As Ariel Castro was paraded out before the judge for his first court hearing, a shocked and disgusted nation got its first live glimpse at the monster accused of kidnapping three women in Ohio and forcefully holding them captive, for a decade, in his basement, for unthinkable and inhumane abuse of all types. In the midst of all the chaos, an unnamed public defender stood next to Mr. Castro, and while lightly placing her hand on his shoulder, whispered something in his ear. I don’t know what was said. It doesn’t matter. At that moment, while a disgusted nation was eager to lynch him, one lone criminal defense attorney stood by his side to represent him.
Not only was that criminal defense attorney representing Mr. Castro, but that criminal defense attorney was also standing up for the indispensable principle that in a free society, nobody gets locked away in prison without competent representation, due process and a fair trial. It is a hard thing to do, and it warmed my heart to see. I smiled as I proudly went to court that same day to zealously advocate for a man who pled guilty to a horrendous sex crime.
As the Jodi Arias trial extravaganza was winding down, spectators were tripping all over themselves to get an autograph or simply touch prosecutor Juan Martinez who has taken on an almost hero-like status. He did a good job prosecuting Jodi Arias. Indeed, he got a first-degree murder conviction. It was an unprecedented carnival-like atmosphere outside the Maricopa County Superior Courthouse when the verdict was finally read. The nation’s response was akin to winning the Super Bowl. I had a premium lower box seat. I was a legal commentator for the local NBC News television affiliate’s six-hour continuous coverage, analyzing the verdict from every possible angle. Jodi Arias was possibly the most hated person in America.
I suspect nobody asked criminal defense attorneys Kirk Nurmi or Jennifer Wilmott for their autographs. Unfortunately, they are not seen as heroes. I suspect many people are very upset with them simply for representing Jodi Arias. However, they are the real heroes. They had the harder job. They were the ones ensuring due process. There is no possibility of a fair trial without them.
Practically speaking, this was not an evenly matched fight. Nurmi and Wilmott were forced into trial by a county attorney with the option to end it anytime with a plea bargain. The mountain of evidence was stacked against them. Their hardheaded and difficult client was a confirmed and admitted liar. Their opponent had endless resources, virtually unlimited investigative abilities, no client management issues, and all the sympathies of a totally engaged nation of spectators. Every move they made was scrutinized and criticized by legal commentators from across the nation.
However, it was Kirk Nurmi and Jennifer Wilmott who satisfied this particular indispensable requirement for a free society. In a case that was difficult for countless legal, professional, and moral reasons, they courageously stood for due process and therefore for freedom. As a fellow criminal defense attorney and as an American, I am proud of them.
When I represented Elizabeth Johnson in the national high profile case sometimes referred to as the “Baby Gabriel Case,” it was clear to me the general population hated her. I received hate mail simply for representing her. People were mad at me. I suspect most people would have been happy to lock her away forever without any trial. Especially because of those treacherous circumstances, I absolutely loved defending her.
Real criminal defense attorneys relish an opportunity to protect the rights of those accused of heinous crimes. Indeed, it is those very cases where society’s temptation to cut corners is greatest. Any society can claim to be a free society, but these are the cases where a free society earns its stripes. So long as the standard is high in the most vile or unpopular cases, it will remain high for all cases. Due process is guaranteed for everyone; even those accused of the most horrible crimes.
Championing the rights of the most unpopular defendants is not in the blood of all criminal defense attorneys. In my career, I have been asked to take over cases from other “criminal defense attorneys” who could not stomach the substantial challenges involved in representing hugely unpopular defendants. With disappointment toward the other lawyer masquerading as a criminal defense attorney, I have always agreed. Indeed, I have never refused any case because of the heinousness of the government allegations lodged against another human being.
Our 2nd President, and well respected revolutionary and founder of our country, John Adams recognized this indispensable principle of a free society. As a criminal defense attorney, he accepted representation of those reviled British soldiers accused in the Boston Massacre. It didn’t help Adams’ popularity with his fellow Bostonians. In addition to exonerating several of them, he forcefully made the point that even the most hated people are entitled to a fair trial in a free society. He accepted no compromise on this principle.
I am disappointed over the magnitude of the lost opportunity to make a dramatic and principled statement to the world that was lost with the death of Osama Bin Laden. Arguably the most hated man in the world, it was easy for many Americans to simply accept a summary execution along with an almost immediate burial at sea. Because of what they saw on television or read in the newspaper, they were convinced of his guilt. I don’t know what facts and evidence would have been presented at his trial. We will never know.
I don’t know if taking Osama Bin Laden alive was possible. However, if it was, I can think of no better statement about an absolute commitment to a free society than a scrupulously fair trial and appellate process for him. We could have been the envy of and a wonderful example of an absolute commitment to due process for the entire world, including all of Mr. Bin Laden’s followers, to see.
Totalitarian regimes are always good at putting people behind bars. The people who put them there are always seen as heroes. However, it is impossible to have a free society without real due process that necessarily includes competent and effective representation before, during and after a fair trial. Without competent real criminal defense attorneys, there can be no free society. We ought to value the indispensable requirements for freedom as much as we value merely saying we love freedom.
We should stop pretending we actually live in a free society. Rather than the “land of the free” as many Americans pretend we have, we more accurately can say we live in the “land of the incarcerated.” Sadly, America has the highest incarceration rate in the world measured either by raw numbers or by percentage of our population. As such, we cannot honestly claim to be the land of the free. I wonder how much our love for prosecutors and dislike of criminal defense attorneys is responsible for this horribly un-American situation.
Indeed, our entire concept of due process is currently under attack. I once believed the Democrats had more respect for the concept of due process and civil liberties than the Republicans. I now know better. My previous support for that belief was partially based on the legal positions of the former United States Attorneys General Ashcroft and Gonzales. These men were the top lawyers in the nation; responsible for ensuring our legal principles are adhered to and the Constitution is followed. Republican President George W. Bush appointed both of these “top lawyers.” Both men were often and legitimately criticized for their support of torture, surveillance of Americans and clandestine government behavior.
When Democrat President Obama appointed Eric Holder to be the next United States Attorney General, there was optimism he would reaffirm our absolute commitment to due process. Indeed, he criticized his Republican predecessors and promised to oversee a new area of civil liberties under President Obama.
After promising to change course from his Republican predecessors, Attorney General Holder then endeavored to become the worst Attorney General in American history with no regard whatsoever or even total disdain for civil liberties and due process. Attorney General Holder apparently supports indefinite military detention of Americans, Presidential kill lists, unjustified seizures, warrantless surveillance of Americans, extrajudicial “national security letter” subpoenas of personal information, harassment or worse for government whistleblowers, and nullification of Miranda Rights.
However, all the aforementioned disgusting transgressions against civil liberties and due process pale in comparison to arguably the most un-American and egregious statement ever uttered by any lawyer. During a speech given at Northwestern University School of Law on March 5, 2012, Attorney General Eric Holder declared, “The Constitution guarantees due process not judicial due process.”
I suspect the only reason there is no loud demand for Attorney General Holder to be removed, is the failure of people to either contemplate or comprehend the magnitude of his twisted statement. Quite simply, if the judiciary is removed from administering due process, there is no due process. We would then live in an unrestricted absolute dictatorship. If Attorney General Holder has his way, both the 5th Amendment and 14th Amendment’s Due Process Clauses could accurately be rewritten to say, “No person shall be deprived of life, liberty or property unless a representative of the government unilaterally decides to do so.” Attorney General Holder’s statement also causes me to speculate about the reasons why any person would advocate for such an anti-freedom position.
While it is technically true that our Constitution does not use the word “judicial” preceding the words “due process” in either the 5th Amendment or the 14th Amendment, such a construction is antithetical to what the framers of the Constitution were trying to accomplish. They were trying to get away from a king not establish one.
As a country, we have entirely lost sight of what is most important in many areas. We are much more interested in discussing the sex laden and gruesome details of the relatively unimportant Jodi Arias trial than we are in discussing why the Attorney General of the United States is advocating no less than the overthrow of arguably the most important concept in our Constitution. I don’t know whether to be more shocked that Attorney General Holder uttered such an anti-freedom statement or that the American people don’t seem to care.
At the end of the day, real criminal defense attorneys and real freedom loving civil attorneys are the ones who must and do defend and protect due process and freedom. No government agency can be trusted to police the police state. I’m not saying prosecuting people who commit real crimes isn’t also a necessary function for a free society; it most certainly is indeed. However, it is the criminal defense attorney who does the dirty work and the heavy lifting for freedom, not the prosecutor. Only independent real criminal defense attorneys and civil rights attorneys, who protect the rights of people, especially in hard unpopular cases, can be trusted to get the job done.
However, the most these honorable and courageous attorneys can do is to plead their clients’ cases in court. If the courts do not step up and protect freedom, it will most certainly be lost. Indeed, it is the United States Supreme Court that bears most of the responsibility for miserably failing us to this point. The Federalist Papers describe the judiciary as the “guardians of the constitution.” Our “guardians” have knowingly allowed villains to boldly walk right past them in numbers too great to recount in this short article. Indeed, our “guardians” have all but abandoned their posts.
I wonder if the negligent guardians can really be blamed. After all, the people they are ultimately charged with guarding no longer seem to have much of an interest in a free society beyond cheap lip service, patriotic songs, pledges of allegiances and symbolic flags.
Many of our fellow Americans seem content or even pleased with the ever encroaching police state. Too many people only support freedom when others use their freedoms in ways they personally approve. I refer to those people as “freedom wimps.” To me, supporting freedom includes the requirement of tolerating the fact that competent adults have a right to use their freedoms in any way they choose so long as they are peaceful. It matters not that I personally disagree with their peaceful choices.
It has been said that people get the government they deserve. I think that is appropriate and fair. The only problem is the rest of us who advocate for a free society will also be stuck with the government “they” deserve too. Unless and until we succeed at winning hearts and minds for freedom, we will not ever again be able to honestly refer to ourselves as the “land of the free.” I wonder what John Adams and Thomas Jefferson would think about America not being the land of the free.
May 15, 2013
Marc J. Victor [send him mail] is an Arizona State Bar Certified Specialist in Criminal Law and can be reached via his law firm website.
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