Less Smart than we Think

We are often overconfident. Sometimes that wrecks lives.

1. The case of a serial rapist.

A man was raping elderly women in Long Beach. This man would find apartments of elderly women, strip off his clothes, enter the apartment (usually through an open window), and sodomize his elderly victims. The Long Beach Police were frantic to end the lengthening chain of violated elderly women.

They brought in tracking dogs. The tracking dogs followed a scent, allegedly, to an apartment building. The scent, allegedly, led to a particular floor. On that floor, there was an apartment with the lights on. The police knocked on the door, but nobody answered. The police concluded that the perpetrator was in that apartment, and that he did not answer the door to impede the investigation.

The police learned who lived in that apartment. It was a man named Jeffrey G. They put together a photo lineup with his picture in it. The lineup had five Hispanics and one White guy. The White guy was Jeffrey G. An expert, a former detective who was also the former chief of an urban police department, later said that that was the most suggestive photo lineup he had ever seen used. Most of the victims identified the photo of Jeffrey G. as the perpetrator from the suggestive photo lineup.

The police arrested Jeffrey G. for the serial rapes. He worked for the City of Long Beach, and, when the police came to arrest him, he thought that his fellow city-employees were pranking him. His mother hired my firm to to defend him.

We started to accumulate evidence of innocence. We found that on the night of one Long Beach rape, our client had been visiting his mother in Grand Terrace. He drove back to Long Beach in the morning. On his way back, he got a traffic ticket. Also, within twenty minutes of another rape, Jeffrey G. was 15 miles away in a grocery story, cashing a check. The check had a time-stamp.

The police were accumulating evidence, too. But we learned that the police were shading their recollections to tilt the evidence toward proving the guilt of Jeffrey G. In fact, the real perpetrator committed one of his signature rapes while Jeffrey G. was in custody. The police suppressed news of that. They did not tell us that the Long Beach serial rapist had struck again while Jeffrey G. was in jail for  being the Long Beach serial rapist.

But Jeffrey G. caught a break. In one of the rapes, the perpetrator had ejaculated on his victim. The perpetrator tried to lick off the semen, but he missed a little. This semen was collected as evidence. In another case, after he sodomize his victim, the perpetrator exited through a window. As he exited the window, a little fecal matter, with a little semen on it, fell from the tip of his penis onto the window sill. This evidence also was collected. These two incidents, one at the beginning of the chain of rapes, and one toward the end, gave DNA to compare to the DNA of Jeffrey G. It did not match.

We were not surprised. But everybody in law enforcement was stunned, from the detectives to the prosecutors. They were so certain that Jeffrey G. was guilty that they concluded that somehow the wrong DNA had been tested. So they sent a detective by airplane to hand-carry the DNA samples to the Justice Department laboratory in Sacramento, to make sure that the right samples were analyzed. The results were the same: Jeffrey G. was innocent.

The case was soon dismissed. But the Long Beach police continued to be certain that a guilty man had somehow been freed.

Years later, the actual perpetrator was caught. He was not even the same race as Jeffrey G. He and Jeffrey G. did not look alike. Jeffrey G. also was much taller. But the perpetrator’s DNA matched.

This tale should make us humble and cautious. The Long Beach detectives did not think they were sending an innocent man to prison for the rest of his life. They were sure that Jeffrey G. was guilty. Their certainty grew from the moment nobody answered the door of Jeffrey G’s apartment. Jeffrey G. wasn’t home. He had left the lights on to fool potential burglars.

The Long Beach detectives drew a conclusion that they should not have drawn from so little evidence. Being certain, they then started sculpting the evidence to create the appearance that Jeffrey G. was guilty. For example, a detective told us about certain evidence that she had observed; when we pointed out that that evidence actually helped our client, she gave different testimony under oath.

This points out a human trait: we tend to form conclusions before the evidence supports them. We are sure about things that we should not be sure about. This can lead to terrible consequences. It almost sent an innocent man to prison for the rest of his life.

2. The case of the self-made man or woman.

Sometimes, we enjoy a measure of material success in life. Our business thrives. Our investments prosper. Like the Long Beach detectives, we infer from that what is not warranted. We might conclude that we have prospered because of our own virtue, talent, and effort.

And, in our pride, we might condemn those who have not prospered. We might consider them less worthy than ourselves.

In the eyes of the world, this is right. The idea of a self-made man or woman is prominent in our culture.

3. The Bible’s point of view: Hannah.

But it defies the Biblical point of view. The Biblical point of view is that we are all subject to God, time, and chance.

A woman named Hannah who lived in ancient Israel was childless. She was devastated because of that. She prayed to God to open her womb. A priest saw her praying in the temple. He thought she was drunk because her lips moved, but he heard no words. (Apparently, that was not customary in that era.) She mad a vow to God, if only he would give her a son.

And God did. That boy became the prophet Samuel.

That woman’s prayer of gratitude will live forever (1 Samuel 2:1-10 (KJV)):

1And Hannah prayed, and said, My heart rejoiceth in the LORD, mine horn is exalted in the LORD: my mouth is enlarged over mine enemies; because I rejoice in thy salvation. 2There is none holy as the LORD: for there is none beside thee: neither is there any rock like our God. 3Talk no more so exceeding proudly; let not arrogancy come out of your mouth: for the LORD is a God of knowledge, and by him actions are weighed. 4The bows of the mighty men are broken, and they that stumbled are girded with strength. 5They that were full have hired out themselves for bread; and they that were hungry ceased: so that the barren hath born seven; and she that hath many children is waxed feeble.

6The LORD killeth, and maketh alive: he bringeth down to the grave, and bringeth up. 7The LORD maketh poor, and maketh rich: he bringeth low, and lifteth up. 8He raiseth up the poor out of the dust, and lifteth up the beggar from the dunghill, to set them among princes, and to make them inherit the throne of glory: for the pillars of the earth are the LORD's, and he hath set the world upon them. 9He will keep the feet of his saints, and the wicked shall be silent in darkness; for by strength shall no man prevail. 10The adversaries of the LORD shall be broken to pieces; out of heaven shall he thunder upon them: the LORD shall judge the ends of the earth; and he shall give strength unto his king, and exalt the horn of his anointed.

Hannah's prayer gives glory to God for raising up and for putting down

4. The Bible’s point of view: David.

David, a man after God’s own heart, fought Goliath. When David approached Goliath, Goliath told David that he would kill David and give David’s flesh to the birds of the air. David answered. And he did not speak of his own prowess as a fighter. He spoke of the power of God. He said (1 Samuel 17:45-47 (KJV)):

45Then said David to the Philistine, Thou comest to me with a sword, and with a spear, and with a shield: but I come to thee in the name of the LORD of hosts, the God of the armies of Israel, whom thou hast defied. 46This day will the LORD deliver thee into mine hand; and I will smite thee, and take thine head from thee; and I will give the carcases of the host of the Philistines this day unto the fowls of the air, and to the wild beasts of the earth; that all the earth may know that there is a God in Israel. 47And all this assembly shall know that the LORD saveth not with sword and spear: for the battle is the LORD's, and he will give you into our hands.

5. The Bible’s point of view: Job.

The book of Job is the story of a good and prosperous man who had everything taken from him, and then he was restored by God to his former prosperity. In his suffering, his friends came and, for a time, sat in silence. But then, in the certainty of their knowledge of God, they spoke out. And they said that Job must have offended God to be brought so low. In fact, the point of the book of Job is that it was Job’s very righteousness that made him a target of a bet between Satan and God.

6. The Bible’s point of view: Ecclesiastes.

And one of the Bible’s more famous passages occurs at Ecclesiastes 9:11 (KJV):

I returned, and saw under the sun, that the race is not to the swift, nor the battle to the strong, neither yet bread to the wise, nor yet riches to men of understanding, nor yet favour to men of skill; but time and chance happeneth to them all.

7. Defiance.

So, for all this Biblical witness, why do we insist that there are self-made men and women? A believer cannot.

We cannot believe that we are completely in charge of our own prosperity or poverty; intellect or ignorance; faith or un-belief; salvation or damnation.

Certainly, we have to cooperate with God to bring about good things. There would be no point to the urging in Proverbs to do right and be diligent if we had no responsibility to choose to do right or to be diligent. We do. The point is only that there are forces unseen that have a great deal to do with the rise and fall of persons, companies, churches, nations, and peoples. To say otherwise is to defy the Bible.

So if we know something, let us be humble about our knowledge.

If we have something, let us be humble about what he have.

If we keep from evil, let us be humble about our righteousness.

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.

Sometimes the Best Teaching is No Teaching at All

I have liked this story, from the Gospel of Luke, chapter 17. It's the story of Jesus and the ten lepers. I repeat it to show how it can be mangled.

11And it came to pass, as [Jesus] went to Jerusalem, that he passed through the midst of Samaria and Galilee.
12And as he entered into a certain village, there met him ten men that were lepers, which stood afar off:
13And they lifted up their voices, and said, Jesus, Master, have mercy on us.
14And when he saw them, he said unto them, Go shew yourselves unto the priests. And it came to pass, that, as they went, they were cleansed.
15And one of them, when he saw that he was healed, turned back, and with a loud voice glorified God,
16And fell down on his face at his feet, giving him thanks: and he was a Samaritan.
17And Jesus answering said, Were there not ten cleansed? but where are the nine?
18There are not found that returned to give glory to God, save this stranger.
19And he said unto him, Arise, go thy way: thy faith hath made thee whole.A kindergarten teacher told this story to her charges, I among them. This was a year or two before the Supreme Court started to take religion out of schools. That started around 1962, and I was in kindergarten in 1961.

So, fine. It’s a good story. It’s dramatic and succinct.

But the teacher apparently feared that we children wouldn’t on our own, with our tiny understandings, suck from this story all of its gospel juice. So she elaborated for our benefit.

And she explained what the story itself failed to say – something that she somehow knew, but didn’t explain how she knew. She told us that the nine lepers who did not return to thank Jesus suffered divine justice on their way to show themselves to the priests. They literally fell apart as they ran. Their disease reasserted itself, worse (apparently) than it was before they saw Jesus.

The teacher's God was a dick, and she wanted our God to be like hers.

Here’s another story she told us. From the Gospel of Mark, Chapter 10, it's the story of Jesus and the children:

13And they brought young children to him, that he should touch them: and his disciples rebuked those that brought them.
14But when Jesus saw it, he was much displeased, and said unto them, Suffer the little children to come unto me, and forbid them not: for of such is the kingdom of God.
15Verily I say unto you, Whosoever shall not receive the kingdom of God as a little child, he shall not enter therein.
16And he took them up in his arms, put his hands upon them, and blessed them.Again, this is a fine story. Children have loved it for almost two-thousand years.

But the teacher wasn’t through with the telling of it at the end of the story. She explained it to us, too. She explained what we did not know, and could not know.

She explained (and I am paraphrasing): "Before Jesus, people didn’t love children. They were just [makes gesture of shunting children away, with a facial gesture of faint disgust]."

Did you know that?

Now, here’s a story she did not tell us, from the Book of Judges, chapter 11. Jephthah was a mighty man of valor, and he was on the cusp of battle. He promised that if the Lord would give him victory over the Ammonites, then, when he returned to his home, whatever came out of his doors to meet him, Jephthah would give to the Lord as a burnt offering.

It turned out to be his daughter.

Jephthah was devastated. But he kept his promise to God.

Now, my kindergarten teacher did not tell us this story. There were probably three reasons for this omission.

First, she probably did not know the story. Looking back, I do not have a high opinion of her deep biblical knowledge.

Second, it might have given us children nightmares. (But is it really worse than certain folk tales?)

And, third, Jephthah’s torment would have been hard to explain, since our teacher had already explained to us that children were loved only after a particular moment in Jesus’s life, many hundreds of years after Jephthah’s daughter became smoke.

But if our teacher had told us that story, I would relish the memory of her explanation of it.

Now, I have no way to judge this woman. She might have been a loving wife and mother; a rock of her neighborhood; a baker of cakes; a consoling shoulder. Or she might have been the opposite. I don’t know.

But I think of her when I think of people who rage against the separation of church and state. I think of her when I think of people who want children to learn about religion in schools, not just in the family, and not just in church or synagogue or temple or mosque.

Don’t mistake me. I’m not shoulder-to-shoulder with the Christopher Hitchens’s of the world, who deem religion malignant. ("God is Not Great".) Count me with people like Francis Fukuyama ("The Origins of Political Order"). Fukuyama has spent years studying societies, and he believes that religion provides cohesion. I believe that, and I believe that in religion there is salvation, like a jewel that surpasses value that will be found by the ones that God reveals it to.

But I don’t expect salvation to come from public schools. I don’t expect that any more than I expect that we were going to be made into good drivers in drivers-ed by those silly 1970's driving-simulators.

If a person enters heaven, then it’s because of God. God may choose to use the prayers of that person’s parent, like St. Augustine’s mother’s prayers for his conversion to Christianity. ("Confessions of St. Augustine".) God may choose to use the example of a Godly parent to call that person, like Corrie ten Boom learned Christianity by growing up with her loving, brave father. ("The Hiding Place".)

Or, in church, a child might be inspired by a pastor, who has walked in the ways of God for his whole life.

Parents and pastors have a stake and a responsibility in the salvation of children. That makes them different than the teacher who sandwiches in a little gospel between social studies and math, who might or might not have a clue.

I don't regret the loss of religion in schools. I think that that loss doesn't leave God without resources, and better resources, too.

So let’s never grow nostalgic for that element of the "good old days". Let's never yearn for a return to a time when teachers, like my kindergarten teacher, were free to fill our heads with the cast-off husks of their own silly notions of religion.

My conscience pricks me. Before I close, I acknowledge teachers who are wise and, so far as I know, Godly.

"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.

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.