The Decency Dilemma

Does decency have to be justified or explained? I recently wrestled with whether it was right to show professional courtesy to a government lawyer.

1. A client seeks relief from the harsh conditions of Jessica’s Law.One of my clients seeks relief from Jessica’s Law. He doesn’t want to have to find housing more than 2,000 yards away from a school/park/place where children "congregate", even though he is a parolee and a registered sex offender.

The law is hard to comply with. It’s hard to find such housing. Few houses are that far away from those locations. And local ordinance frequently forbids more than one un-related sex offender from living in one home. So sex offenders can’t live with other sex offenders when they find rare compliant housing, and that adds to the burden of finding a place to live.

So my client filed a petition for a writ of habeas corpus for relief from Jessica’s law. I was appointed to represent him.

2. The government blunders.Now, after my client filed his petition, the judge ordered the government to file a return. That’s a document that states that they oppose my client’s request for relief, and it explains why. The government didn’t file the return.

So the judge issued an order for the government to explain why he shouldn’t grant the petition because the government failed to file a timely return.

I was in court for the hearing to determine whether the judge would grant my client’s petition for failure of the government to file a timely return. The attorney for the government is a nice women. I’ve dealt with her before. I spoke with her, and, without going into detail, I thought that her reasons for her failure to file a timely return were plausible.

Our case was called. We went up and stood before the judge. The judge scolded the government lawyer. Then he turned to me and asked for my position on whether he should grant my client’s petition because the government failed to file a timely return.

3. My memory greens.Now, let me back up. Let me go back almost 30 years.

I was a young deputy district attorney with big ambitions and a boss who hated me. One day, there was a hearing on a petition for a writ of habeas corpus that a colleague of mine had failed to file a timely return to.

My boss loved him, my colleague, as much as she hated me. So, on the day of the hearing, she sent him to handle the calendar at a remote court. She ordered me to attend the hearing on his failure to file a timely return to the petition for a writ of habeas corpus. If the case blew up, it would blow up in my face, not my colleague’s.

At the hearing, the judge gave my office another chance to file a return. But before he announced that, he chewed me up. I knew I wasn’t at fault, but the judge so skillfully humiliated me that I felt shame.

Now, the habeas petitioner’s lawyer was at that hearing. He was old, and he was old-school. He tried to tell the judge that I was not the lawyer he had been dealing with, that I was not the lawyer who had failed to file a timely return. But the judge proceeded to crush me between his judicial teeth anyway.

But when the judge started to chew me up, the petitioner’s lawyer came over to me, and he stood by me as I was being chewed on by the judge. He did this to show solidarity with me. I have always remembered that lawyer as deeply decent.

This story percolated under my skull as I waited for the recent hearing to start. I even shared this story with the government lawyer.

4. I act based on my memory of decency shown to me.This story was on my mind when the judge called the recent case and the lawyers went forward. It was on my mind when the judge asked for my opinion about what he should do. When he asked for my opinion, I took no position. The judge seemed mildly surprised. Then he gave the government one more chance to comply. That’s what I thought he would do.

5. Moral dilemma?But my conscience has been pricked by my failure to argue for granting my client’s petition. I think I did the moral thing, but it’s an open question whether I served my client well. After all, if I had argued for the immediate granting of my client’s habeas petition, maybe the judge would have ruled the other way, and maybe my client would have then and there had the relief from Jessica’s law that he sought.

Maybe this is what’s called a moral dilemma.

 It wouldn’t be a moral dilemma for some lawyers. Once, our co-counsel, an enormously talented trial lawyer, became ill just before trial started. We tried to postpone the trial so that he could become well and participate in it. The other side opposed the postponement and convinced the judge that our co-counsel wasn’t really ill. That was horseshit. Of course he was ill. But we had to proceed to trial without him, because the judge rejected our request for a postponement.

Later, in a court filing, the other side acknowledged that our co-counsel was in fact ill. Their claim that he had been malingering had been opportunistic.

I consider their actions indecent – misleading the judge about their true opinion and exploiting our co-counsel’s illness for tactical advantage. They would have had no trouble deciding what to do if they had stood in my place at the hearing on granting my client’s habeas petition.

The attorneys who falsely claimed that our co-counsel was malingering acted like a great many lawyers would. There was a time when professional courtesy was common. It’s rarer now.

6. My practice.This is the position I routinely take: I show professional courtesy to lawyers whom I consider ethical. To hard-edged lawyers, I show a hard edge. That’s the line I draw.

So a few years ago, a lawyer won a motion against my client. He won by lying to the commissioner about a telephone conversation with me. A few weeks later, he missed a court hearing. The commissioner asked me whether he should dismiss the lawyer’s case against my client. That isn’t the usual practice when a lawyer misses a court hearing; but for some reason, the commissioner did not follow the usual practice of postponing the hearing and ordering the missing lawyer to be present. My heart did not beat once between the moment that the commissioner asked me this question and my answer that, yes, I wanted the case against my client dismissed. The commissioner dismissed the case. I never lost a minute of sleep over that.

In that case, I was glad to exploit an unethical lawyer’s calendaring error to bring an end to his client’s case. In the recent case, the lawyer’s decency made me forbear.

             7. My practice justified.

Now, was my client harmed in the recent case by what I did? I don’t think so. I don’t think the judge was going to deny the government one last chance. I believe that. I could be wrong. But I think he wanted me to be part of his pageant of piling on this government lawyer without actually ruling against her.

So I don’t think I harmed my client because I didn’t join in turning the screws. But I can’t be sure.

On the other had, I believe that my clients benefit from my good reputation among honorable lawyers. That’s a strategic benefit that my clients have because I routinely extend professional courtesies to lawyers of good will on the other side.

These benefits are intangible but real. As a young prosecutor, I usually knew the reputations of the lawyers I dealt with. And I cut breaks to lawyers with reputations for decency. I think other lawyers did too. I remember a colleague saying, "When some lawyers show up, you assume their clients are guilty; but when [lawyer with a reputation for good character] shows up, you assume that his client is innocent, or that his client is over-charged [meaning charged with crimes too serious for what really happened]."

I think that some government lawyers think like that today. I want to the like those lawyers I knew when I was a young lawyer, who got breaks for their clients based on their good reputations.

I believe that I should not sacrifice that ethic that benefits my clients for the sake of a possible tactical advantage at one hearing in one case.

So I think I did right. I think there’s a practical justification for what I did; and a moral justification; and a justification in a dying-but-still-clinging-to-life ethic in the legal profession.

"What is truth?"

A California state seal adorns a wall of every California state courtroom that I can remember. It has a bear, it has a ship, it has a harbor, and it has grapes. It has Minerva, the Roman goddess of wisdom. It has the word "Eureka". That means "I have found it."

But what if instead of "Eureka", it said "What is truth?"

You wouldn’t feel confident that justice will take place in that courtroom, would you? Finding truth is the first step to justice.

So I want to know, why are judges so bad at finding the truth, particularly when a police officer testifies?

Case in point. I had a motion to exclude evidence at trial, today, based on unlawful actions by a police officer. Now, the cross-examination went better than I could hope. When it was important for a particular gasoline spill to be large, the officer testified that it was large. When it was important for it to be small, he testified that it was smaller.

When a witness plainly changes his testimony to suit the momentary need of his side, and when that witness contradicts himself, it’s pretty clear that he’s drawing on a mental manure pile, not on his memory. And when he contradicts his own police report, and then gives implausible meanings to his own plain words in that report to try to explain away the contradiction, that, for me, erases all doubt.

But the judge found the officer believable. She accepted his testimony as true, and she ruled against my client.

The liars won today.

They do, more and more.

There is no outrage about lying in our times. There’s no penalty for lying, if you're a police officer or a lawyer. Judges accept the testimony of lying officers. This habit of judges is so widely known that criminal-defense attorneys have a rueful saying: "That’s a lie only a judge would believe."

Today, the judge looked past what was obvious. She didn’t use logic or common sense. She looked at the officer’s uniform and his badge, and at that point she knew which way the motion would go.

It takes so little to make people lie. Why did this officer lie? For the same reason that sportsmen cheat. He wanted to win. And while he was fouling on the "field", the "referee" was picking her nose. That’s crude, but I’m angry.

And judges don’t penalize lawyers who tell transparent lies. Sometimes they rule in their favor.

Sometimes I feel that the force and power of lies are an irresistible tsunami. Sometimes I feel that the force and power of my opposition is always a little behind the audacity of the next lie.

"What is truth?"

Pontius Pilate said that before he told those who were agitating for Jesus’s death that he found no fault with Jesus. He had Jesus flogged, but that didn’t satisfy the fury of Jesus’s enemies.  So Pilate gave over to torture and death the most loving man who ever lived, the man who was his king.

Jesus told Pilate that all who were on the side of truth listened to him. "What is truth?" was Pilate’s retort. Clearly you cannot be on the side of something that you cannot recognize.

We make choices: we are with Pilate, or we are on the side of truth. We humble ourselves before the truth, or, in our pride, we believe that our right to get what we want is more important than the truth.

My client is accused of receiving stolen property – a motorcycle. He had the motorcycle on his property. He had taken it from a woman, to fix it for her. She was going to pay him when she sold it. The officer asked him where he got the motorcycle from, and he told him. But when the officers called the woman up, she saw that the shit had hit the fan (crude, still angry) and she denied knowing my client, and she denied handing the motorcycle over to him. The officers assumed that she was telling the truth, and that my client was lying. They concluded therefore that he knew the motorcycle was stolen. The woman was probably in cahoots with her jailbird son, who likely stole the motorcyle to begin with.

After today’s hearing was over, I took my motorcycle helmet and walked to the courtroom door. A cop was sitting by the door. Seeing my helmet, he said, "You’d better keep your motorcycle away from your client!"

I replied, "My client is fucking innocent, and I have absolutely no sense of humor about that!" I didn't call him a moron, but only because that didn't immediately come to my mind.

I fervently hope that the jurors, unlike the judge, aren’t flummoxed by truth.

Truth or Consequences

Would you take a drug if it helped you attain an immediate goal, but it also made you lose track of the frontier between reality and your imagination?

1. Reality impairment.As a lawyer, I encounter the (ahem) reality-impaired. I know a lawyer who described to a judge the contents of a document. But what he described was nowhere in the document. And I know that because he had given both the judge and me a copy of it.

He said that the document, a transcript of a meeting, showed my brother (my law partner) refusing to address the issues of the case, instead talking of nothing but the attorney’s fees he hoped to gain if we won. The lawyer meant to convince the judge that we were uninterested in justice and instead were motivated by greed and greed alone. But in reality, Peter discussed at length the issues of the case, and the subject of attorney’s fees never arose, not once. I know this because I read the transcript.

Another example. A lawyer described under oath his phone conversation with my brother. My brother hadn’t trusted him, so he had recorded his own side of the conversation. (You legally can do that without telling someone; but in California, you can’t secretly record both sides of a conversation). This lawyer made embarrassing accusations against my brother. But since Peter had recorded everything that he himself had said, he could supply to the judge, verbatim, his side of the conversation to refute the other lawyer.

I have known both of the lawyers from these examples for a while. One especially (he-who-said-that-my-brother-spoke-of-nothing-but-money) is a strategic liar. He says whatever wins. He’s untethered to the truth.

As years go by, more lawyers are like this.

2. The mind bent.I used to be amazed when someone stated facts that easily could be refuted. I used to believe that this showed audacity of deception.

But then I encountered the same phenomenon with a relative. In all sincerity, with nothing to gain by fooling me, this relative discussed fervently the contents of a document that simply were not there.

Like the two lawyers whom I have talked about, this relative uses falsehoods. If he is angry, he will lie to hurt someone. If someone has made a mistake, he might claim that apocalyptic consequences will flow from that mistake. ("Because of you, I’m going to lose $50,000!") He does this to burden his victim. His lies correctively.

Have lies dimmed the ability of my relative and these lawyers to know when they are telling the truth, and when their words only express what they wish were the truth? Does this happen when you use lies? When you use lies, do they make you blind?

3. The malleable mind.This conforms to what most people know about the mind.

For example, most people don’t remember their dreams. But if you want to remember your dreams, you should keep a pen and paper by your bed. When you wake up, immediately write down what you remember from your dreams. In time, you’ll remember your dreams without writing them down.

The act of writing down your dreams tells your mind that it’s important to remember them. Then your subconscious mind starts automatically to store them in a place that your conscious mind can reach.

Names are another example. If remembering names is important to you, you tend to remember names. I want to remember names. So over time I’ve taught myself to do so. I’m not great at it, but I’m better than I was. I’m better than most people who don’t care to remember the name of somebody they’ve just met.

Moonwalking with Einstein: The Art and Science of Remembering Everything is a book about memory. In one chapter, it talks about a memory experiment. For weeks, a test subject was tasked to remember random numbers. For weeks, his memory for randon numbers was ordinary. But then, he started to be really good at it. He became really good at it without training, just by constantly doing it.

The mind responds to demands put on it. It becomes stronger or weaker based on what it’s called to do over time.

Scrupulous truth-telling is like that. If you’re scrupulous about the truth, your mind responds by vividly delimiting reality. But when you wilfully choose falsehood, that tends to dilute the reality-delimiting power of the mind.

I hypothesize that scrupulousness about truth trains the mind to know reality. In contrast, a habit of lying instructs the mind that truth is unimportant. And it compromises the mind’s ability to know reality from imagination.

4. Proposed experiments.I wish psychologists or sociologists would put this to scientific proof. They could make test subjects do an exercise, success at which will earn the test subjects something that they value. Then the test subjects can be asked to self-report the outcome, not knowing that they had been watched. Then, they could be given a test to determine their ability to distinguish reality for un-reality. I’m supposing that the scrupulously honest ones will do better at this test than the others.

Or neurologists could study the brains of truthful persons, and compare them to those of known liars. ("Well, ladies and gentlemen, in 87% of liars, there was a 34%-or-more increase in the size of the mendacious-deludus portion of the brain.")

                    5. Doesn’t everybody?

Maybe a liar knows the line between truth and imagination, but not the difference between himself and someone who values truth. He himself little-values truth, so he assumes that everybody little-values truth.

So when he transparently lies, he knows that everyone will see through him. But he doesn’t care, because, in his mind, nobody cares about the truth. It’s not that he can’t handle the truth. It’s just the opposite: he can’t be bothered with it.

6. Truth or consequences.My personal observations drive these conjectures, and these conjectures have no better origin than that. But if I’m right, one day our society might not share the common ground of reality. Because as time passes, people become more and more untethered to the truth.

The habit of lying is like a potent drug that gives an immediate benefit, but it has terrible side-effects.

And over time, even the short-term gains will subside. Because in our time, people still tend to believe what they hear. A judge, for example, usually is slow to assume that the lawyer before him is lying. Because society is presently based, in large part, on trust. (Not too long ago, the term "liar" was a fighting word.)

But as liars multiply, trust diminishes. In time, credulity will wither. It will wither in law, in business, in journalism, in politics; then in teaching, then in church, then in family. And then we’re hammered. Truly, truly hammered.

Because a society that cannot share reality as common ground is a society of atomized reality. Atomized reality is chaos. A highly cooperative, integrated society such as ours cannot function in chaos.

                      7. A house divided.

 Lincoln knew that the nation could not survive half-slave and half-free. He sorrowfully but resolutely waged war that the nation would be all one or all the other.

So with truth-telling and lying. Truth-telling and lying don’t rule discourse and men’s minds and women’s minds equally like co-regents. One rises while the other falls. Society will move toward one or the other. There will be no stasis, no equilibrium. And to become a society of liars is dreadful to contemplate

                     8. Back from the brink.

 Most of us are limited in our influence. We have great control over ourselves; some influence over our loved ones and friends; and little influence beyond our immediate circle.

That doesn’t make us helpless. Our solution to the encroachment of falsehood lies in furrowing our souls in straight lines. Our solution is to be zealous in truth - fanatical, even. If we are zealous, we can often influences our circle of acquaintances by our example. If heaven blesses the effort, then the virtue of truth will ripple outward in circles of verity that spread wherever someone commits himself to truth.

It will take a movement like this to rescue ourselves from what we are becoming, because now all the expansion is in the other direction. Liars plant lies. They arrogate to themselves a God-like authority to invent a world to their liking with nothing more than will and words.

We must not as a nation swallow that poison.

Lawyers who Lie

1. Lies: a true story.

A lawyer from [Orange County law firm] opposed my motion for attorney’s fees with a brief dense with lies. Five-lies-on-a-page dense. This-drains-me dense. Pull-back-the-refrigerator-and-watch-the-cockroaches-stream-up-the-wall dense. And he didn’t only lie about things beyond proof – like what motives percolated under his skull. He lied about record evidence.

He and my law partner had had a meeting at his office, and this lawyer had had a court reporter record the meeting. He claimed in his brief that my law partner had refused to engage the issues at hand, but instead had obsessed about the attorney’s fees my law partner wanted to win. This made my law partner look shallow and greedy, an impression sure to sour the judge on our cause.

The lawyer attached the transcript from the meeting to his brief. I examined it. His claim that my law partner had obsessed about attorney’s fees was no exaggeration. It was outright fabrication. There was no mention of attorney fees in the entire 20 pages of the transcript. Nada. Null. Nyet. Zero. Zip.

To be clear: this lawyer made corrupt claims that could be proved so just by reading a transcript. He himself supplied that transcript to the judge and to me precisely so that we could see whether he was telling the truth.

This is more than inexplicable. It is dead-hooker-in-the-freezer inexplicable.

2. Lies as a growth industry.

This is also increasingly common. There have always been lawyers willing to exploit your inability to prove them wrong. Increasingly, though, contrary proof doesn’t matter. It’s like the philanderer in caught in bed with his mistress, telling his wife, "Who are you going to believe, me or your eyes?"

Another example: a prosecutor named [name withheld] filed a brief to gain the opportunity to continue to prosecute my client. He lied in the brief. To prove his points, he cited page and line of a hearing transcript. The problem was that the evidence wasn’t there. It was nowhere in the transcript. His whole Statement of Facts, a page long, contained one – one – sentence without a falsehood. It wasn’t just lying. It was an orgy of misrepresentations.

It torments me that a prosecutor, with all of his power to ruin lives, would lie to try to put a man in prison. St. Augustine wrote the Christian classic Confessions. In it he regretted that in his early life he taught rhetoric to would-be lawyers. But by way of mitigation, he explained that he taught the tricks of rhetoric so that the guilty might go free, not so that the innocent might suffer.
I’ve given two examples, but I could go on.

3. Stabbing the heart of the profession.

As pernicious as lying is in a prosecutor, it is unpardonable in any lawyer. After all, truth and justice supposedly are our reason for being, our whole purpose. To think that we can grow justice from lies is like thinking that we can water plants with piss. And falsehoods poison the pursuit of truth.

So when a lawyer lies, he stabs the heart of our profession. Like when a pastor molests a young boy, afflicting him with a life-long spiritual malaise. Or when a doctor makes his patient sick. Or when a police officer arrests an innocent man.

Not only lawyers lie. But because the justice system is entrusted to our ministrations, lying is betrayal. And because the justice system is dedicated to the discovery of truth, and truth is sacred, lying lawyers desecrate that system.

4. Personal confession.

I don’t want to present painted-on piety. I have had clients whom I suspected of lying, or who were not completely honest. And falsehoods are not unknown to my own unclean lips. But I’m a amateur, a dilettante. I’m the guy in the weekend touch-football league watching a pro quarterback. I’m a rag-picker among dissemblers. But I know swami masters of mendacity. I know aristocrats of verbal embroidery.

5. Scruples leave, but sensitivity remains.

Lying might be more common and less cabined than before, but one thing hasn’t changed: sensitivity. People with no scruple about lying resent being called liars. Of two prosecutors whom I have called out for factual inventiveness in the last two years, neither now speaks to me. But if that is the price of speaking the truth, I welcome their hatred.

I suppose that these prosecutors have no choice. After all, if they let me call them liars, soon everybody would. Their life is the opposite of the aphorism: "Take care of your character, and your reputation will take care of itself." They think their reputations are under attack from me; but their reputations really are under attack from their characters.

6. Tracing origins.

Why the flood of falsehoods in these times? No easy answer presents itself. But I suspect that it has something to do with the ascent of lies in politics and the media. Lies stream from high office and from costly media centers. Success and status make mendacity appear to be the easy way to rise to the top.

And judges seem indifferent to dishonesty. I have never seen a judge penalize a lawyer for lying. This permissiveness emboldens the veracity-impaired. With judges unwilling to penalize dishonesty, the upside is winning, and there is no obvious downside.

Looking for a religious reason for this infernal trend, maybe we live in an era of cheap grace. We believe that salvation is easy. It’s all grace. At one time, the concept of grace-plus-nothing was a humble acknowledgment of our entire dependence on God for our salvation. That grace evoked gratitude, and that gratitude evoked effort to please the one who conferred salvation. But in this era of take-for-granted grace, we feed at the table of sin, and when the grim reaper presents the check, we jamb our thumb over our shoulder and say, "Give that to the guy over there, dying on the cross." So, to the modern American mind, lying or truth telling isn’t a matter of hell or heaven.

But the problem is not only a feeble theology of grace. Quasi-rigorous religious sensibility is increasingly rare. Truth be told, few among us care more to please God than to satisfy our craving for comfort, property, consumer goods, and stimulation.

7. Earthquake warning.

It drains me to deal with liars. I was drained to deal with this brief I talked about at the beginning. Facts and reality are the foundation of everything else. On a foundation of facts, we construct values, love, politics, future plans, finances, health-care decisions, family choices, friendships, and religion. When confronted not just with lies but with brazen lies that proclaim that truth doesn’t matter, it’s like fissures open up beneath me.

And these fissures threaten society’s foundation. Democracy depends upon debate. We debate values, ideas, the direction of our country, and who should lead it. But we can’t effectively debate these high matters if we lack agreement on basic facts. Ability to agree on basic facts cannot be assumed in these times.

8. The promise.

If lying succeeds, why tell the truth? Someone I respect recently said that if lying succeeds, it’s brilliant to lie. Why is he wrong? For two reasons. First, in God there is no shadow of turning; his adversary is the liar and the father of lies. When you chose to be a truth teller or a liar, you take sides. Second, if you tell the truth, you dwell in fellowship with other truth tellers. You live in their respect. That fellowship and that respect have innate value.