DefendingtheGuilty / Antitrust / PeaceMoves / ArtTrade / LandUseControls

51 Pages·2008·13.45 MB·English

R
SPRING 1984 VOL. 18, NO.2
Defending the Guilty / Antitrust / Peace Moves / ArtTrade / Land Use Controls

R
SPRING 1984 VOL. 18, NO.2
Editor: Constance Hellyer
Associate Editor:
Michele Foyer
Art Director:
BarbaraMendelsohn
ProductionArtists:
Marco Spritzer, NancySinger
Student Interns:
EmilyBrandenfels, Lisa
Hudson
Cover photo byLeo Holub
Other photo and art credits:
page45. Page4 Page10 Page26
StanfordLawyeris pub
lished semiannuallyfor alum
ni/ae and friends ofStanford
LawSchool. Correspondence FROM THE DEAN 2
and materials for publication
are welcome and should be FEATURE ARTICLES
sentto: Editor, Stanford Defending the Guilty 4
Lawyer, Stanford LawSchool,
BarbaraA. Babcock
Crown Quadrangle, Stanford,
CA94305. Copyright1984by A Conversation with William F. Baxter 10
the BoardofTrustees ofthe withDianaDiamond
Leland StanfordJunior Uni Antitrust in the '80s: The Zealots vs. the Wackos 17
versity. Reproduction in ThomasJ Campbell
whole orin part, withoutper
mission ofthe publisher, is
AT ISSUE
prohibited.
Toward an Effective Peace Movement 22
Opinions expressed inby John H Barton
lined articles are notneces Trading in Art: Cultural Nationalism vs. Internationalism 24
sarilyshared bythe editors or John HenryMerryman
byStanford LawSchool.
Growth Controls: Fueling the Mid-Peninsula
House Price Explosion 26
RobertC. Ellickson
SCHOOL NEWS 31
Faculty Notes 43
ALUMNI/AE NEWS
Alumni/ae Weekend 1983 28
Class Notes 46
In Memoriam 84
Alumni/ae Gatherings 86
Coming Events Back Cover
LETTERS 88
faculty group photographs. (Carl
1974
Spaeth's deanship was as early as
we were able to go. The faculty
photographsfromearliertimesthat Frontrow, Lto R:ByronD. Sher,
we locatedwere ofindividuals, and Thomas C. Grey, MichaelS. Wald,
did not picture the faculty as a RichardJ Danzig, Mauro Cappelletti,
RobertL. Rabin
group.) Needless to say, we would
be interested if anybody has or is Secondrow, Lto R: GeraldGun
aware of any such pictures-as, ther, MoffattHancock,J MyronJacob
indeed, we are interested in all stein, BarbaraA. Babcock, KennethE.
picturesreflectingthehistoryofthe Scott, HowardR. Williams, William F
School. D Baxter,JohnKaplan, William Cohen,
PaulBrest, DavidRosenhan
Thirdrow, Lto R: WilliamB.
Gould, VictorH Li, RobertA. Girard,
1977
JohnH Barton,JohnHenryMerryman,
JackH Friedenthal, ThomasEhrlich
John Hart Ely (Dean), RichardS. Markovits, MarcA.
Front:HowardR. Williams, Thomas Franklin, CharlesJ Meyers, J Keith
C. Grey,JohnHenryMerryman, Mann, LawrenceM Friedman, William
A s you noticed, the current fac BarbaraA. Babcock,J KeithMann. D. Warren
ulty grace this issue's cover
(minusafewofus,unfortunatelyin Middle:J MyronJacobstein, Wayne G.
cludingtheDean.That'smeabove). Barnett, KennethE. Scott, DavidL. 1967
Engle.
Instead of boring you with some
brief but repetitive message, I
Rear: William F. Baxter, MarcA.
thought it might be fun to share Franklin, ByronD. Sher, CharlesJ Frontrow, Lto R: CharlesJ
withyou-for purposes ofcompari Meyers (Dean), GordonKendallScott, Meyers,J MyronJacobstein, RobertA.
son and/or nostalgia- some earlier PaulGoldstein, andPaulBrest. Girard, BaylessManning(Dean),John
HenryMerryman, HowardR. Williams,
Joseph T Sneed
Backrow, Lto R:ByronD. Sher,
LawrenceM Friedman,JohnKaplan,
JackH Friedenthal, DouglasR. Ayer,
WilliamF Baxter, GordonKendall
Scott,John R. McDonough, Moffatt
Hancock, MarcA. Franklin, DaleS.
Collinson, Wayne G. Barnett
1961
Frontrow, Lto R: HarryJohnRath
bun, Marion RiceKirkwood, CarlBern
hardtSpaeth (Dean), JamesEmmet
Brenner,Joseph WalterBingham
Secondrow, Lto R:JohnHenry
Merryman, MoffattHancock,John R.
McDonough, GordonKendallScott,John
BinghamHurlbut, Lowell Turrentine,
SamuelDavid Thurman, DavidFree
man (AssistantDean)
Thirdrow, Lto R:Edwin M Zim
merman,JohnH DeMoully, RichardA.
Wasserstrom, RobertA. Girard, Law
renceForrestEbb, ByronD. Sher,
HerbertL. Packer, WilliamF Baxter,
PhilipH Wile
2 StanfordLawyerSpring1984
Spring1984StanfordLawyer 3
II
I
by Barbara Allen Babcock
ProfessorofLaw
B oW can you defend a per
son you know is guilty?
I have answered that ques
tionhundredsoftimes, butneverto
my inquirer's satisfaction, and
therefore never to my own. In
recent years, I have more or less
given up-abandoning the high
flownexplanationsofmyyouth,and
resorting to a rather peevish"Well,
it's not for everybody. Criminal de
fense work takes a peculiar mind
set, heart-set, soul-set."
WhileIstillbelievethis,themind
set, at least, might be more acces
sible through a better effort at ex
planation.
My perspective is that of a prac
titioner as well as an academic.
From 1964to 1972 Iwas a criminal
defense lawyer, first with the firm
of Edward Bennett Williams in
Washington, D.C., and then as a
public defender. I regard those
years as immenselysatisfying.
However, this experience also
gave me ample opportunity to
observe the pathology of the sys
tem, which I've continuedto follow
as a teacher of criminal procedure.
I'vealsoreadmanydozensofbooks
by and about criminal d~fense
lawyers, which largely mirror my
own experiences.
With this background- and with
my present security in a good aca
demic job- I feel able to discuss,
without the usual hand wringing or
washing, what it is like to defend
the guilty.
4 StanfordLawyerSpring1984
5
The legalistic or positivist's reason. treated as a real person in our so
What Is the Question?
Truth cannot be known. Facts are ciety(almostbydefinition, onewho
indeterminate, contingent and, in has a lawyer is a real person) and
Most people do not mean to ques
criminalcases, oftenevanescent. A accorded the full panoply of rights
tion defending those accused of
findingofguiltisnotnecessarilythe and measure of concern a lawyer
computer crime, embezzlement, or
truth, but rather a legal conclusion affords can enable a step toward
tax evasion. Usually the inquirer is
arrived at after the role of the de rehabilitation. And because the
asking, How can you defend a
fense lawyer has beenfully played. accused comes from a community,
robber, a rapist, a murderer?1
The sophist would add that it is the beneficial effect of giving him
Initscomponents, thequestionis
not the duty of the defense lawyer hisduewillspreadtohisfriendsand
first, How can you when you know
to act as fact finder. Were she to relatives, decreasing their anger
orsuspectthatifyouaresuccessful,
handle a case accordingto her own and alienation.
he will be free to commit other
assessment of guilt or innocence, To this might be added the
murders, rapes, and robberies?
she would be in the role of judge humanitarian's reason: the crimin
Second, how can you defend a rather than advocate. allyaccusedare menandwomenin
guilty man? You, with your fancy
Finally, there is a difference be great need, and it is part of one's
law degree, your nice clothes, your
tween legal and moral guilt: the duty to fellow creatures to come to
pleasingmanner.
defense lawyer should not let his their aid.
Third, how can you defend- i.e.
apprehension of moral guilt inter
move to suppress the evidence of The egotist's reason. Defending
fere with his analysis oflegal guilt.
clear guilt found on his person, criminal cases is more interesting
Theexampleusuallygivenisofthe
break down on cross-examination thantheroutineandrepetitivework
person accused of murder who can
an honest but confused witness, that most lawyers do, even those
respond with self defense. The ac
subject a rape victim to a psychia engagedinwhatpassesincivilprac
cusedmaybemorallyguiltybutnot
tric examination, or reveal that an tice for litigation. The heated facts
legallyculpable.
eyewitness to a crime has a history of crimes provide voyeuristic ex
The odds-makerchimesinthat it
ofmental illness? citement. Actual court appear
is better that ten guilty people go
ances, evenjurytrials, comeearlier
free than that one innocent be con
and more oftenin one's careerthan
victed.
couldbe expectedinanyotherarea
What Are the Answers? The political activist's reason. Most ofthe law.
people who commit crimes are And winning-ah, winning-has
themselves the victims of horrible greatsignificancebecausethecards
Thegarbagecollector'sreason. Yes,it injustice. This is true generally be are stacked for the prosecutor. To
is dirtywork, butsomeonemustdo causemostofthoseaccusedofrape, win as an underdog, and to win
it. We cannot have a functioning robbery, and murderare oppressed whenthevictoryisclear(thereisno
adversary system without a parti minorities.Itisoftenalsotrueinthe appeal from a not-guilty verdict) is
san for both sides. The defense sweet.
immediate case, because the ac
counsel's job is no different and the
cused has been battered and mis
work no more despicable than that
treated in the process ofarrest and
of the lawyer in a civil case, who
investigation. Moreover, what will
arranges, argues, and even orients My Own Reason
happen to the person accused of
the facts with only the client's ,
seriouscrimeifhe is imprisoned is,
interest in mind. My reason for finding criminal
in manyinstances, worse than any
This answer may be elegantly defenseworkrewardingisanamal
thing he has done. Helping to pre
augmented by a civil libertarian gam in about equal parts of the
vent the imprisonment ofthe poor,
discussionoftheSixthAmendment social worker's and the egotist's
the outcast, and minorities in
and the ideal of the adversary reason.
shameful conditions is good work.
system as our chosen mode for I once represented a woman
,ascertaining truth. The social worker's reason. This is let's call her Geraldine-who was
The civil libertarian also tells us closelyakintothepoliticalactivist's accused under a draconian federal
that the criminally accused are the reason, withsomedifferenceinem drug law of her third offense for
representatives of us all. When phasis. Those accused of crime, as possessing heroin. Under this law
their rights are eroded, the camel's the most visible representatives of (since repealed) the first conviction
nose is under and the tent may col the disadvantaged underclass in carried a mandatory sentence of
lapse on anyone. In protecting the America, will actuallybehelpedby five years with no possibility of
constitutionalrightsoftheaccused, having a defender, no matter what probation or parole. The second
we are only protectingourselves. the outcome of their case. Being conviction carried a penalty of ten
6 StanfordLawyerSpring1984
not measurable, I think that Geral
dine'sfriends andrelativeswhotes
tified and talked with me were
impressedbythefactthatshehada
"real" lawyer provided by the
system.
Butinthelastanalysis, Geraldine
was right. The case became my
case, not hers. And what I liked
most was the unalloyed pleasure of
thesoundof"NotGuilty."Thereare
few unalloyed joysin life.
The lawyer's discipline requires,
however, that we do more than re
spond to the immediate question.
Weshouldalsoconsiderwhether,in
fact, the right question is being
asked.
Is the Question Right?
The persistence and insistence of
the question- How can you defend
theguilty?- isbasedontheimageof
years with no probation and no withrageandrighteousness. Itried the defense lawyer using daring
parole. Thethirdconvictioncarried topaintapictureoftheimpoverish courtroom skills and legal techni
a sentence of twenty years on the ment and hopelessness of her life, calities to free a homicidal maniac.
same terms. through lay witnesses and the doc Yet this is a fantasy almost never
She was 42 years old. Duringthe tors (whowere alittle onthe inade realized.
few years ofheradultlifewhennot quate side themselves). The prose The vast majority of those
incarcerated by the state, she had cutor and Icame closeto blows. At accused of crime plead guilty-in
beenimprisonedinheroinaddiction one point, he told the judge he some jurisdictions as many as 90
of the most dreadful sort. She was couldn't continue because I had percent ofthose charged. Nowhere
black, poor, and ugly-and there threatened him (which I had-with is the guilty plea rate less than 60
was no apparent defense to the referral to the disciplinary commit percent.
charge.Butevenforoneasbereftas tee if he continued what I thought In one rough sense this may ap
she, the general practice was to was unfair questioning). pear to be a fair result, since most
mitigatetheharshnessofthelawby Geraldine observed the seven defendants are guilty of something
allowing a guilty plea to a drug daysoftrialwithonlymildinterest, along the lines of the accusation.
charge under local law, which did butwhenaftermanyhoursofdelib Yet many, in some places most, of
not carry the mandatory penalties. eration the jury returned a verdict those who plead guilty do so with
In this case, however, the pros ofNotGuiltybyReasonofInsanity, out theirlawyers', or anyone else's,
ecutor refused the usual plea. she burst into tears. Throwing her thinking very seriously about pos
Castingaboutforadefense,Isent arms around me, she said: "I'm so sible defenses or extenuating cir
her for a mental examination. The happyfor you." cumstances.
doctors at the public hospital Embodied inthe Geraldine story, Rather than the popular myth of
reported that she had a mental which has many other parts but an adversary system designed to
disease: "inadequate personality." whichisclosetotrueasI'vewritten produce individuated findings of
When I inquired about the symp it, are my answers to the question. guilt while protecting precious
tomsofthisillness, onesaid: "Well, Bydirectapplicationofmyskills, rights, we have a bureaucratic
she is just the most inadequate Isavedawomanfrom spendingthe guilty-pleamillthatgrindsallalike.
person I've ever seen." But there it rest of her adult life in prison. In Overburdened defense lawyers
was- at least a defense- a disease constructingher defense, Ibecame without investigation or prepara
or defect listed in the diagnostic intimatewithalifeasdifferentfrom tion arrange for the going_rates on
manual ofthat day. myownascouldbeimagined, andI cases and trade one offagainst the
At the trial I was fairly choking learned from that. In ways that are others.
Spring1984StanfordLawyer 7
The appropriate question for
manydefenselawyersis,then,How
can you participate in such a
process? or even Why don't you
defend the guilty?
The realities ofa criminaljustice
systeminwhichfewareactuallyde
fended seldomsurfaceinprint. But
Life magazine once followed an
experienced public defender in his
dailyroundsinNewYorkCity. The
defender entered a crowded cell
blockonthedayoftrialtodiscussa
proposed deal with a client he had
neverseenbefore. Highlightsofthe
conversation between Erdmann
(the lawyer) and Santiago (the cli
ent) were recorded:
"Ifyoudidn'tdoanythingwrong,"
Erdmann says, "then there's no
pointevendiscussingthis. You'llgo
I
to trial."
Santiagonodsdesperately."Iain't plea ifyouaren't guilty." lawyers willingto representthe ac
done nothing! I was asleep! I never "But Ididn't do nothing." cused, the question of how one
beenintroublebefore."(Thisisthe "Thenyou'llhavetostayinandgo defends the guilty would be sub
first time, sincehisinitialinterview to trial." sumed in the larger one of what
with a law student seven months "Whenwill that be?" lawyers' work is about. And this is
ago, thathehashadachancetotell "In a couple of months. Maybe where the question belongs.
his story to a lawyer, and he is longer." There is really nothing different
frantic to get it all out. Erdmann Santiago has a grip on the bars. about the ethical dilemmas or the
cannotstopthetorrent, andnowhe "You mean if I'm guilty, I get out amoralstancetowardsocietyofthe
does not try.) "I been here ten today?" lawyerinacivilcaserepresentinga
months. I don't see no lawyer or "Yes." "bad" person- even, or especially,
nothing. Iain't had ashowerintwo "But if I'm innocent, Igot to stay in corporate form- than the lawyer
months. We locked up 24 hours a I.n.?" representing someone guilty of a
day. I got no shave, no hot food. I "That'sright."2 crime.
ain't never been like this before. I The wrong question is asked and Itistruethatthefactsofcriminal
can't stand it. I'm going to kill my nobody really cares, because most casesareheatedandthatthestakes
self. Igot to get out. Iain't- " of those accused of crime are poor are high, but the very same ethical
Now Erdmann interrupts, icily and often are minorities. A pressures exist in civil cases to win
calm. "Well, it'sverysimple. Either "we/they" mentality allows the by shading the facts, crossing the
you're guiltyoryou'renot. Ifyou're shameful discontinuity between a line in witness preparation, and de
guiltyofanything, youcantakethe criminal justice system described stroyingor creatingevidence.
pleaandthey'llgiveyouayear;and, on paper and reality. Perhapsweshouldshiftthefocus
under the circumstances, that's a Yetunlikeothersoresonthebody oflawyers'workfromitstraditional
very good plea, and you ought to politic that arise from fear and unmitigated devotionto the client's
takeit. Ifyou'renotguilty,youhave prejudice, the breakdown of the interest. But until that is done, the
to go to trial." criminal justice system is a tract defense of the guilty should be re
". . . I'm innocent. I didn't do able problem-once we resolve to garded in the same wayas the rep
nothing. ButIgottogetoutofhere. solve it. There simply should be resentation ofthe "bad."
Igot to-" more lawyers, both public defend To inspire more lawyers to enter
"Well, if you did do anything and ers and the regular litigating bar, the lists, let us finally turn to an
you are a little guilty, they'll give doing criminal defense work in the exemplarylife- inthemodeofnine
youtime served and you'll walk." samewayandwiththesameexpen teenthcenturybiographiesofsaints
"I'll take the plea. But I didn't do diture of resources as other legal and statesmen, presentedfor peda
nothing." work. gogic effect. Inall ofthewritingby
"Noone'sgoingtoletyoutakethe If there were a large base of andaboutcriminaldefenselawyers,
8 StanfordLawyerSpring1984