HEARTS AND FLOWERS
by
Robert M. Karton
Delivered to The Chicago Literary Club
February 21, 2000
Copyright 2000 by Robert M. Karton
As American jurists and politicians are fond of saying: "Ours is a nation of laws. We are
ruled by laws, not men." What does this really mean?
The concept of laws developed by necessity thousands of years ago. The earliest laws were
a blend of custom, morality, religion, and magic. Having spent the past 35 years of my life practicing
law, I sometimes think religion and magic still play an important role. Be that as it may, wrongs
against the tribe, such as sacrilege or breach of tribal custom, were met with ridicule and hostility by
the group. Wrongs against individuals, such as murder, theft, or failure to repay a debt, were avenged
by the family of the victim.
One of the most significant developments in the history of law was the Twelve Tables of
Rome. These were engraved in the 5th century BC and were an attempt to write down or codify the
existing customs concerning such matters as property, debt, compensation and other inter-personal
matters. These tables led to civil law codes which provide the main source of law in much of the
world today.
There is a distinction which must be drawn between "public" and "private" laws. "Public law"
can be generally referred to as a compendium of official rules and regulations which is used to govern
a society and to control the behavior of its members. "Private law" involves the various relationships
which people have with one another and the rules which determine their legal rights and duties among
themselves. "Public law" dominates in government controlled societies. Democratic societies like
the United States have a significant mix of "public" and "private" law.
Another feature of law which was quickly recognized was that it could be used by those in
power, whether secular or religious, to control, not just to preserve the peace of the society. As a
result, many of the early laws were primarily concerned with preserving the prerogatives, wealth and
power of the masters, whoever they might be.
About the same time as the Twelve Tables were being written, Draco wrote a code of law for
Athens. Although we often refer to Athens as the "cradle of democracy," the only thing democratic
about Draco's code was the uniform severity of the punishments. Draco's code established the death
penalty for so many offenses, even trivial ones, that we remember Draco to this day by calling an
unreasonably harsh law "draconian."
Societies throughout history have been notorious, or in some cases, infamous, for applying
seemingly benign laws to stifle thought in an attempt to maintain control of men's minds. An early
example of this was the persecution and execution of Socrates. Another glaring example, of course,
is the persecution of Galileo during, of all periods, the Renaissance. We look back today and marvel
at the incredible ignorance, prejudice and superstition of that time, and yet, have we really come so
far?
Despite occasional attempts by emperors, despots, and the like, to seem beneficent by
extending whatever "privileges" the laws might confer to all peoples, those progressive efforts were
generally significant for their rarity and short lives. The Roman emperor Caracalla conferred rights
of full Roman citizenship upon Jews in 212 AD. This was a matter of enormous significance,
particularly to the Jews, because Rome recognized only two classes of Roman people: citizens and
slaves. That grant of rights, however, lasted barely 100 years. In the 4th century AD, Constantine the
Great and his successors, influenced by the growing power of Christianity, slowly but surely took
away the civil rights and liberties which had been so recently given. This is but one of scores of
examples of horrendous laws frequently promulgated by good men in the name or for the glory of
God.
In the 6Th century AD, Justinian I, called "the Great", had become the Byzantine emperor.
Almost immediately upon his accession, Justinian set out to restore the Roman Empire, the western
part of which had been lost in the barbarian invasions of the 5th century. By the end of his 38 year
reign, Justinian had succeeded in restoring to the empire most of the former Roman territory around
the Mediterranean Sea.
There was a need for a uniform legal system for Justinian's centralized empire. It took 10
years for an imperial commission, headed by the renowned jurist Trebonianus, to collect and
systematize existing Roman law into an enormous Corpus Juris Civilis (Body of Civil Law),
also called the Justinian Code. The Justinian Code was not a new law. It was a clarification and
update of the Roman law that had come before. Previous acts that were not incorporated into the
Code were declared invalid.
As anyone who has had to deal with the United States Code or the Illinois Compiled Statutes
can attest, the tendency is to add laws to deal with new situations. Legislators, however, are as
reluctant today to repeal previously enacted but no longer necessary law as they were two thousand
years ago. Justice Oliver Wendell Holmes observed: "It is revolting to have no better reason for a
rule of law than that it was laid down in the time of Henry IV. It is still more revolting if the grounds
upon which it was laid down have vanished long since and the rule simply persists from blind imitation
of the past."
In England there were bitter disputes between secular and religious authorities as well as
between Saxons and the conquering Normans. A particularly notable episode was between Henry
II of England and his Chancellor, Thomas Beckett, whom he made Archbishop of Canterbury. These
disputes generally involved the educated and entitled, if not titled, people; the unwashed masses were
of no real concern to them when it came to rights and privileges.
The dispute between "church" and "state" and contending nobles continued in England and
throughout Europe, although its progress in England is of particular importance to us in this part of
the United States. The disputes, particularly between church and state, led to increased civil rights,
although it took hundreds of years for the seeds planted by the warring church and state to bear fruit.
It has been observed that the political liberty we enjoy today is the residuary legatee of this
eleemosynary animosity. The various disputes, whether between church and state or one class of
nobles and the reigning monarch, were, in reality, attempts to obtain or preserve power.
England's King John, gained much of his notoriety from the tales of Robin Hood, but his
historical significance is due to the Magna Carta. By 1215 AD, John, faced with the
prospect of revolt by his nobles, was forced to grant to them and to the Catholic Church certain rights
purportedly in perpetuity, at least that is what the document says. In reality, each succeeding
monarch did his best to dilute or negate the rights granted by John.
The Magna Carta did not create the majority of the rights it granted; it confirmed
them. Many of those rights and principles have been incorporated into our Constitution. Although
the language of the Magna Carta indicates that the benefits granted therein inured to "all
freemen of our kingdom", "freemen" by no means meant the common man. Included among the
principles and liberties were separation of church and state and guarantee to the nobles of trial by jury
of their peers in certain, specified instances.
Civil Rights germinated for millennia before blossoming. In 1762, the French philosopher
Jean-Jacques Rousseau said: "Man is born free, and everywhere he is in chains." By "chains" he
meant limitations imposed by government or other institutions on the exercise of one's rights and
freedoms. Fourteen years later we stated our adherence to that concept in our Declaration of
Independence when we declared "life, liberty and the pursuit of happiness" to be inalienable rights.
Never before in human history prior to the separation of the United States from England in 1776 was
a government formed whose chief purpose was to protect its people's liberties and civil rights.
The ideals were lofty; men had cause to be optimistic. However, as Mr. Justice Louis D.
Brandeis said: "Experience should teach us to be most on our guard to protect liberty when the
government's purposes are beneficial. The greatest dangers to liberty lurk in insidious encroachment
by men of zeal, well meaning but without understanding." As it has turned out, "life, liberty and the
pursuit of happiness" were inalienable rights for some, but not for all. The significance of "all" men
being created equal and being endowed by their creator with those inalienable rights depends on what
the definition of "all" is. Today, more than 200 years later, the perfume of civil liberty is still not
sweet to everyone.
"Civil rights", in the broadest sense, are different from "natural rights". The latter are those
belonging to individuals by virtue of their humanity: the right to remain alive, to sustain life with food
and shelter, and to follow the dictates of their own conscience. The former are based upon positive
law. They are derived from laws. For example, if it is a natural law to follow the dictates of one's
conscience, civil law may regulate acceptable limits for the journey. Civil law also determines such
things as who may vote, who may drive a car, the "legal" age for marriage, for alcohol consumption,
and the like.
Natural and civil rights have become so intertwined as to be virtually indistinguishable in many
respects. If we allow a government the power to abolish civil rights, the government will also have
the power to abolish natural rights. An individual denied equality (a civil right) finds very little liberty
(a natural right). And people without liberty find little enjoyment in equality.
For people to have "civil rights", two preconditions must exist: justice and equality, the
former being somewhat ephemeral. Clarence Darrow, said: " litigants and their lawyers are
supposed to want justice, but in reality there is no such thing as justice either in or out of court. In
fact, the word cannot be defined." Justice, of course, means different things to different people,
depending on their individual prejudices. Justice is an abstract concept. When we agree with the
outcome of a dispute, the outcome is just. When we disagree, then justice has not been served.
Although we are a nation of laws, no matter how perfect laws may be, they can be imperfectly
administered by men. Justice, however, cannot exist without equality of treatment under like
conditions.
The principle of equality, the second, essential ingredient of the mix, has often been
misunderstood or misinterpreted. Equality was never asserted as applying to natural gifts like
intelligence; aptitude for math, science, art or music; athletic ability. It was a moral, a political, and
a legal principle. Equality in the political sense demands that everyone be treated under the law with
the same consideration and respect. Mr. Chief Justice John Rutledge observed: "Poverty or wealth
will make all the differences in securing the substance or only the shadow of constitutional
protections." That observation, unfortunately, is often as true today as it was in the late 16th
century.
Equality also does not suggest sameness of social condition. There can be differences of
social condition as long as the opportunities to reach any social level from any other social level are
equal.
Although justice cannot exist without equality, equality can exist without justice. It would
be unjust, for instance, in a capitalistic society, to mandate the same wages for all persons regardless
of the job. Such forced equality is a denial of justice.
Of the 63 specific concessions made by King John in the Magna Carta, perhaps the
most significant to us is the right to trial by jury in criminal cases. Indeed, the right to trial by jury
of one's peers has become a cornerstone of the legal rights of the citizenry against action taken
against it by the government, be it federal or state.
Judges, in both civil and criminal cases, routinely instruct juries that the Judge is the sole judge
of the law and the jury is the sole judge of the facts. The intent is that the jury, having determined
the facts from the evidence it has been permitted to hear, must judge those facts within the context
of the law as enunciated by the judge. Is the jury, however, limited to that role? Is the jury, as
Robert Frost said: simply a body which consists of twelve persons chosen to decide who has the
better lawyer?" Does not the jury in criminal cases also have the right, the duty, to judge the intent
of the accused and the justice of the law? Should not juries hold all laws invalid which are, in their
opinion, unjust or oppressive, and all persons who violate or resist the execution of such unjust or
oppressive laws guiltless?
In 1735, John Peter Zenger, owner and publisher of the New-York Weekly Journal,
attacked the highhanded administration of New York Governor William Cosby by publishing satire
and other "unacceptable" criticism. Zenger was brought to trial in the King's court for criminal libel
based upon his allegations that the liberties and property of the people of New York were in jeopardy,
"men's deeds destroyed, judges arbitrarily displaced, new courts erected without consent of the
legislature," trial by jury "taken away when a governor pleases," and men of property "denied the
vote." Zenger's counsel, Andrew Hamilton, conceded that Zenger both printed and published the
articles in question. The question then became the definition of libel. The Court charged the jury
with having to find Zenger guilty of criminal libel if the words published were "scandalous, and tend
to sedition, and disquiet the minds of the people of this province." Hamilton, on the other hand,
argued that the Court's definition omitted one, essential element. He argued that the works published
also had to be "false", a concept not recognized by the King when dealing with criminal libel. To
make a long, but interesting story short, the jury refused to accept the charge of an unjust law and
found Zenger not guilty. It took another 50 years, however, before the British government enacted
into law the precedent established in the case that a jury had the right in seditious libel to judge the
truth of the matter published.
If the government can dictate to a jury any law whatever in a criminal case, and if the jury has
not the right to determine whether or not the law is reasonable and just; the government can require
a jury to convict and punish on whatever pretext it wishes. The object of "trial by jury"; that is, trial
by the "people", as distinguished from a trial by the "government", is to guard against oppression by
the government. It is indispensable, therefore, that the people judge and determine their own liberties
against the government instead of the government's judging and determining its own powers over the
people.
The difference, then, between trial by jury, that is, trial by the people, and trial by the
government, is simply the difference between liberty and despotism. The authority to judge what are
the powers of the government, and what are the liberties of the people, must necessarily be vested
in one or the other of the parties themselves, -- the government, or the people. If the authority be
vested in the government, the government is absolute, and the people have no liberties except as the
government sees fit to allow. If, on the other hand, that authority be vested in the people, then the
people have all liberties, except those that the whole people (through a jury) choose to disclaim.
Who leads the fight to preserve and improve the jury system? Who leads the fight to preserve
our very civil rights? You guessed it lawyers. Legal specialists, as a class, came into being in the
Greco-Roman civilization from the 3rd century BC to the 7th century AD. In the early stages of both
Greece and Rome, there was a prejudice against the idea of specialists in the law being available for
hire. The assumption was that citizens had knowledge of the customary law and would get advice
from kinsmen if necessary. As the law became more complex, however, men of prominence, usually
patricians, found the need to acquire legal knowledge, and some acquired a reputation as experts.
These experts would often serve society as magistrates and, in Rome, as priests of the official
religion, having special powers over family law.
The system of development of the early Roman law by annual edict and by extension of
precedents gave the legal expert an influential position in society; he became the jurisconsult,
the first nonofficial lawyer to be regarded with social approbation. Of course, part of the approval
he enjoyed was due to the fact that he did not attempt to act as an advocate at trial and was
prohibited from receiving fees for his services. Actually, advocacy at trial was performed by a
separate class -- orators, some of whom, like Cicero, became legal experts themselves. It was not
until the later Roman Empire when legal professionals; that is, a legal expert earning his living by fee
paid legal services, first became visible.
The late Roman pattern of legal organization greatly influenced the Europe that began to arise
after the barbarian invasions from 1000 AD on. The Christian Church, which became the official
Roman imperial church after 381 AD, developed its own canon law, courts, and practitioners;
however, it, too, followed the general outline of the later Roman legal organization. After the revival
of learning in the 12th century, the influence of the Roman legal system was greatly
strengthened.
The influence of the Roman legal system moved to England with the Norman Conquest in
1066. The clerics who staffed the Norman and Plantagenet monarchies and who provided the earliest
of the judges enabled the idea of legal professionals and representation to be accepted. The native
"common law" which became the basis of our laws, was developed by the growing specialized legal
society, the Inns of Court in London. There, through apprenticeships and attending lectures, men
acquired admission to practice before the royal courts.
After about 1300 AD, "attorneys", only recently authorized by legislation, at first shared the
life of the Inns with the "apprentices" in advocacy, who themselves in time acquired the title of
barristers. When the Court of Chancery was established as the dispenser of "equity", as distinguished
from courts which dispensed money damages, the appropriate agent for litigation was called a
solicitor. It was finally in the 18th century that the barristers accepted a rule that they would function
only on the engagement of an attorney not directly for the client.
There were several significant differences between the law in England and on the Continent.
One of the most significant was that development of the law in England in the 17th and 18th centuries
took place chiefly through precedent based on the reported judgments of the courts, rather than
through legislation. Here began a practice condemned by many today legislation by judicial
decision. Jonathan Swift observed: "It is a maxim among these lawyers that whatever has been done
before may legally be done again; and therefore they take special care to record all the decisions
formerly made against common justice and the general reason of mankind. These, under the name
of precedents, they produce as authorities. "
The main patterns of both the law and the legal practice were exported by the continental
European powers and England to their overseas colonies and possessions. The English system
provided the model for English-speaking North America. The original model has undergone
considerable modification. In particular, the specialization of the solicitor-barrister has tended to be
replaced by a "fused" profession of legal practitioners ostensibly qualified to perform both functions
and usually doing so.
The legal profession in the distant past and in the present has had an ambiguous social
position. Leading lawyers have usually been socially prominent and respected the sections of the
profession so favored varying with the general structure of the law in the particular community. Yet
along with the high repute enjoyed by the profession over two millennia, lawyers have also been
among the most hated and distrusted elements in society. In some cases this has been because people
had need to deal with lawyers only when there was trouble and, as a result, associated lawyers with
trouble. Trouble was bad enough, but having to pay the lawyer in addition only made the association
more onerous. In other cases this antipathy for lawyers has been the consequence of a general
hostility to the whole idea of law, China being an example. Confucian teaching, in the 6th century BC,
opposed the use of civil law as a major means of social control, and this influence remained powerful
there and in Japan until the 20th century.
More than 60 years ago, Mr. Justice Brandeis said: "It is true that at the present time the
lawyer does not hold that position with the people that he held fifty years ago, but the reason is not,
in my opinion, lack of opportunity. It is because, instead of holding a position of independence
between the wealthy and the people, prepared to curb the excesses of either, the able lawyers have
to a great extent allowed themselves to become an adjunct of the great corporations and have
neglected their obligations to use their powers for the protection of the people."
Indeed, "lawyer bashing" is not a new phenomenon. We have Oscar Wilde to thank for the
quip that "lawyers have been known to wrest from reluctant juries triumphant verdicts of acquittal
for their clients even when those clients, as often happens, were clearly and unmistakably
innocent."
But, attempts at humor aside, all too often clients, even those clients who were clearly and
unmistakably innocent, are not found innocent. In Massachusetts in the 1920's, at a time of rampant
xenophobia, two Italian anarchists, Sacco and Vanzetti, were wrongfully charged with murder. In
1927, Mr. Justice Felix Frankfurter, one of the finer legal minds to enhance the United States
Supreme Court, wrote a critical analysis of their trial. His critique was a scathing indictment of
police, prosecutors, the initial defense attorney, and the Judge who, in concert, committed "legal"
murder by deliberately playing on and exciting the emotions of jurors still in the grip of war fever.
A few short months after Justice Frankfurter's analysis of this grievous miscarriage, Sacco and
Vanzetti, two innocent men, were executed.
The case of Alfred Dreyfus, more commonly known as the "Dreyfus Affair" was not a "legal
murder", but it was a gross miscarriage of justice nonetheless. Dreyfus, a Jewish officer in the French
army, was convicted of treason in 1894. He had been accused of having written an anonymous
document revealing French military secrets intended for the German embassy in Paris. He was
reduced in rank and sentenced to life imprisonment. In 1896, Lt. Col. George Picquart, then head
of French military intelligence, uncovered evidence indicating that a French infantry officer, Major
Esterhazy, had actually written the treasonous document. Picquart's superiors silenced him and
dismissed him from the service. About the same time, similar evidence was uncovered by relatives
and friends of Dreyfus. The army court-martialed Esterhazy, but he was acquitted. Remember now,
Dreyfus was convicted; Esterhazy was acquitted. The following year, the French Supreme Court of
Appeal ordered a new trial for Dreyfus, but, even in light of the new evidence, he was again found
guilty, only with a reduced sentence. Right-wing, anti-Semitic elements among the politicians and
in the army, as well as the Roman Catholic church, upheld the verdicts of the courts-martial. To the
credit of the populace, the second Dreyfus verdict was so unpopular that voters chose a
liberal-oriented government in the 1899 national elections. The new government pardoned Dreyfus
and restored him to the army. Esterhazy, by then in England, confessed to having been the German
spy. Thanks to the likes of Emile Zola and his open letter J'Accuse!, this miscarriage of
justice ended more happily for Dreyfus than the previous for Sacco and Vanzetti.
What exactly is the role of the lawyer in society? We have discussed the rule of law; we have
discussed lawyers as a profession; we have discussed the basic protection of trial by jury. The focus
must be directed to the role of the lawyer in the minefield of law.
In 1820, King George IV of England was seeking for his wife, Queen Caroline, the combined
fates of Catherine of Aragon and Anne Boleyn. He charged Queen Caroline with adultery, and a
queen's adultery was grounds not only for divorce but for a conviction of high treason, the penalty
for which was death. In the trial of Queen Caroline before the House of Lords, her attorney, Henry
Brougham, having knowledge of facts that could secure the acquittal of his client but bring down the
monarchy, stated the duty of an English advocate.
.. an advocate by the sacred duty which he owes his client knows, in the discharge of
that office, but one person in the world, "that client and none other". To save that
client by all expedient means, to protect that client at all hazards and costs to all
others, and among others to himself, is the highest and most unquestioned of his
duties. And he must not regard the alarm, the suffering, the torment, the destruction
which he may bring upon any other. Nay, separating the duties of a patriot from those
of an advocate, and casting them if need be to the wind, he must go on reckless of the
consequences, if his part it should unhappily be to involve his country in confusion for
his client's protection
Have we learned anything about diminishment of freedom under the guise of religion, family
values, or any other extreme? It seems that, despite the sometimes heroic efforts of individuals and
a few lonely organizations, we have really learned little.
As recently as 75 years ago, on March 21, 1925, the legislature of the state of Tennessee
passed a statute making it "unlawful for any teacher in any of the universities, normals, and all other
public schools in the state, to teach the theory that denies the story of the divine creation of man
as taught in the Bible, and to teach instead that man has descended from a lower order of animals."
John Scopes, a teacher of biology at the high school in Dayton, Tennessee, was persuaded to allow
himself to be caught red-handed in the act of teaching evolution. Thus began the "Scopes Monkey
Trial", starring William Jennings Bryant, the Great Commoner, and Chicago's own Clarence Darrow,
pleader of unpopular causes. The trial provided all the show and entertainment the public
wanted.
Unfortunately, the trial, like many before and after, demonstrated how justice suffers when
the process is subverted by the zeal of the Court to sustain a position. Although Darrow destroyed,
perhaps literally, Bryant during cross examination, Darrow was not allowed to get any scientific
evidence before the jury. The jury, having had the evidence it heard managed by the Court, and
having no inclination to "judge" whether or not the law was reasonable and just, convicted Scopes.
This miscarriage of justice has been thinly fictionalized in "Inherit the Wind".
Laws exist today in many states which mandate that the story of divine creation be taught in
the public schools. In this area we have progressed little. But the responsibility for lack of progress
in the area of civil liberties cannot be laid on the legal profession. As a matter of fact, lawyers like
Darrow and other civil libertarians have had great success in both individual cases and in changing
the concepts of Americans and, ultimately, the law itself.
Raymond Chandler said: "The law isn't justice. It's a very imperfect mechanism. If you
press exactly the right buttons and are also lucky, justice may show up on the answer. A mechanism
is all the law was ever intended to be." But the law is all we have, and lawyers wear the mantle of
protectors of the law, of the mechanism, of the process. It is the lawyer's right to advocate the
unpopular cause; it is the lawyer's duty to advocate the unpopular cause for the preservation of the
law, the mechanism, the process which protects us all.
The American Civil Liberties Union, in the face of attacks from middle-of-the-roaders as well
as conservatives, has doggedly taken up the cudgel of taking cases involving harsh facts to challenge
the application of unjust laws. The ACLU has achieved an enviable record over the past 77 years.
To cite but a few examples:
Gitlow v. New York (1925) The U.S. Supreme Court, although upholding the
defendant's conviction for his call to overthrow the government, for the first time held that the
Fourteenth Amendment incorporated the free speech clause of the First Amendment and is, therefore,
applicable to the states.
Whitney v. California (1927) Although the Supreme Court upheld a conviction for
membership in a group that advocated the overthrow of a state, Justice Brandeis wrote a separate
opinion which explained that the "clear and present danger test" must include the presumption in
favor of "more speech, not enforced silence." That view ultimately prevailed and laid the
groundwork for modern First Amendment law.
Powell v. Alabama (1932) The Supreme Court held that eight African Americans
accused of raping two white women lacked effective counsel at their trial and, therefore, were denied
due process. This was the first time federal constitutional standards were applied to state criminal
proceedings.
Smith v. Allwright (1944) An early civil rights victory which invalidated, under the
Fifteenth Amendment, the intentional exclusion of black Americans from Texas' "white primary" on
the ground that primaries are central to the electoral process even though the Democratic party is a
private organization.
Hannegan v. Esquire (1946) A major blow against censorship. The Court severely
limited the Postmaster General's power to withhold mailing privileges for allegedly "offensive"
material.
Everson v. Board of Education (1947) Justice Black said: "In the words of
Jefferson, the clause was intended to erect a wall of separation between church and State' ."
This was the Supreme Court's first major utterance of the meaning of the Establishment Clause.
Terminiello v. Chicago (1949) The Supreme Court expanded the protection for
offensive free speech by exonerating an ex-priest convicted of disorderly conduct for giving a racist,
anti-Semitic speech that "invited dispute." Justice William O. Douglas, for the Court, noted that "the
function of free speech under our system of government is to invite dispute." As an aside, I grew up
hearing about this case. It originated in Chicago and was argued in the Supreme Court on behalf of
the City of Chicago by my father.
Brown v. Board of Education (1954) Perhaps the most far reaching decision of the
century, the Supreme Court overruled the "separate but equal" doctrine it had announced in 1896 by
finding that racially segregated schools are "inherently unequal" and are unconstitutional.
Escobedo v. Illinois (1964) The Court threw out the confession of a man whose
repeated requests to see his lawyer, throughout many hours of police interrogation, were ignored and
violated his Sixth Amendment right to counsel. This case has special meaning to me. I had an
occasion to prosecute Escobedo when I was an Assistant State's Attorney here in Cook County in
1965. This was after the Supreme Court case had been decided. Escobedo had been arrested and
charged with unlawful use of weapons; that is, having a gun concealed in a vehicle he was driving.
It turned out that there was considerable evidence that the gun, which was in fact in the car, was
wrapped in a rag and stuffed under the front seat of the car. We had an opportunity to talk to the
jurors after they found him "not guilty". They told me that they all knew who Danny Escobedo was;
he was that confessed murderer who got off on a technicality. They said they wanted to find him
guilty, but they just couldn't get passed the fact that they believed that the gun was "not readily
accessibly", which was a defense to the charge. The jury system worked. Reasonable laws are for
the protection of everyone, even confessed murderers.
I am reminded of an episode portrayed in "The Man For All Seasons." In 1536, Henry VIII
forced a jury of her peers to convict Anne Boleyn, his queen, of adultery and send her to her death.
Henry's Lord Chancellor, Thomas Moore, an attorney of profound integrity, gave his life for the
proposition that the law and the due process thereof were sacrosanct, even as to the King. In the
story, Moore is entreated by his wife to have Richie Rich, the man who later betrayed him, arrested
because he was dangerous. Moore asks what he has done. His daughter says: "That man's bad."
Moore replies: "There's no law against that". Robert, the young man who loves Moore's daughter,
asserts: "There is. God's law." Moore says: "Then God can arrest him". Moore's wife says:
"While you talk he's gone." Moore says: "And go he should if he were the Devil himself until he
broke the law." Robert says: "So, now you would give the Devil benefit of law?" Moore: "Yes,
what would you do, cut a great road through the law to get after the Devil?" Robert: "Yes, I'd cut
down every law in England to do that." Moore: "Oh, and when the last law was down and the Devil
turned round on you, where would you hide, Robert, the laws all being flat? This country is planted
thick with laws from coast to coast. Man's laws, not God's. And if you cut them down, and you're
just the man to do it, do you really think you could stand upright in the winds that would blow then?
Yes, I give the Devil benefit of law for my own safety sake."
There is one other of the many significant ACLU victories which bears mention at this point.
In U.S. v. Nixon (1974), the Supreme Court was considering whether or not the President
could withhold crucial Watergate tapes from Special Prosecutor Leon Jaworski. The Court adopted
the argument of the ACLU in its amicus brief that "[T]here is no proposition more dangerous
to the health of a constitutional democracy than the notion that an elected head of state is above the
law and beyond the reach of judicial review." The United States Supreme Court had finally, officially,
agreed with Thomas Moore; not even the President could subvert the integrity of the law.
One might think the number of miscarriages of justice would have declined; however, we have
recently seen a rash of capital convictions being overturned, some on the very eve of the defendants'
executions, because of misinterpretation of evidence, or because of technical errors in analysis of
evidence, or because of the precision of DNA testing, or, unfortunately, in too large a number of
cases, because of prosecutorial misconduct. When I prosecuted in the mid 1960's, the attitude which
came from the State's Attorney and was adopted by all of us was that we represented the "People
of the State of Illinois." That meant all of the people, not only the victims of crimes, but the accused.
Even though we did our best as zealous advocates for the People, we felt a keen responsibility to
protect the rights of the accused. The decline in professional ethics is appalling, but, in my opinion,
it is but a reflection of the decline in ethics rampant in our society at large.
Nevertheless, the legal profession all across the country has taken a hard look at itself.
Instead of simply bemoaning the sorry state of ethics generally and in the legal profession in
particular, Bar Associations are requiring attorneys to do pro bono work, to represent
unpopular people and to advocate unpopular causes. In short, the legal profession is once again
showing concern for the integrity of the process.
Dr. Martin Luther King, Jr., said: "Injustice anywhere is a threat to justice everywhere. We
are caught in an inescapable network of mutuality, tied in a single garment of destiny. Whatever
affects one directly, affects all indirectly." The concept is not a new one. It is a concept handed
down for thousands of years by persecuted peoples everywhere, for no one can understand the truth
and validity of the concept like a people who has been the victim of injustice. It is difficult to
understand, however, why so often peoples who have suffered injustice are the very ones who
systematically inflict it on others when they become the majority.
James Donovan, a prominent attorney, had been appointed to defend Soviet spy Rudolf Abel
who had been charged in 1957 with espionage. Donovan was a strongly patriotic man and felt deep
conflict from his sense of duty to defend an enemy of the United States. Nevertheless, Donovan, with
his commitment to professional responsibility, was determined to uphold the integrity of the judicial
process. After a particularly successful day in court, Abel told Donovan that there seemed to be a
chance that Donovan's defense might succeed and Abel might be acquitted. Donovan told Abel that
he agreed, that such a result looked possible. Abel asked Donovan what he would do in that
eventuality. Donovan, separating his duty as an advocate for this unpopular man from his duty as a
patriot, told Abel that, if he were successful in obtaining an acquittal, he would just have to kill Abel
himself. As a side note: Donovan did not have to take matters into his own hands. Abel was
convicted. He was exchanged for captured American U-2 spy plane pilot Francis Gary Powers in
1962.
Ultimately, a lawyer is an advocate, an advocate knowledgeable of the law. There is no room in the
profession for one who does not conduct himself in accordance with the letter and spirit of the ethics
of the profession. It is the lawyer's role, his right, his duty, to advocate unpopular causes to preserve
the integrity of the law, of the mechanism, of the process, and to strive toward justice. A lawyer
representing a defendant in a criminal case must insist that the prosecution prove that the law the
accused is charged with violating is a reasonable, just law. Of course, a lawyer prosecuting a
defendant in a criminal case has the same responsibility. The defense attorney must do all things in
his power and skill to force the prosecution to prove, beyond a reasonable doubt, that the accused
in fact violated the law as charged. If the prosecution fails in its burden, then the accused must be
set free, for even the Devil is entitled to benefit of law, for our own safety sake. As long as we have
a reasonable, just, legal system protected by responsible lawyers who are dedicated to the advocacy
of unpopular causes, we will continue to enjoy freedom and liberty under the rule of law.