I’ve a brand-spanking-new lawyer reporting for duty this week. Freshly minted and admitted to the bar, she’s eager to show the world what she can do. I need her to help stay atop the chaos that comes of representing people in crisis. But how can I prepare her for what she’s about to see? She’s been trained about a world peopled with rational actors, folks who make cost-benefit decisions, who bargain in the law’s shadows. Nothing in her education prepared for the world most lawyers call home – the world just this side of crazy.
The law deals easily with those who are out-and-out insane, or with those who lack the competence to deal with their own affairs. In the criminal courts, a defendant can be found not guilty by reason of insanity if he or she lacks the ability to control their conduct in conformity with the law, so-called volitional insanity. Similarly, a person who cannot understand the difference between right and wrong can be deemed insane, so-called cognitive insanity. Few defendants are adjudicated insane, although I suspect far more defendants that we realize are, in fact, well beyond th reach of reason’s shadow.
But the insane, I say, are the easy cases.
So, too, are the incompetent.
Paradoxical as it may sound to a lay person, it is possible to be incompetent but sane.
In the criminal courts, a client is incompetent if they are unable to understand the nature of the charges against them, or if they are incapable of assisting in their own defense. A client who does not understand the nature of the charges against him may well be insane. But what of this business of assisting in your own defense? This is where the line between the irrational and rational becomes blurred. Everything is a matter of degree, and, although lawyers are supposed to be able to recognize the difference between a competent and incompetent client, nothing in a standard legal education prepares a lawyer to make such a judgment.
A client presented in criminal court on serious charges is a client in crisis. To what degree does the episodic stress of standing on the threshold of ruin yield confusion, rage, crippling fear? To what degree did underlying and pre-existing confusion, rage and crippling fear lead the client to engage in the conduct that resulted in his or her arrested? This difficult question of causation is at the very root of the difficulty a lawyer faces in determining whether to ask the court to order a competency evaluation.
But how to maintain the confidence of a client while asking the court to order a psychiatric examination? You don’t inspire trust by questioning competence. The essence of a thought disorder is such that the person who suffers from it doesn’t see or feel how bizarre their thought process has become. When is a client merely idiosyncratic but competent? When does an idiosyncrasy sink the boat of reason?
Many years ago, I represented a man on a larceny count. He claimed it was urgent that our office contact the CIA. He was a registered informant and had information the government had to have, or so he said. Delusions about the CIA’s ubiquitous role in the world, and of its ability to exert control over events, is far more common than most folks might realize; hence the dark humorist’s quip about the spy’s monitoring device implanted in his molar. When this client refused to talk about his case unless and until the CIA were called, my firm moved for a competency examination.The client was whisked off to a forensic facility for an evaluation. It seemed like the right call at the time.
Imagine my surprise several weeks later when our office received a call from the Department of Defense, not the CIA, asking about the client. It turns out he was doing undercover work of some sort for the government. I was not surprised to learn that the client was later deemed to be competent. Was the man unusual, even odd? Unquestionably. But he was neither incompetent nor insane, he was just a part-time mole for the feds.
Psychiatrists and social workers have a vast vocabulary to describe folks just this side of psychotic, but disturbed nonetheless. Consider the so-called character disorders: there are borderline personalities, sociopaths, histrionics, and on and on goes the list. Each disorder bears a cognizable thumb print, some set of behaviors or thoughts that represent a departure from the rational man or woman lawyers are taught to counsel.
What to do with a client who insists on inconsistent objectives and then blames you for not accomplishing the impossible? Or the client who needs to create a sense of crisis to feel alive? Or the person who tells you they understand you when you speak, but steadfastly refuses to help themself, but, instead, engages in self-destructive conduct? My hunch is that a significant portion of the cases in criminal courts are really reflections of underlying psychiatric disturbances the law is not nuanced enough to address. We imprison mentally ill people and call it justice.
The law’s dramas take place just south of crazy.
"You sound jaded," my new lawyer said the other day as I tried to prepare her for what she’ll see.
"Not at all," I responded. "I’ve just been around for a while."
I wish I knew where to send this new lawyer for training on how to recognize and cope with the needs of folks a few degrees away from whatever it is we call normal. I wish I knew where to go myself. We refuse to train lawyers on the role of the irrational in our courts. So much the worse for the law; so much the worse for our society.
F. Lee Bailey appears this week before the State of Maine Board of Bar Examiners to request permission to once again practice law. I am rooting for Bailey. He’s been disbarred now for more than a decade. If he wants to return to the trenches, we should welcome him back. At 79, he’s still sharp as a tack.
Francis Lee Bailey, Jr., is a name known to all lawyers, and to most of the American public. He hit the ground running after his admission to the bar in 1960. He served as a jet fighter pilot in the United States Marine Corp., and, endearingly enough, walking out of Harvard to join the Marines in 1952. He graduated first in his law school class from Boston University in 1960.
He did not climb to the top of the nation’s criminal-defense bar; he leapt there, arriving with his brash and unapologetic defense of Sam Sheppard, his role as supervising defense attorney in the My Lai Massacre court martial, his representation of Patty Hearst, and a star role in dismantling Mark Furman in the O.J. Simpson trial. He walked tall, charged big fees, and was in demand from one coast to another.
Bailey has always been, and he remains, a proponent of polygraph exams. He briefly had his own television show, on which he would administer exams to folks before the camera. He credits his familiarity with polygraphy, a skill he learned in the military as a legal investigator, with his rapid ascent in the law.
It all came tumbling down when he crossed paths in 1994 with a marijuana magnate named Claude Duboc. The government indicted Duboc, charging him with crimes and seeking to seize millions of dollars in assets. Among those assets were approximately $6 million worth of stock in a company called Biochem Pharma.
Bailey was offered a $3.5 million fee, which the government acknowledged. But if the government took possession of Biochem Pharma stock, the stocks would have to be sold immediately. A creative prosecutor asked Bailey to hold the stock, rather than take a fee outright. The government then asked Bailey to manage a couple of Duboc’s French estates and to prepare them for sale, with proceeds of the sales reverting to the U.S. Government as part of a plea deal for Duboc. It was an audacious gamble on Bailey’s part. There was no guarantee that the stock’s value would increase; if the stock decreased, Bailey’s fee would be nothing.
When Duboc got cold feet and tried to back out of the deal, new lawyers appeared to replace Bailey. By this time, the Biochem Pharma stock had increased to some $20 million in value. Bailey took the position that some of those monies, a couple of million dollars to be exact, were due him as his fee, both for his representation of Duboc and for his stewardship of assets that had tripled in value.
Soon enough, this dispute became blood sport. The government charged that Bailey had diverted Duboc’s client’s funds to his own personal use. Bailey responded that both the government and the court knew better. There were conversations in chambers before the federal judge presiding over Duboc’s case that made clear Bailey had done no such thing. It did not matter. Bailey was ordered to return money he no longer had. When he could not do so, the judge tossed him in jail, holding him in contempt of a federal court order. Bailey spent 44 days behind bars before his brother could raise the funds necessary to win his freedom.
In 2001, the State of Florida disbarred Bailey. He was thereafter disbarred in Massachusetts, where he also had a license to practice law. He’s not been permitted to appear in court on behalf of a client for more than a decade.
I’ve heard folks say that Bailey raided a client’s trust fund, and suffered the lawyer’s version of the death penalty as a result. Things are far more complex than that. Bailey is no thief.
I met the man by chance not long after he was tossed from the bar. He interviewed me to represent a businessman in a jam in North America. Thereafter, he asked me to represent a family friend charged with manslaughter. I spent several weeks with Bailey, both as a guest in his home and in Florida, where we interviewed witnesses in a piece of commercial litigation. In recent years, I’ve consulted him about complex cases, visiting him at his office in Maine, and at his home. He is a lawyer’s lawyer.
F. Lee Bailey once stumbled and fell amid circumstances that he should have been smart enough to avoid. Just how this lion of the bar found himself at the government’s mercy, relying on a prosecutor’s memory of verbal discussions, is a mystery to me. He ought to have known better. The mistake cost him his license for a decade.
He never lost interest in the law during his decade in exile. I am amazed still when I speak to him about a case: He always asks questions about issues I had overlooked. He has an unfailing memory, and a keen mind still honed to a razor’s sharpness. I am hoping that Maine permits him to return to the bar. Sure, the man has made his enemies. That is to be expected. Trial lawyers don’t worry about popularity. That is a weaker man’s game. In the high-stakes arena Bailey calls home, there are winners and losers. Losers almost always carry a grudge.
What makes Bailey a winner is that he carries no grudge. He’s been disbarred. He’s served his time. Now he simply wants to return to the courtroom. Let him.
Reprinted courtesy of the Journal Register Co.