5/9/2020
by: Guest Blogger Lawrence Zimmerman
A video shot from a cell phone captures the sickening moment of another young black man gunned down on the streets of America. Ahmaud Arbery clearly should be alive today, his birthday. Nobody deserves death, even if it is justified. In America, death is not confined to this video. Our culture is a violent one - just flip open your laptop and click on any news website. A free press is vital to our survival as a democracy, but the telling of these stories should be based on vetted facts. Richard Jewell just rebounded into our collective consciousness with a book and a movie, a timely reminder to journalists to report facts accurately.
As criminal defense lawyers, we represent all kinds of people. In my career I have represented a convicted Al Qaeda terrorist, an avowed neo-Nazi, a death penalty case involving the killing of a ninety-year old woman, a confessed murderer of two innocent teenage children. Of course, I have also represented many innocent people including someone who absolutely did not burn a highway bridge down while the media reported that he did.
Have I lost some friends representing the “worst” in society? Yes. Truthfully, I am glad those “friends” walked away and stopped returning my calls since I refuse to maintain a friendship with anyone who lacks moral courage. Our job is not for the faint of heart, which is what drives me to get out of bed every day, or truthfully, what often keeps me under the covers. Thankfully, inspiration is in abundance looking at history and other lawyers who have fought for their clients while the public castigated them. Whether it is Gerry Spence fighting for Randy Weaver’s life against the FBI, Edward Bennett Williams fighting for and acquitting Jimmy Hoffa, or Bryan Stevenson fighting to exonerate Walter McMillan, all of us are inspired by their bravery to fight for the accused. My dear friend. criminal defense lawyer Mike Jacobs, is so inspired that he has the dream of one day only representing the most “heinous” in society. Trust me, Mike is not in it for fame, he is an introvert. Recently, he agreed to take on a death penalty case for a nominal fee because he clearly believes in the cause and his client’s case. It is my understanding Bruce Harvey, of “Contemporary Law Blog” fame, would do the same. So would so many other GACDL members as well as criminal defense lawyers throughout America.
Yet, why do some of our colleagues say “Constitution be damned” in this case? Our rights are not dependent on the nature of the allegation. The presumption of innocence is not a sliding scale. It is an immovable rock designed to protect the least of us, the wickedest of us, the best of us, the richest and the poorest. However, I think I know why cases like this one bother my colleagues and it causes conflict in both their hearts and minds. I have been ruminating on this the last few days.
While we are criminal defense lawyers, in our blood we are really civil rights lawyers and whether you lived the movement or just read about it like me, it inspired all of us to take up this part of the law and fight for justice. We were inspired by protests, we were inspired by the nonviolent movement: the bus boycotts, the sit-ins at lunch counters, Medgar Evers, Schwerner, Cheney, Goodman. We are inspired by the lawyers at the Southern Center for Human Rights who toil year after year to fight injustice and cruelty – even for the felons who are in prison for heinous crimes. We read “To Kill A Mockingbird” over and over and still cried when Tom Robinson was murdered for the color of his skin. We have all experienced to a similar degree Atticus’s pain and suffering.
We are all Atticus Finch, Clarence Darrow, RBG, Gareth Peirce (Gerry Conlon), Thurgood Marshall, Robert Jackson, John Adams combined. We represent in our practices a large share of minorities, observe their struggles, the injustices they face, the institutional racism that still defines the American justice system. Clients come to our office with the last of their savings begging us to save them from the brutal machinery that is the State’s wheels of injustice. We lose sleep nights on end, drive to court on two hours of sleep just so we can stop those grinding wheels of injustice. And many, many, many times, sadly, we watch them run over by the machine and all we can do is pack up our briefcase, walk out of the courthouse and drive home and try to sleep it off. It can take weeks for the sadness to leave us or even years. The trauma may leave our bodies, but you know what I mean when I say, it never leaves our soul.
Yes, we as criminal defense lawyers know all too well the inequities faced by minorities caught up in the system. So when we see a black man gunned down, it reminds us of our clients who did nothing wrong but yet were pulled over. We know as Jewish lawyers that expression on a judge’s face in a rural court when we announce our names, hear the comments made, or that uncomfortable time when opposing counsel discusses the New Testament when you just met; we are innately aware of the prejudice and it is not only confined to a small town. We hear judges in the big city make offhand ignorant remarks in open court or in chambers that make us shudder. In many of our cases, we stand shoulder-to-shoulder with the civil rights activists who are now out protesting in Brunswick. Lots of times we are asked by those same activists to take on a case for free. We have seen many people exonerated from death row which confirms in our minds, without a doubt, that innocent people have been executed. Innocent people executed for crimes they did not commit. Go read “Just Mercy,” or save time and watch the movie. It was not one hundred years ago when minorities were framed or lynched; 1987 was only thirty-three years ago. We are aware a quality lawyer can mean the literal difference between life and death.
But we also represent people who are not heroes. We represent people who are not oppressed. We represent people who are not championed by civil rights groups. I am thinking of my friends, Don Samuel and Amanda Clark Palmer, who represented the police officer in Dekalb County who was charged with murdering the naked unarmed African American who was suffering mental illness. Their client was not a hero; he was not a minority who suffered from decades of mistreatment. Yet, their task as criminal defense attorneys was to fight for their client, regardless of the civil rights protestors who were on the courthouse steps every day, crying for vengeance, demanding the “justice” that the protestors believed was warranted in that case.
When we hear of a case such as Ahmaud’s, it roils us emotionally and we get angered by the outward appearance of an unseemly prosecutor covering for a former police officer and we are angered because our clients end up arrested for much less. It is all of these factors, all of these emotions that make some of our colleagues cheer for an arrest and prosecution because we have the front row seats to watch the worst of the abuses in our justice system.
Understanding these powerful emotions is important and recognizing them allows us to reconcile both viewpoints while still holding onto our core belief about the presumption of innocence. In all of our trials we beg the jury to remember the presumption of innocence from the moment they are empaneled until the moment that foreperson stands up - for what seems like an eternity - to read the verdict form. Two men have been arrested and for our system to stay secure and keep working, these men deserve that presumption of innocence or we really do not believe what we sell. And the presumption of innocence and the necessitating of not making snap judgments, even after seeing a video or reading a newspaper article, applies regardless of whether the defendant is black or white, young or old, Muslim or Jewish or Catholic; and regardless of the ethnicity of the victim.
We have a duty to educate the public when we can and not allow the media machine to cloud the public’s view of the trial process - with their instinct to condemn, convict and move on to another story. By failing to give these men accused of heinous crimes a fair trial, we will deprive the community of the justice that was already denied Arbery. Despite the clamor of the rightfully outraged public for a rush to judgment it is our job to uphold the Constitution. And it may take time.