We think we do a decent job. We get up, get our coffee, get our kids off to school (hopefully with minimal long term damage to their psyche) and then head off to work ourselves. There, we sit at our desks and computers and we toil away. Maybe we make some calls or answer a bunch of emails and we meet clients or have lunch. We make more coffee and play on twitter or facebook and mull writing some blog posts. We email and text our friends and find funny e-cards to distribute far and wide.
And all the while thinking what good, decent people are we. How well we do by those we claim to love and those we claim to work for. And all the while thinking how lucky the world is to have us in it.
Look, I don’t really know you and you don’t actually know me, even though you think you do from reading this blog where I let you know the things that I let you know. If I know you in real life or online it is the same – we’ve only let each other see the parts that we want shown. It’s all faulty and fake advertising, the stuff we put on our webpage “Success stories: Case Dismissed! Not Guilty on First Degree Murder! Stet on Home Invasion!” We don’t tell people that we lost hearings and trials we probably shouldn’t have. We don’t advertise “Hey, I will do these hearings and trials if you want me to but I normally lose in these situations.” I mean, come on, who does that? And so you see my photoshopped image everywhere. Look at me! I look so young and vibrant. Look at me! Don’t I look like I am doing a decent job?
Back when I was writing more regularly I would get people who would email me. They would tell me they felt like they knew me because of the things I wrote but how could that be when, on a good stretch, I would write maybe once a day. I mean, I’m sorry but a LOT OF SHIT HAPPENS TO ME IN A DAY. There is no way I am telling you everything. There is no way I am telling you even a decent portion of things. And more importantly, how do you know I am even telling you the truth (well, I am telling you the truth, who would make this dumb stuff up?). In these days in between posts, in the months in between I have been living my life and it has gone not so great at times. I was not doing a decent job and I was so busy shouting from the rooftops how great this job was, how difficult yet how much nobility there was wrapped up in it. In the months and days in between posts I have been thinking if this is true or if I made it out that way in order to justify my existence. I mean, how can you do this job if it isn’t noble? How can you do it if you feel nothing but sadness and hopelessness for the human race? How do you get clients if you say that maybe some people are nothing more than the sum of their worst days? And there were days when that is what I wanted to say. I wanted to say “hey client, that wasn’t my fault. It was yours.” And I wanted to say “Hey judge why did you not listen to me? I was right. You are a dummy.” But those are not real things. They are feelings that pass but the effects of writing them are long lasting. Â I do not want clients to lose faith in me because I have a bad day. I do not want judges to think I am difficult to work with. These are the fears of my days and months in between posts.
You, faithful reader, you know there is always a point to these posts even though I frequently take the long way to them. I mean, I have an unlimited number of words in this essay, why not use them? My point is this – in the days in between the words you say to the world, in the hours that pass are you simply convincing yourself that your work on this planet is good enough or are you actually making it good enough? You see, what I am trying to say is that I am working on actually making it good enough. And it is a very long, very hard road. Because it is easy to say “Hark! I am lawyer of the downtrodden and betrayed and lonely!”
It is much more difficult to actually know your place in the world and to realize how lucky we are to be in it.
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In a fascinating turn of events – I am busy.
It’s not that I don’t have the will to write anymore. It’s not that there aren’t fascinating, interesting, exciting developments that are happening each day in the legal world. Oh, my friend. There are legions. But these things they take time. So, when the Supreme Court issues a new decision (Yay Descamps!) I have to figure out what I am doing with clients that have been convicted under the old law (is this retroactive – what say you smart appellate types?) and then it takes time.
And so things happen on a daily basis in the legal world and I fall behind. I keep meaning to write about things like – hey, did you know the defamation action against all of us bloggers was dismissed? It was and I neglected to write about it. Not that I didn’t feel vindicated and righteous for sticking it out with all the other good folks. Not that it didn’t feel like a weight was finally lifted (but you know what, if you hire a good lawyer you will feel a lot less burdened) but it just went by in a blur. You see, I was busy.
And there were motions and appeals and post-convictions. Hearings and sentencings and preparations for trials and hearings that just never happened.
And there were kids and illnesses and the things that make up a life. This life. This busy life.
I did get to spend some time, though, reading back on some of the notguilty posts. It is an interesting sort of diary and when I re-read some of these things I give myself the chance to remember who I was. That young criminal defense lawyer. The new mom. The new person in a new town. Trying to get pregnant. Trying to come back to life. What a good thing to have, this law blog. To document this busy life.
And I remember the fights and the back and forth with some very good, very smart bloggers. Some who don’t speak to me anymore because battle lines had been drawn and then re-drawn.
And then there is the law. And in between tales of my father and mother and being brown or sort of off white there is that thing that keeps it all going. This law thing. This thing that makes up such a huge part of my life.
Can I tell you though, I can tell you, right? I mean, who will you tell that doesn’t already know? That through the 8 or 9 years of this blog – and yes it has been around this long – this is the thing that has been the truest. I am in love with this job. Does that sound utterly ridiculous? Probably it does. But it is the truth. I swear it. It was my first love. It is the only true love besides that I feel for my children.
And I don’t want you to think this means it’s all “RAH RAH” or I am some cheerleader for the cause or even a blinded true believer. I think I was all of those things not so long ago – maybe when I was less busy or had less life experience. When I too was a young lawyer. Now, the love is deeper and has more understanding. You know, how after you know someone for a while you might not get that flutter in your belly every time, but there is a connection there that surpasses every crush you’ve ever had. Look,I’ve done other things. I’ve had flings with other careers and jobs. But I have always come back to this. Always.
God, here she goes again – does she ever not just blather on and on about “OMG this job is so like, super cool.” I am not meaning to blather, I am meaning to tell you something.
In this profession you should let yourself grow. Let it take you to places you didn’t think you would go and explore parts of yourself you didn’t know existed. After all, this isn’t some 9-5 grunt office job. You make a difference in people’s lives – people that everyone else chooses to ignore and abandon. But lest you think this makes you better or superior or somehow above the fray – listen – it does not. But it gives you insight into human beings. Insight that your friends and others that mill around you will never have. Do not squander it, young lawyers. Use it. With your friends and others that mill around you. It is a gift.
And I miss writing about the outfits people wear to work (I’m sorry, throw on some heels or some better looking flats, it won’t kill you) but I like the busy. I like this life so far. And I am glad I have this law blog. And when things happen I will try to remember to tell you about it.Share on Facebook
It was fifty years ago that Martin Luther King, Jr. wrote his “Letter from Birmingham Jail” and I have posted about it before. It is, as I’ve said on many occasions, something that inspires me when I am feeling quite the coward.
There is very little in my life that requires absurd amounts of courage. In fact it is all quite normal and humdrum. I have two boys that I need to raise to become men. If I screw it up they could become total douchebags or just general horrible guys to date or marry or have at your workplace or terrible bosses. I mean, this is a daunting task but is parenting a child really an act of bravery? It’s just what human beings do. You have sex (or in my case, you don’t) and then voila, nine or so months later you have other humans that are entrusted into your care.
(We don’t think of this being a parent things as an act of courage, but it should be considered such. Will your boys and girls be as brave as MLK? Will they be as brave as you? Will you show them your strength of will so they will know what it looks like? Let me ask you this – are you not afraid of what might happen if you don’t? I am. Always. Afraid of what could be if I don’t do it.)
I have a job. Some call it a career. I defend people accused of crimes. Some are guilty, some are not. I don’t know the difference on a regular basis. There is simply no time to contend with those details. And yes, to me they are nothing more than details. The defense is what matters. How much intestinal fortitude does it take to do this work? I am scared a lot of the time. But what is this fear? Of what? Of getting it wrong. Of screwing up. Of losing. And if I lose there is just so much at stake.
(But at the end of the day is it not just a job? Don’t I just move on, go on to the next case, the next client. I get do-overs all the time. But not with that client. Not with that person. I need to be strong. I need to push through. If I don’t do it, then who will? For him. For that person over there. Who?)
I have friends who have problems. Some big, some small. This life is filled with chaos and complexities and we navigate our way through sometimes with a GPS as faulty as the new apple maps. Our way is not always as clearly defined as we might like and we stray and fall and meander back and forth. Â Sort of like this post, which isn’t dissimilar from others where I simply can’t seem to get to the point.
But there is a point, and it is about MLK and it is about Birmingam
In January of 1963, Governor George Wallace (whom I’ve heard tell was a great politician) gave his inaugural address:
Â I draw the line in the dust and toss the gauntlet before the feet of tyranny, and I say segregation now, segregation tomorrow, and segregation forever.
Can you imagine? You are black. You live in the South and you are told that forever more, as long as these people are in power, you are less than fully human. So, what do you do?
Of course, you go to Alabama.
You go with MLK.
King was arrested on Good Friday, 1963, during one of the non-violent protests. They held him in isolation. A group of white clergymen said King should not have protested, said he should not have gotten arrested. Said he and other blacks should be patient. Patient.
But they could not. How much longer? How long is too long? Who would tell them but the white folks in charge. No more waiting.
I went to the American History museum last week. They have a lunch counter there where these sit-ins were held. A lovely young black woman dressed in lunch counter gear was heading up a demonstration. She had four white volunteers sit at the counter and us, the crowd, got in real close. She told us to stare, then mock.
And she said focus. Focus. Can you stay calm? Can you stay focused?
Is your goal worth sitting here and enduring this?
I sometimes wonder at the comparison of what I do and how I live to that of the blacks protesting segregation during that awful time. Is it fair? After all, my clients are accused of committing crimes and the protesters were just ordinary black people. But then I remember that at the time, blacks weren’t just people like me and you and you white guy over there. They were all criminals. And they were fighting for justice. Which the white guys thought they were already giving them.
Governor Wallace ultimately changed his position on segregation. He said it was wrong of him to stand in front of the schoolhouse doors preventing blacks from entering. And you know, that’s a good thing. But he fought long and hard to continue the unjust and broken system in the South.
That is, in fact, what we do now. All of us who clamor for longer sentences, more laws, a tougher stance on X, Y, and Z thing. We want to go on, throw the gauntlet down. Not acknowledge that this system is still racist. It is broken. It does not work and does not accomplish what we want to accomplish.
MLK said this. He said
We know through painful experience that freedom in never voluntarily given by the oppressor; it must be demanded by the oppressed. . . For years now I have heard the word “Wait!” It rings in the ear of every Negro with piercing familiarity. This “Wait” has almost always meant “Never.” We must come to see, with one of our distinguished jurists, that “justice too long delayed is justice denied.”
But though I was initially disappointed at being categorized as an extremist, as I continued to think about the matter I gradually gained a measure of satisfaction from the label. Was not Jesus an extremist for love: “Love your enemies, bless them that curse you, do good to them that hate you, and pray for them which despitefully use you, and persecute you.” Was notÂ AmosÂ an extremist for justice: “Let justice roll down like waters and righteousness like an ever-flowing stream.” Was not Paul an extremist for the Christian gospel: “I bear in my body the marks of the Lord Jesus.” Was notÂ Martin LutherÂ an extremist: “Here I stand; I cannot do otherwise, so help me God.” AndÂ John Bunyan: “I will stay in jail to the end of my days before I make a butchery of my conscience.” And Abraham Lincoln: “This nation cannot survive half slave and half free.” And Thomas Jefferson: “We hold these truths to be self-evident, that all men are created equal …” So the question is not whether we will be extremists, but what kind of extremists we will be. Will we be extremists for hate or for love? Will we be extremists for the preservation of injustice or for the extension of justice? In that dramatic scene on Calvary’s hill three men were crucified. We must never forget that all three were crucified for the same crimeâ€“the crime of extremism. Two were extremists for immorality, and thus fell below their environment. The other, Jesus Christ, was an extremist for love, truth and goodness, and thereby rose above his environment. Perhaps the South, the nation and the world are in dire need of creative extremists
I can’t believe that there aren’t people there, who like George Wallace, can have an awakening and realize that our criminal justice system in its current fashion is unworkable. We must stop taking flesh and putting it behind bars, taking it out again, rinse repeat. We must be extremists for justice and for real change.
Focus. Focus. The goal is worth it.Share on Facebook
There is a lot going on in the news right now. Bombs have exploded at the finish line of the Boston Marathon. People are dead. Others are severely injured – run a marathon and then lose a limb or two. Speculation is rampant about who did this and why. My twitter feed is buzzing and I am trying to retreat to the silence within myself. And I re-read an article I posted earlier today and it made me cry again. Each time I look at it I well up. That’s right. Just looking at it and knowing the power it had over me.
I dare you to read this and not feel it. And then ask yourself what about this made you feel the way it made you feel.
It’s not flowery or excessively gushy. It doesn’t have what you would expect from a persuasive writing piece. In fact, when I started reading it I didn’t get it – how was this an article that made all these people well up with tears – but I kept going and I felt in right there – you know, that deep down place that you venture into only on rainy days and Mondays. And today is, oddly enough, both rainy and Monday.
I wish I could write like that. I wish I could bludgeon people over the head with nothing more than a dandelion. Â In the wake of this day, the blood on the streets of Boston, I look at this and am reminded that each of us is capable of so much love.
Don’t forget it people. Just don’t.
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You never get a second chance to make a first impression. But,sometimes its good enough just to get a second chance.Posted: March 29th, 2013 by Mirriam.
Every day it feels like I answer the same question over and over and over again “Mirriam, how can you do it? How can you defend child molesters and rapists?” I am always amazed that no one asks how I can defend murderers (probably because most folks know that some people need killing?) but so it goes.
I am trying to be a bit more social – as I posted about before – and maybe because I seem so normal when I tell people what I do they are sort of stunned. “YOU? But you look so petite and gentle. You have kids. You don’t drink to excess on a regular basis and your shirt is almost never wrinkled.” To which I respond “I know, I know. I am just a fragile gentle flower and my kids are probably going to be okay despite my chosen line of work. And I don’t drink to excess on a very regular basis and I have a good dry-cleaner.” And then I try to play freeze tag or talk about the latest Oprah book or whatever but people will never freaking stop.
And why should they? When what we do is newsworthy and they make tv shows about it and well, there are so many famous criminal defense lawyers these days it just has to be asked about and talked about and you know what, good. I’m glad to do it. But then I get on my soap box. And we all know how that goes.
“Oh, you do it to defend the constitution, right? To make sure people get a fair trial?” Well, um, yes. That’s a part of it.
“You do it because you have to do it since that’s what you swore to do.” Not really, I didn’t swear to defend anyone when I joined the bar.
“You do it because you don’t know if they are guilty but if you knew you would be okay with them getting convicted.” Well, I guess if that makes you feel better.
The answer is no to all of these. I’ve written about why I do this job a million times and I’m not going to do it now. But let’s say I do it because I am a big believer that every single one of us is better than this.
This morning I got an email from Jim Wyda who is our Federal Public Defender. I don’t know that I’ve ever met Mr. Wyda, but we on the CJA panel get emails from him regularly. He keeps us as informed as those who work directly for him at the Federal Public Defender’s office. I think I like him and I have worked closely with some of his attorneys and I think they do a bang up job. Anyway, this email was an article from the New York Times about something called “The Mercy Project.”
So here comes our law lesson for the day. Back in the deep dark stone aged days of the federal criminal justice system, otherwise known as pre-2005, the sentencing guidelines we currently use to establish for how long people should go to federal prison were mandatory. What that means is that the court used a chartÂ to decide the sentence. No one cared who you were, what you did, if you were sick, if you were doing well now, if you were ever going to commit this kind of crime again (we have studies for that, you know). No one cared how you grew up or how bad your part in the crime was. MANDATORY. So, folks who committed pretty insignificant crimes went away for long periods of time. No ifs, ands, or buts.*
And then, one day, it changed. The sentencing guidelines were no longer mandatory. Hurrah! Freedom for all small time offenders!!
What? No? Hmmm. . . So, what changed? Well, the courts were free, after the 2005 decision, to fashion a “punishment that fit the offender and not merely the crime.” ” But, what happens to all of those people who were sentenced under the old system” you so wisely ask. Well, unfortunately, nothing. They stay there and languish and wait until the government is satisfied that they have extracted their fair share of flesh. And in walks the Mercy Project. Under this proposed project, lawyers can work pro-bono and try to find ways to get old cases back into court. Once we do that, we can ask judges to reduce the sentences looking at the folks who are physically standing in front of them and all that they are and all they have accomplished. Neat, huh?
I had a chance, recently, to do something like this. I had a case that was sent back to the trial judge for resentencing. I was so hopeful the judge would want to go back and do the right thing. My client had been in prison already for eight years, she’s a paralegal now, she can cut hair. She has helped so many other women prisoners (many came to speak for her at sentencing) and the judge did do what we asked him to do but did not go below the new guideline range. And that happens. Many judges are still reluctant to vary from that chart. It feels safe to them, especially since most appellate courts won’t touch a sentence if it is in that range. And, if you are a lifetime tenured judge – uh, why not be safe (I’m not really sure about that one but maybe that’s a post for a time where I am feeling bold enough to take on the judiciary? Maybe?)
But here’s the thing. Why not give judges a chance. After all, they really are as human as the rest of us and they can have changes of heart and mind too. They can revisit and rethink and maybe sometimes they go home and come back and think it’s ok, what they did is good and right, and maybe eight years later they realize they wanted to do something different if only they could have. If only. Until it is the end of days we have another chance to make things right and why would we not give those human beings who seem to have all the answers all the time the opportunity to do just that? Let them show mercy the second time around if they couldn’t the first.
I don’t know how many judges would do this thing. How many would admit they were wrong and should have done otherwise. But we won’t know until we try.
I do this job for many, many reasons. But mostly for this reason: because there is goodness in each and every one of us. And we all deserve another chance, even you, Judge.
* Butts, heh. Oh, did you expect a cite or some really intriguing footnote?
Also, to read a better written post on Mercy, and the Mercy Project, read Gideon today.Share on Facebook
Now and again I’m allowed to venture out among normal people and talk to them about the things they do and think about. It seems I do myself a disservice by only engaging in shop talk with like minded people. I mean, what’s the point of all of this preaching to the choir on these things?
Here, for example, is a typical conversation between two criminal defense lawyers. We shall call them Harry and David:
Harry: Â ”Hey, the death penalty is bad.”
David: Â “Yeah, it’s not a deterrent. All the stats show that. And there are so many innocent people who have been exonerated.”
Harry: Â Â ”Totally man. It’s just wrong.”
Harry: Â Â ”That prosecutor is such a douche. I can’t believe he doesn’t know his job”
David: Â Â ”Doesn’t he know he is supposed to seek justice and not just convict?”
Harry: Â ”Man, I don’t know why the judge didn’t take into account the fact that my client was (insert horrible, tragic, can’t even believe a person could go through that and still live event here) when he sentenced him.
David: Â ”Dude, if you couldn’t get the judge to listen on that, we need to overhaul the whole system.”
Seriously folks, isn’t that how it goes? Sure, we may talk in more technical terms and fill in the blanks better. But that is the general gist of it all. So, when I do get out and about and the conversation goes like this:
Me: Â Â Â Â Â Â Â Â “I think the death penalty is wrong.”
Friend: Â Â Â Â Â ” I think child molesters should get put to death.”
Me: Â Â Â Â Â Â Â Â Â ”What if you were accused of molesting children?
Friend: Â Â Â Â Â ”I never thought about it like that.”
Isn’t it our job, we people who write and talk and get on our soapbox, isn’t our job to make them think of it like that. And if we don’t do that then what are we doing?
Gideon wrote eloquently about Aaron Schwartz and his prosecution. If you don’t know who Aaron Schwartz is and what happened to him, I invite you to read here and here. Gideon says, basically, hey you guys who are so up in arms over Aaron Schwartz, you thought it couldn’t happen to you. But it does. It happens to smaller yous all the time. It happens every day. Everywhere. And while what happened to Aaron Schwartz is a tragedy, it is the one we are all too familiar with.
I’ve been defriended in real life and on this world wide computer for my never-ceasing preaching. I am called judgmental by those who hold views that I find appalling. It is disconcerting to me that so many people truly believe that because they don’t “do anything wrong” they will never face the terrible wrath of their very own government. I hope beyond all hope it is true for every last one of us.
For you. And for me.
There is a day when I hope my conversation with people will go like this:
Me: Â Â Â Â ”Hey, how about all that amazing justice that we’ve got here?”
Friend: Â ”Yeah, we really are lucky.”
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I’ve joined a gym.
This is probably not the most provocative way to start a blog post. If you stop reading now I will understand. I mean, I’m supposed to GRAB YOUR ATTENTION in the first sentence. There has to be a hook. Â A reason for you to look up from twitter or grumpy cat to read this, right? Well, tough shit. This is what I have for you thus far.
I joined a gym. And really, the technical term for it is box. But that makes me giggle. Like a 14 year old boy or a 42 year old woman. And also, it makes me feel pretentious like oh yeah, you turds go to a gym. I go to a, er, um (box).
I’ve joined this cross-fit craze and I am a true believer. So, if you think this post is about cross-fit and how awesome it is, it kind of is. Because it is awesome. After 6 weeks I feel stronger, I feel healthier and I feel mentally more alert (keep the commentary to yourselves). But really, this isn’t about how great my gym is. It’s a warehouse set up with ropes and rings and barbells and kettlebells and terrible things called prowlers. There are orange home depot buckets placed strategically throughout in case you lose your lunch (haven’t seen it happen yet). The workouts are always interesting and challenging and, while intimidating at first, the coaches (yes, you get coaches like for real) are there to cheer you on and tell you when you suck and make you better.
I go to a place called Crossfit Rubicon here in town. Sometimes I go at 5:30 a.m., other days I’m at the 4:30 pm class. Â One day I went at noon. And that day, my friends, is the reason for this post.
I don’t write much about Afghanistan anymore. My dad is still there working hard at rebuilding the health care system. It’s going okay, but of course it has it’s share of setbacks. I read the news every day and I don’t get the same feeling of panic I did years ago when he first went, when I imagined he was killed in every roadside bombing incident or every suicide bombing event in Kabul. He was right, after time you just grow to accept the conditions you live in. He lives in a war zone and we live with it.
I went to workout the other day and a woman walked into the box with a “property of Afghanistan athletic department” sweatshirt on. It actually made me stop what I was doing. I was, right then and there, eight years old and being asked where I was from. I said “Afghanistan” and they said “Where is that?”
That was how it was until 2001.
My country was invaded by the British, and we won. The Soviets came next, and my people beat them back. In 1984 people would ask “Where are you from” and I would say “Afghanistan” and they would still say “Where is that?” It would appall me that people did not know that my country was involved in a war with the country we, here, were in a cold war with.
Really, Americans? Really?
So, on Monday, I was at crossfit as a grown woman and there was a sweatshirt with my country-over-there’s name on it. And if I could explain to you how it felt, how surreal it all was, I would. But I don’t know if there is a description for it. Â I felt like I was in another time and place. And it showed. Both Chef (the good owner) and his wife and co-owner, Hronn, had to ask me to please pay attention.
I could not.
She’d been there. To Kandahar. This woman with the sweatshirt. She’d walked among my people. She knew how they smiled and laughed and talked.
There are wounded veterans at the box. There are men with prosthetic limbs who have gone to my country -over -there and seen the land and smelled the air and come back not the same as when they left. I am hit with it every time I walk in there. It is one thing to know it. You know, how you know things in your brain? It is another to see it. To be there with it.
I was eleven when I told my grandmother that the first child to call her grandma was killed by Soviet gunfire. That was just the first. There have been dozens of deaths since then. And those who are not dead but lived through it are injured in places we cannot see.
And I joined a gym where it all comes together for me. My people there and my people here. And it makes the world that much smaller and the workout that much harder.
You know, we are all so good at compartmentalizing. This is my gym, this is my job, this is my history, this is my baggage. These worlds, we hope, will never collide because if they do they will, you know, get it all messy and mixed up and it will be hard to withstand. But in a wholly unexpected place, a wholly unexpected thing has happened. Two of my selves have combined and it seems that I have survived it thus far.
It makes me wonder, what if other parts touch too?
And yes, this happened because I joined a gym.
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