In America's Court
How a Civil Lawyer Who Likes to Settle Stumbled into a Criminal Trial
By Thomas Geoghegan
THE NEW PRESS
Copyright © 2002 Thomas Geoghegan.
All rights reserved.
It is odd to think that I did not even notice till late in Clinton's second term that America was turning into a little bit of a gulag. We have 3,682 people on death row. Some are innocent. Some are kids, or legal minors at least. The prison population is close to 2 million, or 468 prisoners for every 100,000 Americans. Twelve percent of black men between the ages of twenty and forty are in jail or prison in any given year. And while all this was happening, I'd never even gone to visit anyone in a jail. Nor in a prison. I had never dreamed of trying a criminal case.
I was too busy settling civil ones, so how could I think of doing a criminal trial?
It's odd, of course, that in theory I can go off and "do" one at any time. Sure, just as in theory the patriarch Abraham, in his nineties, might ... oh, conceive a child. But in reality, I know there is such a gulf, a fiery region, between civil and criminal law, that it's hard to see how I can cross it and go over to that other shore. Besides, it's because I hate violence, murder, etc., that I thought I'd be forever on the civil side. Until recently I didn't even know that most new admissions to state prison every year are for nonviolent property, drug, or other crimes. Or that drug offenders make up most of our federal prisoners.
I am taking some of these numbers from Human Rights Watch, and its Report on the United States for 2001. As one who does mostly labor law, I turn first, of course, to the "civil" part, to read about the massive U.S. violations of labor rights. It's eerie that workers in America are spied on, fired, or run off when they try to organize, often the same as they are in Guatemala or Honduras. But now as I go on and flip through "criminal" sections, on prisons, on police torture, I wonder, in a nonhysterical way, if there is such a big gulf between civil and criminal. Perhaps all of it is simply human rights law. Conditions in our prisons often violate clauses of the U.N. Convention on Torture, and this may be related to the way, more and more, each decade, we trample on labor rights, or the fact that the National Labor Relations Board, just in this past year, adjudicated over 24,000 illegal firings. So maybe there is a connection, the thinnest of threads, that ties even me to criminal law. Maybe there is no civil, no criminal law, but only the law of nations, and that's the law I should be doing.
For my first twenty years after law school, I think the only criminal court I ever stepped into was in Paris. It was the Palais de Justice, which I saw, by accident, in 1977, when I was on vacation. I had met a grad student named Didi, who took me around, and everywhere we went he'd say:
"This used to be a red-light district."
"This used to be a red-light district."
"This used to be a red-light district."
And he pointed out the battle scenes from the great student revolt, in May 1968:
"This is where we fought the cops."
"This is where we fought the cops."
By a wild mistake, I had ended up crashing in his student flat, but Didi was a perfect host. I'd wake up every morning, and eat nothing, but I'd drink the blackest of black coffee, from a cup as big as the bell in Notre Dame. And while I was sipping, Didi, already up, would be poring over his favorite paper, Libération, and one morning he threw down the paper and said, if I can quote this right, "We must go to Expedites." Or it was like Les Expedites, or some special court that he had just read about in a Maoist paper. On the way over, Didi told me of this court, which was a new court, and how judges could deport Tunisian kids who'd been picked up the night before. Now, being a lawyer on vacation, I was aghast that we were going into a criminal court. (Because I did this all the time? In fact I'd never done it. But I didn't want to start in Paris.)
But Didi insisted. The Palais has an icy, Bourbon front, with a warning over the door: Liberté, Egalité, Fraternité. So when we came in, I was shocked to see a crowd. The place was full of people, like Didi, like me, really, who, if they had been Americans, would never have been here. "Who are all these people?" I asked, but Didi was intent, staring, so I looked in that direction: There was a Tunisian or Moroccan boy standing in a golden light. The gold of the light in which the boy was standing seemed to have caromed off the Louvre and fallen on his olive skin.
And in my very goose bumps at this moment, I must have experienced what a philosopher might call the sensuous apprehension of the idea of Justice!
Or wait, wasn't it the idea of Injustice? After all, the boy was going to be deported! But what I see now in my mind is not just this boy but the boy in this golden light being stared at by Didi, and me, and Didi's girlfriend, and twenty or thirty people who were buzzing on the French coffee they'd sipped that morning as they read it all, with horror, in Libération. That golden light: Wasn't it the light I had seen the day before in the Bibliothèque Mazarine, where Didi had sneaked us in? It was like the light of the Louvre, the light of the French Enlightenment, and the light of the Declaration of the Rights of Man, and the way it was streaming all over this boy, I knew it was like a vision. All I could think was:
Behold this boy, in the light of the Louvre.
Then I also began to behold his lawyers: two young men, as young as me, pacing in their black gowns, arguing and waving their arms, and they were both emotional and logical in a certain French way, or a way Descartes might have written about if he'd been describing the French: I think, therefore ... I am irate! The way the two waved their arms, that was part of the vision too. Although I didn't understand a word, I knew that they were arguing not only for the boy but also for the Rights of Man, and that for them, Africa was not just a gravel pit for digging up a diamond to give to your mistress, it was a place from which one could come and be treated with the respect of a citizen of France. After we left, Didi gripped my hand, I think, or we had some moment of fraternité, because I was a lawyer, too, and I would be going back to Chicago and waving my arms and surely I'd be arguing for these same things as well. And at this moment I did think I would go back and argue for the Rights of Man, but when I got back home, I went right back to doing civil. And while I tried a few cases, mostly I settled.
Twenty-one years went by.
Of course I had more or less forgotten about Paris. Then one day in our building I ran into Scott.
Now, for years I had been saying to Scott, who does criminal, "We should do a case together." But I said that in the way you say, One day we should have lunch together. It was sometime in February when he came up and said, "Look, if you ever want to do this, I have a case that's coming up. This ... this would be a good one."
I was so rattled that as he began to describe this case, I couldn't catch a word. "Well," I said, upset, "when ... I mean, when would we do this?"
I already knew, no way, it's impossible, I have way too much work.
"Next Monday?" I was about to say why I couldn't possibly do it. And then I had a creepy, sick feeling that maybe, after all ... OH SHIT, WHAT IF I COULD DO THIS? I ... but no, it wasn't possible, I had work, I had ... but what if I really didn't have work and I could do this?
"Well, how long would it take?"
"Oh, it'll go fast, maybe three days."
"I don't ... no, I ... I don't think I can." And now I remembered, when a few months back Scott had asked me before, I had begged off: "Scott, I ... all I could do would be second chair. I couldn't do anything as a principal, I couldn't really, like, try the case."
"No." He smiled. "That'd be malpractice."
Now, this annoyed me, in part because it would be malpractice. But hadn't I been in the Louvre? Okay, yet like every small-firm lawyer I think, It must be something like a divorce, or a will, or an SEC filing. If I had to, I could learn it as I go along. Practice on the client.
But it would be malpractice. I do try cases, right? I'm supposed to be a litigator, though I can't remember when one of my cases last went to trial. So why couldn't I do criminal? But as a civil lawyer told me once, "Yes, I could try the facts, but I don't know the system, what is let in, what is kept out." More important, as another civil lawyer friend said, "Who do you cut the deals with?"
I guess Scott would know. My question was, Where is this "criminal" court? Okay, it's at "Twenty-sixth and Cal" ("Cal" is for California Avenue), way south of the Loop. How do you get there?
No, I had work. Only, things had cleared up. Wasn't I working only part of this Saturday?
Scott seemed not to hear. "Can we meet this weekend?"
"I can't." Client ... I had to meet him this Saturday.
"Can I give you the file?"
(What? And on Monday just show up?) "I ... Scott, I won't have time to look at it."
Then he said, "Well, just remember this: We're meeting at nine o'clock, and it's in the courtroom of Judge K."
"Judge K., okay" I nodded. As if I was going....
I didn't mean okay, I was going ... just, I'd think about it. Only, now he was expecting me!
Shit, I can't do it, it's a waste of three days. It's not that I think They're All Guilty, but ... anyway, where is this Twenty-sixth and Cal?
Why, some may ask, would he need me, a "second chair"? Funny, I'd not have asked that. I knew Scott often did a jury case by himself. But it's like trying to sail, by yourself, a three-deck, twenty-gun man-of-war. You can be a hell of a sailor, but you go nuts, all by yourself, running up and down, swabbing the deck, getting the damn mainsail to stop flapping. At least I could help mark the exhibits. Do you know what it's like to have someone next to you hand you the exhibit so that you can give every part of your brain to the framing of the next question? So why can't a paralegal do this?
Answer: A paralegal could. But who can afford one?
Yet if it were me, I'd want a lawyer, too, because there's just something about a lawyer ... the woolen suits, I don't know. While you're up there before the judge, your fellow lawyer can whisper:
"Scott, look out ... behind you! The prosecutor, he's got a knife!"
"Your collar's up!"
I don't know why, but I'd trust a lawyer before I would a paralegal, since a lawyer knows what it's like to get a knife in the back.
Friday afternoon, Scott dropped off the file while I was out. I thought, I should phone him, and tell him I can't go. But I got busy and I forgot. It was Friday, and for once I had been in court, on an oral argument, before a state judge, who had said, "Counsel, I've read your papers. Now, is there anything not in those papers you have to add?"
"Yes, Your Honor." (There must be, right?) So I talked for ten minutes.
The judge stared at me awhile when I was done. "Counsel" he said, "you have added NOTHING."
And he ruled against me.
On the way back, Amy, my co-counsel, said, "He likes you, though."
"He doesn't 'like' me."
It was a stupid motion, and a stupid case ... and why was I doing this for a living? I went back to the office and filled out a time sheet:
"Appear in court ... and ADD NOTHING ... 1.5 hours."
I was sick of it, and it was Friday, and I had to meet a client, no, just a "potential" client, on Saturday. And even if it were just an hour, it befouled the whole day.
And Monday when I woke up, I remembered that Scott was still expecting me at nine A.M., at some place I'd never been. Oh, God, why didn't I call him? The only thing to do was just go down, somehow, and say, "Scott, I'm sorry, I can't do it," and go back up to the Loop. How did I get into this? Should I drive? No. I'd get lost.
No, better to take the El into the Loop, then I'd splurge on a cab and let the cab driver find it. So I took the Ravenswood, the little yuppie choo-choo train that is for everyone who is white and under thirty and goes choo-choo around the Loop, and then I got in a cab and said, "Twenty-sixth and Cal."
Well, I'd have never figured out the way, since to my surprise, he drove west, on I-290, the Eisenhower. Then he got off and drove about twenty blocks to the south. To think, a downtown lawyer would drive thisevery day!
Maybe I should look at the file.
Now I remembered, Scott had said, "This'll be a good one." The client was fifteen. Years old, fifteen? No. He'd been in jail for seven years.
Maybe it said that here. No, it didn't say.
It was something about a felony murder. A holdup. He had been arrested ... or no, he was convicted, at fifteen. Holdup in a bar. Bunch of kids. But he was twenty-two now? He was having a new trial or ...
I couldn't figure it out, so I looked out the window. "Oh, the city's coming back!" friends of mine say. Even over by the Henry Homer Homes, as if Henry Horner is the Western Edge of the World, and it's like they think the World ends at Western Avenue. They should take a trip out here.
Like I am doing, every day.
The cabbie in the front seemed to know what I was thinking: "It's a disgrace, isn't it?" He looked out at the boarded-up houses. "It's a disgrace a great city would let this stuff stay up, isn't it?"
What, did he drive carriages on Michigan Avenue? Something about this guy made me think, I'm being hit up for a tip.
It was March, rainy. We passed a bar, boarded up. "I bet," I said, "they're closed because it's Saint Patrick's Day."
I was curious what he'd say. But he was wary, and clammed up.
I got out at the court, which had the look of a normal Public High School. That is, it looked dangerous. In fact, there were five or six kids, gang types, hanging out in front. But this couldn't be a Public School: I didn't see any cops.
Even when I walked inside, I saw only a cop or two, who waved me through. Not just me. Everyone. The detector must have been busted, since I usually set it off. This worried me.
Of course I worry in Federal, where they frisk you and it takes five minutes. I have to raise my arms, take off my belt ... yes! ... while on the other side of the plate glass, I can see a Ryder van, in a tow zone, as it softly ticks away.
But I like that better than being waved through. Even though I was in a hurry, I was so upset by this that I went over to a guard, to show my lawyer's ID.
WOULD YOU PLEASE LOOK AT IT!
Okay, okay, he looked. If that's what I wanted.
What a place. Where was Judge K.? And I was jumpy, because it hit me, when I stepped out of the cab, how will I get back? No cabs came down here.
Shit ... but anyway, I had to find Scott. "Judge K.?" I asked. "Sixth floor," someone said.
"Uh ... how do I get a cab if I want to get to the Loop?"
"Cabs? Here?" But I was running to find Scott. What a "Court"! Until then I had only been in courts designed by Mies van der Rohe, or a Mies wannabe, so to me every court had to be simple:
And chilling. Really, it has to remind me of the stage set for The Duchess of Malfi. I mean a particular production of it I saw years ago; it's a blood tragedy. Revenge. And when the curtain rose, I had to gasp at the set, the black and white of the tiles, the pillars, even the dresses of the women, it was all in black and white, and everyone, in black and white, was proceeding, slowly, step by step, in single file, across the stage:
Somehow it all reminded me of federal court. The same cold Miesian-type beauty. A beauty that at any moment might drown us in a world of blood.
But Twenty-sixth and Cal? It's like a bus stop. Sure, they wave you through. Who would bother to blow up a Trailways?
Come on, elevator. It was nine o'clock, I ran and ... ah, I found Judge K. There was Scott, who let out a breath. "Hi," he said. "I was preparing an order ... you know, for 'leave' for you to appear."
Now I felt bad. It came to me again what a decent guy this is. Everyone respected Scott. He had been editor of his law review. Went to a fancy Loop firm. But he wanted to be a public defender. So he took the bonus he got from the firm, and he and his wife blew the whole thing at a commune in Scotland. Like a Lindisfarne. Sad, these kids who missed the sixties. "But Scott," I once said, "even in the sixties, I didn't know anyone who went to Lindisfarne!" And the tough city-lawyer side of him can laugh at that, but the fact is: He went there.
Excerpted from In America's Court by Thomas Geoghegan. Copyright © 2002 by Thomas Geoghegan. Excerpted by permission. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.