It has been a frenzied few months since my last contribution to this lonely forum. The many intervening events include the passing of Justice Ruth Bader Ginsburg. So many have already penned moving and insightful tributes to her. I, who had no direct encounters with this diminutive yet transformative figure, am ill-equipped to add anything particularly edifying. Yet I feel the need to reflect and offer something beyond the memory of giving my 12-year-old daughter The Notorious RBG as a birthday gift and leaving her mystified. And then there was the time, a few years later, when I dragged this same daughter to the documentary based on the same book. But it was a Friday night, after my daughter had been through a tough week of high school topped off by an intensive two-hour rowing practice. That outing, intended to be a second shot at introducing my loved one to a revered person, left me watching in amused dismay as my daughter started snoring daintily beside me soon after the opening credits rolled. Now, just as my daughter is finally old enough to understand the basic parameters of RBG’s brand of heroism, the woman is gone. After fighting with such grit and grace to beat back the body’s revolt, she finally relinquished the hero’s mantle and let herself slip away.
Yet the thing about heroes is this: they generally leave a great deal behind for we mere mortals to reflect upon. Today I find myself reflecting on a component of RBG’s legacy that might strike some as “less significant.” Instead of her decades-long, multi-faceted fight for the cause of equal protection under the law, I want to pay a brief, inadequate tribute to her masterful writing style. No matter the subject matter, her writing was never flamboyant or provocative, as was the style of her friend, the late Justice Antonin Scalia. One will find few eye-catching rhetorical flourishes. However, every sentence reflects the precision of a 19th-century clockmaker and a musician’s ear. Each paragraph serves to build an argument toward a conclusion that then seems inevitable. There are no gaps, no breaches of logic, no surplusage. Indeed, her writing style reflects her character: elegant but never ostentatious, fiercely intelligent without arrogance, forceful yet without malice. A subtle example of her finely wrought prose can be found in her opinion for the majority in a 2017 death penalty case: Bobby James Moore v. Texas. She takes care of business in an opening section, consisting of three tight paragraphs: first, she provides the key facts underlying the case; second, she explains the legal context of the appeal; third, she conveys why the state court below, Texas’s Court of Criminal Appeals (CCA), was being summarily reversed: We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.”... That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed[.]” Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled. (internal citations omitted) Considering she was announcing what can only be described as a major smackdown, the prose strikes a remarkable balance. It is utterly clear, unwaveringly confident, yet never strident. Years ago, I enjoyed reading a collection of interviews that legal writing guru Bryan Garner had conducted with the Supreme Court justices of the day—probing them for insights as to their writing pet peeves and preferences and how they approached their own craft. Justice Ginsburg disclosed that she had learned to be passionate about her writing as an undergraduate. Her mentor was the novelist Vladimir Nabokov, then a professor at Cornell. In the interview with Garner, Justice Ginsburg also admitted that there was some agony involved in slogging through mountains of less-than-inspired legal briefs and memos when she would have preferred getting lost in a great work of literature. Reading about this admission on her part served as a reminder: great writers are generally avid readers of great writers. Moreover, great writers never forget how it feels to be a reader. Great writers yearn to transcend the task of simply conveying information. (Although, admittedly, a lot of lawyers could improve their writing immensely simply by being clearer.) But for writing to be great, the writer must be in love with language; and this passion must drive her to produce words that give the recipient—known or unknown—a meaningful and even pleasurable experience through the exchange. Justice Ginsburg was fueled by many passions. But the unique discipline required to channel her passion for justice into compelling prose, perfectly calibrated to her chosen medium, proves she had an artist’s spirit.
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I have been so preoccupied addressing some recent bad news that I have been unable to reflect on many developments of interest. But I cannot let another day go by without commenting on some profoundly good news from earlier this week. On Monday, the Supreme Court of the United States granted relief to my client, Terence Tremaine Andrus:
https://www.supremecourt.gov/opinions/19pdf/18-9674_2dp3.pdf The good news was eclipsed a bit by the release of an opinion the same morning announcing a significant victory for LGBT rights in the employment context, see Bostock v. Clayton County, Georgia. “An employer who fires an individual merely for being gay or transgender defies the law,” the 6-3 majority opinion declares in plain English. However, for appellate nerds, the opinion in Andrus v. Texas is of interest because of its unusual posture. See, e.g., https://www.scotusblog.com/2020/06/court-sends-case-of-texas-death-row-inmate-back-for-new-look/. The petition for writ of certiorari had been pending for a year--getting relisted over twenty times before the decision finally dropped. Also, the decision--a win without oral argument--is unusual. The win is also incomplete. The next step will be a remand for further analysis by the Texas Court of Criminal Appeals (CCA). The Supreme Court has ruled that half of the two-prong ineffective-assistance-of-counsel test at issue in Terence's case has been satisfied; but the high court left it to the CCA to decide the "prejudice" element. Because the majority per curiam and a terse dissent by Justice Alito disagree about a number of facts relevant to an accurate prejudice analysis, it will be up to the CCA to dig into that record and resolve these factual disputes in undertaking that analysis. For death-penalty-defense practitioners, the opinion is significant for at least two reasons. First, the carefully crafted, detailed opinion emphasizes the importance of a robust investigation into a client's life history in cases where the State is seeking to end that life. Second, the SCOTUS opinion identifies several examples of inaction or misfeasance that amount to categorical examples of "deficient performance" by trial counsel in a death-penalty case. The care taken on this front should be significant in future litigation. Every Wednesday morning, I wake up with a pronounced knot in my gut. I then frantically engage in a series of mindless tasks meant to distract myself until around 9:00 AM. That is when the bad news may drop. I strongly suspect that anyone doing Texas death-penalty post-conviction defense work feels the same way about Wednesday mornings. This is because Wednesday mornings are when the Texas Court of Criminal Appeals (CCA) releases its “hand-down list” of orders and opinions. Two Wednesdays ago, I received exceptionally bad news regarding the fate of one of my clients, after having waited anxiously for over a year and a half to see how the court would resolve a righteous claim. But last Wednesday, I, like anyone else trying to obtain information from any entity within the Texas appellate court system, could not gain access. If the CCA had delivered bad news to anyone, it could not be ascertained because, on Thursday night, May 7th, someone had launched a successful ransomware attack on the entire system. Because state officials have decided not to pay the ransom, to date, the courts’ servers remain crippled, and the public cannot access any orders or opinions—old or new—emanating from the CCA, the Texas Supreme Court, or any of Texas’s 14 intermediate appellate courts. Because of this technological barrier, it is presently unclear whether the upcoming Wednesday will bring any news from the CCA that can be retrieved. But out of habit, I will brace for bad news anyway. Yet, like the aggressively optimistic protagonist of a Dr. Seuss book I loved as a little kid, I will also cling to some shard of hope that someone might receive good news instead. When good news does come to anyone—a reversal on appeal, a remand for further fact-finding, a miraculous grant of habeas relief, a stay of execution for any reason whatsoever—it is always a cause for rejoicing among everyone who does this kind of work.
Because of long-standing trends, those anxious on behalf of death-sentenced individuals must, as a poem by Alice Walker teaches, “live frugally on surprise.” We must train ourselves to “tame wild disappointment/With caress unmoved and cold” so that it might be “a parka” for our trembling souls. We must do this if we are to persist at fishing in dark, chilly waters for signs of life despite all of the bad news. This Supreme Court term, shaping up to be its least prodigious since the Civil War, includes a decision in the death-penalty case Kahler v. Kansas. The case arises from James Kahler’s conviction for killing his estranged wife, her mother, and his two teenage daughters in 2009 when Kahler was reportedly in the throes of severe depression and other mental disorders. At trial, Kahler challenged the fact that Kansas, years before, had abolished the insanity affirmative defense. The abolition of that defense meant that the only way Kahler’s mental health issues were relevant at trial was as a potential mitigating factor to be considered in assessing his punishment. The legal issue that was decided in this particular case was a constitutional one: whether Kansas’s decision to eliminate the affirmative defense, which has been a part of our common-law tradition since before the Constitution itself came into existence, violated the U.S. Constitution’s Eighth and Fourteenth Amendments. A majority of the justices decided that the defense is not mandated by the federal Constitution; thus, abolishing it did not rob Kahler of due process. The rationale supporting this decision was based, in part, on evidence that the standard for assessing an insanity defense is not, and never has been, uniform in this Republic and, besides, Kahler still had the means to present evidence of his mental illness during the punishment phase of trial.
The 6-3 decision surprised many people—and for many different reasons. Some were surprised that the decision for the majority was written by Justice Elena Kagan, joined by the entire conservative wing of the Court: C.J. Roberts and Associate Justices Thomas, Alito, Gorsuch, and Kavanaugh. Some were likely surprised that states’ approaches to the question of “insanity” have been, and remain, all over the mapped. I was surprised that the majority decision does not acknowledge, let alone discuss, the fundamental difference between (1) an “affirmative defense” to a crime and (2) a mitigating factor that comes into play only after a conviction has been obtained and only when the jury is asked to assess punishment—something with particular significance in a death-penalty case like Kahler’s. An affirmative defense is a claim raised by the defendant that is relevant during the guilt-phase. Because it is the defendant’s burden to prove this defense, by raising it, the defendant has the right to present evidence relevant to that claim during the first phase of trial when jurors form their opinions about the circumstances of the crime. By contrast, when evidence is only relevant to the question of punishment, the defendant will have no right to put that evidence before the jurors until after those same jurors have been focusing exclusively on the grisly details of a capital-qualifying murder. But what should really surprise people (who are not lawyers) is the way that the law in most U.S. jurisdictions defines “insanity.” “Legal insanity” is not at all synonymous with “mental illness.” Indeed, the very word “insanity” reflects its roots in the 18th century when “insane,” “idiot,” “imbecile,” “madman” and the like were terms used to characterize, in broad strokes, a person who acted in a way that defied conventional understanding of how sane humans were supposed to behave. When the insanity defense came into being, nothing was known about the hard science of brain functioning, neurotransmitters, the adverse developmental effects of exposure to childhood trauma, distinct diagnoses such as schizophrenia, bipolar disorder, clinical depression, autism spectrum disorder, intellectual disability, etc. But there was at least a deeply held belief that, in some extreme instances, it was morally wrong to hold someone legally liable for a crime perpetrated while under the spell of some debilitating mental disease or defect—even if the origin of the condition was seen as utterly mystifying or, perhaps, a sign of demonic possession. Psychology, psychiatry, and neuroscience have come a long way in the last 150 years; yet, when it comes to accounting for the role mental illness may have played in a crime, the law is still quite retrograde. Learning about the huge gulf between contemporary scientific understanding of mental illness and the role of mental illness in assessing criminal punishment was the thing that most horrified me during my first semester of law school (over 20 years ago now). I found this phenomenon even more shocking than the way my law school (at that time) marked the beginning and ending of classes with bells, required us to sit in assigned seats, and forced professors to grade students on a “curve” that meant some percentage of each roomful of manic overachievers was going to end up with Cs and Ds. Law school generally taught me that “insanity” did not mean what I thought it did. More specifically, one semester of Criminal Law taught me that prevailing on an “insanity” defense essentially required proving that the defendant, at the time of the offense, could not tell the difference between a person and a grapefruit. This lesson was one reason I felt certain that, once I got my law degree, I would never, ever consider a career in criminal law. Okay, so some things do change—and sometimes even for the better! My stubborn belief in the prospect of progress is why I was delighted to read a NYT review of a new book called Nobody’s Child: A Tragedy, a Trial and a History of the Insanity Defense by Susan Nordin Vinocour: https://www.nytimes.com/2020/03/24/books/review/nobodys-child-susan-nordin-vinocour.html?referringSource=articleShare Vinocour’s book seems like it should speak to those confused by the Kahler decision and, more importantly, could be a vehicle for exposing the vast gulf that exists between contemporary science and the law when it comes to mental illness. I will read it with interest. Today is May Day. The holiday harkens back to Renaissance celebrations of spring that involved dancing around “May poles” with garlands of flowers in one’s hair. But in the States, the sense that this date has any historic significance gets little attention probably because it falls between Easter/Passover and Cinco de Mayo, which seem to suck most of the celebratory oxygen out of the season these days. Maybe May Day gets short shrift because of cognitive interference with the phrase “May Day,” a distress signal utilized by the military since the 1920s. But today I received a very endearing gift from one of my client’s devoted supporters, Anne-Sophie, who lives in a land where they still know how to celebrate May 1st: As Anne-Sophie explains, this image represents the bouquets of lilies that are exchanged on “Labour Day”—a day free of labor and dedicated instead to honoring workers and wishing friends “good luck and happiness.”
I am sure that Anne-Sophie wishes she could send such a bouquet to her friend on Texas’s death row, a gesture that, regrettably, TDCJ’s rules do not permit. Certainly, she deserves kudos for all she and other like-minded souls do to bring bursts of light into a gray world where spring flowers are only glimpsed by standing on one’s bunk, peering out a slit in the exterior concrete wall, and looking way off into the distance. Earlier this week, I did something oh-so coronavirus: joined a “Netflix Party.” For me, this party was definitely a busman’s holiday—but a tremendously satisfying one. The cyber-party involved watching a stand-alone episode in a new documentary series called The Innocence Files. The series examines the stories behind eight cases of wrongful conviction that organizations within the Innocence Network have championed over the years. This chance to watch Episodes 8 (“The Prosecution: Hidden Alibi”) was orchestrated by Kristin Houlé Cuellar, the remarkably committed, kind, and resourceful executive director of the Texas Coalition to Abolish the Death Penalty. Check out her work here: https://tcadp.org/ Episode 8 involves a deep dive into a Texas death-penalty case—exploring how an intellectually disabled, young, black country boy from Louisiana, who just happened to have been hanging with the wrong crowd in a housing project in Houston the night before a horrible crime was committed, came to be charged, convicted, and sent to death row. The episode also depicts some of the heroic feats it took to get Alfred “Dwayne” Brown off of the row and ultimately declared “Actually Innocent.” The facts presented would have to be called astonishing—if it weren’t that the facts reflect far too common patterns evident in many “modern” Texas death-penalty cases. Since I was already familiar with the facts, what really surprised me about the documentary was the breathtaking cinematography and editing. The production quality is not just good, it is artful: weaving bleakly ugly historical footage, tasteful reenactments, and contemporary interviews together to craft an aesthetically arresting experience. Despite knowing all of the “plot points” in advance, I was mesmerized. Among the attendees at the Netflix Party were a current Texas legislator, Joe Moody, and a former justice on the Texas Court of Criminal Appeals, the Honorable Elsa Alcala. The guest of honor was one of Dwayne’s lawyers who is featured in the documentary, Brian Stolarz. Brian wrote a book about his experience fighting to establish Dwayne’s innocence: Grace and Justice on Death Row: The Race Against Time and Texas to Free an Innocent Man, likely a helpful source to the documentary filmmakers. Now, the reason why I knew the plot of Episode 8 so well in advance is because I read Brian’s book several years ago. I got a copy when it first came out, when he and I were on a board together. I was so impressed that he had been able to pull his and Dwayne’s story together so quickly and effectively—when the fight was still raging to make Dwayne’s innocence “official.” Getting to that point took another three years. See, e.g., this reporting related to that 2019 development: https://www.chron.com/news/houston-texas/houston/article/Worst-decision-I-ve-ever-made-Juror-from-13674892.php I had received my copy of Brian’s book in the fall of 2016 at a fundraiser for the organization on whose board we were both then sitting. I recall the night very vividly because I traveled to the event in Houston from a neighboring county jail where I had been meeting with one of my own death-row clients. He was in that county jail because we were then in the middle of an extended post-conviction proceeding, preparing to present the evidence that we hoped would enable him to get a new trial one day. I drove directly from the jail in that neighboring county to a posh, newly renovated warehouse on the edge of downtown Houston. Coincidentally, this posh facility was located in the shadow of Third Ward, the historic African-American neighborhood where the client I had just been visiting was born in the “Jefferson Davis Hospital” and where he grew up during the height of the crack epidemic. Photo by Paul Swen At that party back in 2016, I was thrilled to be able to shake hands with Brian and to get a chance to hang out with a man I knew, through my clients, as “Doby” (aka Alfred Dwayne Brown). Doby looked dapper in a new red polo and pressed jeans, but he likely felt even more out of place than I did. I felt out of place because I was having a hard time leaving the jail experience behind so as to enjoy sipping wine and exchanging pleasantries with, for instance, the woman who was running to be the next District Attorney in Harris County. I felt more comfortable chatting with Doby about some of the friends he had left behind on the row and hearing about his new life raising horses back in his home turf in Louisiana. What a joy it is to see that his story (and Brian’s) have now become the subject of an inspired bit of film-making that will likely challenge any and all viewers to reexamine presuppositions about fairness in the criminal justice system. But, as Episode 8 makes clear, Doby’s story, including his quest for true justice, is hardly over. Watch it and weep.
April 23rd is the date designated to commemorate Shakespeare’s birth. (Since birth records could be a little sketchy in rural Elizabethan England, April 23rd is merely scholars best guess based on the record made of his christening.) More controversial than the precise date of his birth is whether the individual known as “William Shakespeare” is in fact the same person who created the unparalleled oeuvre that includes a whole bunch of elegant love sonnets, comedies like A Midsummer Night’s Dream, culture-defining tragedies like Hamlet, Macbeth, and King Lear, and genre-bending pieces like The Tempest. Whatever way you come down in the identity debate, I hope you will join me in a moment of gratitude that, whoever that guy (or guys) was/were, at least quill was put to parchment to get the job done.
I also want to take the occasion of Shakespeare’s (probable) birthday to admit that this is not my first rodeo in the blog department. The two or three people who may be following this current blog may already know that I tried this exercise a few years ago—launched on the eve of WS’s birthday in 2012: http://truecomplaintshakespearelaw.blogspot.com/2012/04/happy-bday-ws.html I kept up the exercise of blogging about Shakespeare and the law for a few years until the press of other work made the project seem inconsequential and thus not particularly satisfying. But in musing about what Nietzsche described as “the eternal return of the same,” I thought it was interesting that my first blog post eight years ago was about unjust punishment. More specifically, my focus back then was on a theme in Shakespeare’s Measure for Measure, which involves the imposition of unjust death sentences. The attempt to follow through on such reputedly legal sentences creates upheaval in a community by exposing hypocrisy at the top and serious tension between the very concepts of Law and Justice. Through the years, while wearing all sorts of professional hats, a preoccupation with that particular tension has consistently fueled me. But my preoccupation with that tension has finally found a particularly worthy outlet in my current professional work. Being able to align a driving passion with what one does for a living is, perhaps, the very definition of satisfaction. In my book, satisfaction is not synonymous with simply “being content.” As with most lawyers, a certain measure of striving is always going to be part of the equation. But as one fortunate enough to find immense satisfaction in my work, I, like the female protagonist in Measure for Measure, have an obligation: “Most strange, but yet most truly, will I speak.” This weekend I received a photograph of a lovely olive tree from a Frenchman whom I have gotten to know because he has, for many years, supported one of my clients. That support has manifested itself, for instance, in trips across the globe each year to visit Texas’s death row. The image of this silvery-grey beauty brought to mind two phenomena.
First, I thought about the olive tree itself: a symbol of peace and resilience as old as Western Civilization itself. There is an ancient olive tree flourishing today on the Acropolis that supposedly traces its roots, rather literally, back to the founding of Athens. Legend has it that Athena, goddess of wisdom, won the contest to be able to lay claim to the Greek city-state by offering a gift that was both aesthetically pleasing and practical: the olive tree itself. Ever since, these shimmering, gnarled beauties have defined Greece and the gifts of democracy, theater, and philosophy, to name a few, that the ancient Greeks bequeathed to the rest of us. Second, the gift of this photo reminded me of the little-known circumstance whereby the spirits of many on death row are kept aloft by the friendships they develop, through old-fashioned epistolary exchanges, with people from all around the globe. One could argue that the ability to develop relationships with pen pals is essential to surviving the death-row experience, which in Texas involves years or even decades in solitary confinement. For inmates whose family members, if they remain in the picture at all, are generally struggling to keep themselves afloat, pen pals often become a primary means of both emotional and financial support. Of course, plenty of people initiate contact with folks on the row for less-than-benign reasons. The guys get hounded by thrill-seekers and fraudsters, people looking to make a buck by exploiting others’ obsessions with “true crime.” Unscrupulous media companies will send mailers to everyone on the row, asking for “submissions” for a book project or art show that is being put together that, if it ever materializes, does not generally benefit the contributors in any way. But without the ability to build a bridge, through correspondence, to well-intentioned people on the outside who are motivated by what they see as a barbarous system, a DR inmate can quickly become a ravished, stinky, lonely, hopeless mess. So, in a very real way, pen pals from overseas (or even from right here in the U.S.) are the olive trees. They offer hope, peace, and strength in a context that is brutally unforgiving. In doing so, they reflect the best of what it means to be human. Many do not realize that in this Internet age (and I include the time before COVID-19 unsettled us all), the world of letters is largely kept aloft by folks in prison. At least I can speak with firsthand knowledge about how people incarcerated on death row, if their cognitive abilities and mental health allow, are prolific readers. Some of my clients have especially discerning taste and thus I have turned to them for book recommendations because they do a better job of keeping up than I do. One of my very well-read clients is Charles Flores, who recently introduced me to Luis Alberto Urrea: http://luisurrea.com/ I just finished Urrea’s The House of Broken Angels (2018), a masterful bit of storytelling fueled by a dynamic, distinctive voice that manages to make you laugh, cry, and blush in rapid succession as the narrator moves seamlessly among different points of view within one extended, border-, culture-, and generation-straddling family. I highly recommend it. 😊 As I was reading Broken Angels, I paused at one point to jot down this lovely sentiment: “There is a minute in the day, a minute for everyone, though most everyone is too distracted to notice its arrival. A minute of gifts coming from the world like birthday presents. A minute given to every day that seems to create a golden bubble available to everyone.” Yesterday, I was able to capture such a moment simply by walking outside and turning around to look back at the roses blooming in our yard that cannot be easily seen from inside the house: Glimpses of natural beauty can certainly be described as “gifts coming from the world” in this time of sheltering-in-place. We need to seize these gifts whenever we can and revel in them.
Another such gift recently came to me in the form of some rigorous journalism that happens, quite coincidentally, to bear on the case of the same client who led me to Urrea. Last week, the Dallas Morning News published a deep-dive into Texas’s use of “forensic hypnosis” in criminal investigations. The two-part series, by investigative reporters Lauren McGaughy and Dave Boucher, is well worth reading: Through specific case studies, the article describes the way law enforcement officers have, for decades, used training to try to elicit “memories” from witnesses through suggestive techniques and built on the erroneous premise that muddled memories can somehow be safely retrieved, like videotapes or files, stored deep in the brain. Contemporary scientific understanding of memory, backed up by actual scientific studies, teaches that one of the reasons eyewitness testimony is so unreliable is because experiences that were never encoded in memory in the first place or were encoded in a fragmentary fashion will never improve, but only decay over time. Moreover, fragmentary memories can easily be transformed through the unconscious process of “confabulation” whereby the brain “fills in the gaps” of the fragment that was encoded when an event was experienced. All that “forensic hypnosis” does is encourage the process of confabulation and then engender a false sense of confidence in the hypnotized subject by suggesting that the person can “remember” something more fully later on. In reality, the “memory” that was not solid to begin with is utterly vulnerable to manipulation by subsequent events—such as exposure to new information served up by law enforcement. For decades after science has exposed the fallacy that hypnosis can be used to recover stored memories, Texas has continued to convict people in criminal cases using testimony from witnesses who had nothing useful to offer until after the police had hypnotized them. That this disturbing phenomenon has garnered some media attention lately is a “golden bubble available to everyone”—a bit of light illuminating an ignorant practice, perhaps spawned by the best of intentions but that has propagated great harm. In these COVID-19 times, creative efforts to highlight countervailing good news and amplify it are much appreciated. Here is a link to a video of a very charming partnership of famous thespians casting some light into the darkness:
https://www.youtube.com/watch?time_continue=3&v=oilZ1hNZPRM&feature=emb_title: Broadcast of a Zoom-enabled edition of “Some Good News” by host John Krasinski (The Office, Jack Ryan) with cameo by his wife Emily Blunt (Devil Wears Prada, Into the Woods, Mary Poppins Returns) and an uplifting remote performance by the original cast of Lin-Manuel Miranda’s Hamilton After all, human beings do not do well with unmitigated gloom. Americans in particular have a hard time not seeking out happy endings, positive spins, and “all is for the best” scenarios—even when the quest to do so is patently delusional. But the impulse to look for uplift during oppressive times is not about being an ostrich; it is essential to survival. If one’s legal work is focused on providing post-conviction representation in death-penalty cases, seeking out the silver lining is a challenging, but essential preoccupation. A person has to continuously look for small milestones or achievements to celebrate: Woohoo, a status conference just got pushed! Or Hip-hip hooray, the court just granted an agreed motion for a third party to produce discovery! It is especially important to look for ways to keep clients’ spirits up by celebrating positive baby steps in their cases, sharing new prospects for fruitful investigation, or recognizing some accomplishment in their families or in their own efforts at self-improvement under exceedingly repressive circumstances. Because we humans do not function well when fixated on tragedy, loss, and seemingly hopeless odds, COVID-19 will continue to breed opportunities for “looking on the bright side.” Perhaps the greater challenge, which arises in any legal representation, is not to allow the desire to look on “the bright side” to take over. One can’t lose sight of the “bad facts” and other obstacles that make it hard to induce empathy for your client’s cause or you will not be an effective advocate. Advocacy is not about trumpeting only the side of a story that casts your client in a positive light; it is about learning to tell a more nuanced story that accounts for a truth that is more than black and white. |