Over the past two weeks, I have made the case [here] and [here] that our nation's courts are broken beyond comprehension. But to be perfectly honest, it is probably not something barristers out there don't already know. Certainly, it is not news to Alan Dershowitz:
It is widely known that many state court judges and some lower court judges play favorites among litigants and lawyers. Roy Cohn once famously quipped, "I don’t care if my opponent knows the law, as long as I know the judge." In the old days, it was financial corruption -- cash changed hands. Then it became the "favor bank," in which personal favors are quietly stored and exchanged. I have seen it with my own eyes in the courts of Boston, New York, and elsewhere.
Alan M. Dershowitz, Supreme Injustice: How the High Court Hijacked Election 2000 (New York: Oxford U. Press, 2001), p. 116 (emphasis added).
There can be no right more important than the right to have your legitimate grievances heard by a fair, independent, and unbiased tribunal, and it is the lawyer's duty to preserve it. As such, if Dershowitz had ‘seen [the corruption he alleges] with his own eyes’, he had an affirmative obligation to report it: A lawyer "having knowledge that a judge has committed a violation of applicable rules of judicial conduct that raises a substantial question as to the judge’s fitness for office SHALL inform the Commission on Judicial Conduct." Mass. RPC 8.3(b) (emphasis added). But he didn’t, and didn’t even have the courage to name names.
Don't be a Dershowitz. I implore you, ladies and gentlemen of the bar -- for our nation's sake -- to elevate your game.
I am not so naïve as to think that your collective reluctance to speak is grounded in anything but the fear of retaliation by the judges’ cabal. But like that noble barrister John Cooke, called upon by fate and duty to prosecute no less a man than Charles Stuart, King of England, the bell tolls for you. Cooke was called to prosecute an absolute monarch who presided over star chambers -- at enormous risk to himself. Like you, his first instinct was to run for cover. But he was also a man of sterling character, who understood and internalized the lawyer’s higher calling:
He who knows anything about politics may easily foresee there is a great storm gathering in the kingdom against us lawyers. The only way to prevent it is to keep hold of the principles of right reason and dispatch poor men’s causes free of charge this hard year. ... Let us contend earnestly for the truth rather than victory. As soon as we discover the cause is unjust let us drop it and advise our clients to make their peace. Let us never utter in court a word we believe untrue. If clients tell us they have no money, let us act for them for their thanks. Then, I warrant you, we shall be Parliament-proof and Kingdom-proof; the people will quickly recognize our usefulness, and an honest lawyer will be a necessary member of the Kingdom and the wisdom of the common law will be admired and honoured. But if we make disquiet and trouble for the poor, then believe me the Kingdom will be as weary of us as they ever were of bishops or arbitrary courts.
Geoffrey Robertson, The Tyrannicide Brief: The Story of the Man Who Sent Charles I to the Scaffold (New York: Random House, 2005), at 107-08 (emphasis added).
While John Cooke was but a commoner, his nobility spans the ages. He was the father of our Fifth Amendment right to freedom from self-incrimination. His Poor Man’s Case was a primogenitor of the modern-day oath of office and the duty of pro bono representation. But his one indefatigable act of courage is the very basis for our modern law: that no man is above the law, and none are beyond its protection. Cooke argued Rex v. Rex when Rex was lex; without that innovation, tyrants like Hermann Goering, Augustus Pinochet, Slobodan Milosevic, and Saddam Hussein would have been beyond the reach of law, for "the King can do no wrong."
Many men are too small to muster that level of character within themselves, and many more never have the occasion to search for it. Few would lift a finger for what we swear in the abstract we would die many times over: the blessings of liberty. But the price of liberty is eternal vigilance, and "the tree of liberty must be watered from time to time with the blood of patriots and tyrants." Thomas Jefferson, Letter (to William Smith), 1787.
John Cooke died the noblest death possible, defending incorrigible principles that defined his life and livelihood. As he wrote from prison while awaiting execution, "We fought for the public good and would have enfranchised the people and secured the welfare of the whole groaning creation, if the nation had not more delighted in servitude than in freedom." Robertson, id. at dedication page.
In a land where barristers openly advocate torture and swear oaths to monarchs superseding their fealty to the rule of law, perjury (Scooter Libby, Bill Clinton) and/or feigned forgetfulness (Gonzalez) has become the lawyer's universal expedient, and both the U.S. Attorney's office and state district attorneys' offices have morphed into political hit squads, there can be no substitute for the voiced outrage of the organized Bar.
To make the case that our country is in a time of desperate crisis to this audience would be cumulative. And as such, it is incumbent upon us all to fight for the public good, heedless of the cost to ourselves -- leading the way for the Reids, Pelosis, and ACLUs, when they cannot find it themselves.
End of sermon.
For more information on the decrepit state of our courts, visit knowyourcourts.com.