"Injustice Is Where Hopelessness Prevails"

On Monday, I'll start jury selection in a murder case I tried for the first time last September. The jury could not agree unanimously on whether my client was justified in shooting two women who rushed at him in his kitchen. So we'll do it all over again. As is so often the case in Connecticut, I expect jury selection to last longer than the evidence. It will take two weeks to pick the jury; evidence should take six or seven days.

Preparing for this trial has been an exercise in humility. It is painful to read the transcript of your own work. I've winced, thrown transcripts aside in disgust, and tossed and turned at night trying to reconceive the trial from start to finish. A good friend has helped me by reading the transcript; his critique has from time to time stung. But I have done my best to listen. Listening is hard work for me.

What I have yet to do is prepare my client for the retrial. I am not sure how to do that. How does a man watch the worst moment in his life replayed frame by frame before strangers? How do you sit silently and still when you are attacked, scorned and ridiculed by a prosecutor? How to accept the fact that 12 strangers will now make a judgment about a split second or two they have never, and may never, experience for themselves? The answer is simple yet so very difficult: You walk them throw the valley of the shadow of death; that valley exists in each of us, just beyond the threshold of what we see.

Self-defense is a hard defense to the charge of murder. You ask the jury to conclude the killing was justified. And you do that as the family of the dead sit staring daggers into you. It is a difficult journey, taking strangers to the secret place we all harbor where killing is done not out of joy but of sad necessity.

Trial is tense, and I meet tension too often with dark humor. There is nothing funny about the death of another. But the heavy silence of a courtroom in such cases is the moment before a heart stops beating. I've turned at such moments to clients to say something to distract them from the pain. Too often we've smiled together at some inane aside.

Prosecutors have called a client or two of mine on this during their closing arguments. "The defendant smiled here as the evidence was presented. He has shown and shows now no remorse," they will intone. I've heard those comments and fumed. Does the state now claim the right to dictate even the demeanor we must show as it tries to slay us?

I'm a born contrarian and a approach the simplest of tasks in a fighting frame of mind. Hell, I'd argue with my shadow if I could get it to talk back. There has to be a better way to do just about anything, and rarely is reality the sum of that which simply appears. My favorite figure in literature remains Milton's Satan in Paradise Lost; Yes, the battle may be pointless, but the effort is all. Defiant unto death seems about the right attitude. Or, to put it another way, once I see the freight train coming, if there is no time to step aside, I'll lunge to greet it, hoping to dislodge it from the tracks. There's no point in running, and simply waiting for the inevitable. Attack, attack, attack has become a way of life for me.

All this and more flooded into my mind in an instant as I read a short piece written by Jeff Gamso this morning. Gamso is the high-priest of criminal defense lawyers writing on the life the mind as it confronts the brutal realities of the law. He attended a seminar not long ago. "Injustice is where hopelessness prevails," the speaker said. I might recast the line just a bit to make it fit my emerging sensibilities: "Despair is where hopelessness prevails." Despair is, in my view, the deadliest of the Seven Deadly sins. A criminal defense lawyer cannot despair; there is fight in ever gesture a lawyer makes in defense of a client.

But how to retain hope amid the horror of autopsy photos, tears and fear? Perhaps Satan's sin was the open rebellion, the defiant posture? Perhaps dark humor is less anesthetic than concession.

Read Elaine Pagel's The Gnostic Gospels, my friend told me this summer. "I read it years ago," I snapped, ever too eager to demonstrate my learning. What a pointless display of pride in that simple response of mine. So I reread it. The kingdom of heaven might just be at hand but never arriving. Looking outward for signs and portents is looking away from the kingdom emerging within. Looking within to find the source of righteousness is hard and painful work; pride distracts. Looking within, embracing sorrows, becoming acquainted with grief, peering with an unwavering glance into horror: these are almost spiritual exercises I must learn and somehow teach my client in the hard confines of a courtroom.

Tell me, truly, what are we taught of the care of souls in law school? The hardest truths we must learn and teach on our own, speaking with lips unclean from having uttered so many scorning and mocking words. Trial now beckons as a circle of Hell. And Hell is no laughing matter ...

Comments: (6)

  • My, my. Such grim responses. And I all tried to wa...
    My, my. Such grim responses. And I all tried to was shed some realistic light on the nature of our work. Buck up folks; if it was easy, everyone would do it.
    Posted on August 27, 2010 at 12:30 pm by Norm Pattis
  • And, I do apologize, but I mean't elegy rather tha...
    And, I do apologize, but I mean't elegy rather than eulogy.
    My sincerest apologies.
    Posted on August 27, 2010 at 11:08 am by Eric L. Mayer
  • I actually do not see this as a eulogy or as a sad...
    I actually do not see this as a eulogy or as a sad testament to justice. I see it as a statement showing that someone, once again, gains the benefit of a true advocate standing next to them at their most dire hour of need. An advocate who will find their strengths rather than wallow in their weaknesses. A friend who, despite everything facing them, will stand shoulder to shoulder.
    Law school does little to teach us of our calling It just shows us how to find the rules and laws, but compassion comes in experience. We are best served regarding law school as a building block, but nothing more. It allowed us to gain our license, but what we do with that license is a choice we must make by considering more than just the prior 3 years.
    It seems worse because you are still in the middle of the struggle. That trial is like a marathon. At mile 10, you wonder why you are doing this. You think of the pain. You think of the miles ahead. You think of the hill at mile 20 and the various smaller humps between.
    Eventually, you'll cross the finish line. You'll feel weary and exhausted. You may feel good about it, or you may feel bad. Eventually, though, you must look up at the clock to see your time. It isn't good or bad, its just your time. And nothing can change that.
    All that matters is that you know you did everything you could do. Bloody pictures are like miles. Miles are what they are. The pictures are, too. You can't change the distance in a mile, but you can set the pace at which it is run.
    I am not poetic, nor am I a genius in my field. I do, however, appreciate the struggle of our profession and all the things we do to survive it. While you do not need my validation or encouragement, I find your particular struggle compelling, and I admire your view of it.
    Best of luck.
    Posted on August 27, 2010 at 10:46 am by Eric L. Mayer
  • More a propos and because I couldn't resist:
    More a propos and because I couldn't resist:
    "The descent
    made up of despairs
    and without accomplishment
    realizes a new awakening:
    which is a reversal
    of despair.
    For what we cannot accomplish, what
    is denied to love,
    what we have lost in the anticipation–
    a descent follows,
    endless and indestructible"
    William Carlos Williams, The Descent
    Posted on August 27, 2010 at 4:26 am by jamison
  • Me miserable! which way shall I fly
    Infinite wrath...
    Me miserable! which way shall I fly
    Infinite wrath and infinite despair?
    Which way I fly is hell; myself am hell;
    And in the lowest deep a lower deep,
    Still threat’ning to devour me, opens wide,
    To which the hell I suffer seems a heaven.
    John Milton, Paradise Lost, Book IV, Lines 73-78.
    Posted on August 27, 2010 at 4:13 am by Jamison
  • I read this post as an elegy to justice. Law schoo...
    I read this post as an elegy to justice. Law school is not in the business of teaching of the care of souls. The tower of ivory is built upon a graveyard of elephants. If law is a jealous mistress, then justice is a scornful one. Your post evokes a simple truth: the road to justice is a lonely, tortuous path, fraught with perilous self-doubt. Stay the course.
    "That what you fear the most, could meet you halfway"-Pearl Jam, Crazy Mary
    Posted on August 27, 2010 at 2:50 am by The Trial Warrior

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