “I am in a meeting” – also ignored.  My – “You can leave the materials with the staff,” was also ignored.  Strangely, every interaction nipped at my energy, my resistance.

Mr. Kryptonite moved in an oblivious manner, ignoring others’ astonishment, with crooked smile, raspy laugh, much too loose dentures, while conducting his business.  The world was his oyster, a strange world at that.  Staff members normally followed him after his unannounced appearances, telling him he needed to obtain an appointment.  He met their statements with a request for something to drink, while sitting down to catch his breath, then talking about what he wanted to talk about, as if they were interrupting him, and not vice versa.   I can’t tell you how old he was – just accept my adjective, “old.”  I remember a smallish, old man, one prone to screaming and removing his hearing aid when he disagreed with you or when he didn’t want to hear what you had to say.  While Ichabod Crane is a fictional character in The Legend of Sleepy Hollow, first published in 1820, there was nothing fictional about this Ichabod.  The character in the short story was tall, exceedingly lank with narrow shoulders, long arms and legs – my breathing and then-living character was short everywhere, while sharing the only one characteristic with the fictional Ichabod, exceedingly lank/thin everywhere.  When told his behavior was inappropriate, he couldn’t/wouldn’t/refused to hear you, went back to adjusting his teeth, disgusting everyone within sight.  Please dont let this man take those things out and ask me to hold them.

His behavior transferred to the courtroom, fearlessly leaving his table, walking about the courtroom as if on a stroll, standing over your shoulder, prying, looking, picking up papers he had no business looking at, while the jurors laughed, the judges smiled – hell, even my clients were amused by his behavior (“Is he serious?” “This is an act right?”).  His behavior worked to scatter slight bits of kryptonite throughout the courtroom sapping my remaining arrogance, stripping away any remaining belief that I could scale the highest building in a single bound.  I cant hit him, it would kill him.  I scream too long, too loud, the jury might turn against me.  I like others found myself turning to religion in those times of distress – Help me Lord; Help me!!!

Let me make some admissions to make clear why I muse.  Trial lawyers love predictability, meaning – what are the rules of the fight, what is admissible, how will the judge and jury react to our facts.  Trial lawyers are control freaks, meaning – whether they will admit it or not, the fight seen in a courtroom is a fight over the message, control.  Trial lawyers have egos, not an astonishing admission, but a necessary admission.  The trial lawyer must have a sufficient sense-of-self which will allow him/her to take on matters others would consider suicidal, impossible.  And most importantly, in the exercise of his/her craft, the trial lawyer possesses every possible personality disorder known to humankind (see Diagnostic and Statistical Manual of Mental Disorders 5th Revision (DSM-5) – odd, bizarre, eccentric, paranoid, schizoid, dramatic, erratic, antisocial, histrionic, narcissistic, anxious, fearful, and obsessive compulsive.  A bewildering mental dance, bordering on insanity, played out in a controlled environment (the courtroom), while fighting against the confines of a known and unknown world.  This latter admission is something trial lawyers will never admit:  I ain’t anymore – so I have.

I muse to say, all of us, have weaknesses – our kryptonites – matters which prevent each of us from becoming and/or retaining, inching closer to our optimum level, or even remaining at a superman/superwoman level.  The persistent challenge of life is identifying our individual kryptonites.  An uncontrolled, little mean man, who screamed much too much, while violating all the social and legal mores, pretending he couldn’t hear a word, while extending his hand, with saliva still in place (from playing with those damn dentures), was mine, my kryptonite.  Help me Lord.

No, it wasn’t who he was, what he looked like, or how many times we tried cases against each other.  He beat my Samson-sized-ass as if he was creating his own book of faith.  Sling shot be damned, he didn’t need it.  The griffin, as a mythical creature, king of all creatures – ha!  The jurors I worked so hard in selecting, their mouths involuntarily flew open, while he adjusted his teeth.  I watched as they spanned a range of emotions – laughter, sadness, pity – while looking, looking, looking, first in his direction, then the Judge’s, then mine, waiting for a reaction.  He grabbed their attention by a vulgar display of unconventionality, and there was nothing I could do.  Do something you say – oh, no, not me, I was grandparent imbued with respect your elders training – he looked like my elders, and I remained respectful, wedged to my seat as he whipped me as those elementary teachers did when I strayed.  I dared not revisit that portion of my life.  Paddle in hand, arms fully drawn back, back, way back, putting his entire weight into the swing, he did, yes, he did.  He wandered and walked – as if dementia had touched him, audibly gurgling, followed by an uncontrolled “aw” coming from the jurors’ mouths – seeing their parents, grandparents, themselves – fighting against a black man on the other side of the courtroom.  He grew bigger and bigger with every action – the pain from the paddle was unbearable, never was I to do wrong again, never to dare challenge his ways.  I would have held his dentures in my bare hands, if he had asked, and then licked my hands if I could only escape the punishment being administered.  I felt like I was growing blacker by the moment – Willie Horton black, O. J. Simpson black, southern lynch mob black – black, black – with Mr. Kryptonite sprinkled chunks of an unknown substance about the courtroom, … in my head.

*     *     *

With Michael Kennedy’s recent death, as with the death of people who have crossed our life-paths, visions of the roads previously travelled played out.  While walking and reading, I admired Michael’s work, but strangely I didn’t see the face of Michael Kennedy.  John Crooker, III, appeared instead, smiling with his wickedly crooked, now toothless smile, couple with an unhealthy laugh, choking, containing a painful wheeze – all done from his grave – asking, inquiring, imploring, poking –  “Don’t you think you should have taken the offer to work for the mob years hence?”  I guess you’re right, Mr. Crooker, I could have avoided those unpredicted whippings administered. But then again, Mr. Crooker, I guess not, others would have been deprived of the laughter and joy emitted because of the unexpected, unpredicted, inglorious beatings I took while I sat with my mouth agape, wondering, wondering, wondering, why me!

So I muse …