LAW DAY REMARKS

Given by Hon. Albert Diaz, May 5, 2011

 

 

            Thank you Judge Keesler for that kind introduction.  And many thanks to all of you for being here and for that warm greeting.  Let me start by thanking Judge Keesler, Valecia McDowell and the other members of the Law Day Committee for putting this event together.  I hope my remarks live up to their outstanding efforts.

            I also want to extend my personal congratulations to our Liberty Bell Award winner Dr. Tom Hanchett, who certainly is very deserving of recognition for his outstanding work on the Courage exhibit that continues to grace the Levine Museum of the New South.  I also want to congratulate our student essay contest winner for her outstanding Law Day submission.

            Let me also recognize and give special thanks to Diana Sen, who currently serves as the President of the Hispanic National Bar Association, for taking time from her very busy schedule to join us.  The HNBA (along with a great many other bar groups) worked hard to ensure that I received an up or down vote on my confirmation and I am very grateful to Diana and the HNBA leadership for their support.  And finally, I want to thank Michael McIntosh, one of my law clerks, for his substantial help in preparing my remarks today.

            When I came on the trial court bench in 2001, I was told that my jokes (no matter how lame) would become a lot funnier, particularly if told before a crowd of lawyers.  That advice turned out to be true, and so I wondered just how much funnier I must be now that I am a United States Circuit Judge.  To be frank, judges don't need to try very hard to be funny--we have so much material to work with from the cases we handle, that's it's almost impossible to fall flat on your face.

            Let me give you a few examples, all of which involve pro se litigants, which I think will be an appropriate segue to "The Legacy of John Adams, from Boston to Guantanamo,"  the topic I've been asked to speak on. 

            The first involved a pro se litigant who was arrested for public drunkenness and disorderly conduct.  Unhappy with the way he was treated, he filed a civil rights complaint against the local police department, claiming in part that the police "wrongfully confiscated a liter of vodka from him."  In response to the charge of public drunkenness and disorderly conduct, he said that when the police took his vodka, he suffered an attack of Post-Traumatic Stress Disorder, causing him to "go in and out of temporary consciousness" and "compelling him into a minor non-violent criminal mode."  I believe this fellow missed his calling as a criminal defense lawyer.  

            The second incident involves what we lawyers term a lapses linguae in a pro se litigant's petition for rehearing en banc following denial of his habeas corpus petition.  The petition begins with the following introduction:  The panel's conclusion is inconsistent with the Supreme Court's juris produce establishing a court's power to hear a case."  I wonder whether the Justices would consider their "juris produce" to have been grown and harvested in interstate commerce?

            Next, a very solicitous fellow who wrote our Clerk of Court as follows:  Enclosed herewith please find a Petition for Rehearing or Rehearing En Banc.  Please present to the appropriate persons for judgment and wish me luck. 

            And finally, a not so solicitous fellow, who upon receiving the panel's decision denying his plea for relief (a panel that I believe I was on) filed a petition for rehearing that, among other things, included these zingers:

            1.         In response to the panel's treatment of his claims, Petitioner had this to say:  If the panel did indeed review the complete record in this case, as well as the petitioner's motions, "it is apparent that the judges have taken the maxim 'Justice is blind" a bit too literally."

            2.         Then suggesting a more sinister motive for the outcome of the case, Petitioner alleged With Courts like these it is no wonder that our so-called system of justice is even more bankrupt than our treasury"; and

            3.         And finally, incredulous that the panel was not convinced by a specific line of reasoning, petitioner opined, "This is an argument that only the willfully deaf, dumb and blind could ignore."

            What does all this have to do with John Adams?  Well, all of these parties were appearing pro se before the bar of our Court.  And of course, our Constitution guarantees that right to every individual, with some limited exceptions.  But as I think the excerpts show, that an individual may represent himself (and indeed in some instances has little choice in the matter) does not mean that he should.  There is much to be said for the old adage that he who represents himself has a fool for a client. 

            Which brings me to John Adams the lawyer.  In the standard historical narrative, Adams is remembered primarily for his political career--as the driving force behind the Declaration of Independence, for his service as wartime minister to France, as first American ambassador to Great Britain, as our country's first vice president, an office by the way that he detested and of which he said, "My country has contrived for me the most insignificant office that ever the invention of man contrived or his imagination conceived" and of course, as our nation's second president.  Yet this account overlooks Adams's early career as a practicing lawyer in Boston, where he rose to prominence as an exceptional courtroom advocate.

             Displaying his trademark integrity and independent judgment, Adams took on all kinds of cases, guided by his fervent belief that all people--regardless of reputation or alleged indiscretion--were entitled to vigorous representation.  His dedication to public service and adherence to ethical principles serve as a worthy example for all of us as we navigate our legal careers. And if he were alive today, I'm sure John Adams would agree that, from redcoats accused of murdering Bostonians to Guantanamo Bay detainees alleged to have attacked Americans, and yes, to an individual upset over losing his bottle of vodka, all people deserve a zealous advocate, if for no other reason than to dissuade them from needless litigation when that course is appropriate.   

            President Adams was an eccentric fellow.  Food and exercise were hallmarks of his daily routine.  He'd start every day with a combination of a nice drink of hard cider and a five- or ten-mile walk.  But all of the walking didn't make up for his prodigious eating. He enjoyed taking meals up into his old age, where a dinner guest remarked that the then 89-year-old Adams still ate more than anyone at the table.  Adams's love of cuisine served as fodder for his critics.  While presiding over the Senate debate of what title to bestow on George Washington, one senator asked Adams if he, too, would like a title.  His suggestion--"His Rotundity".  Adams endured that the nickname for the rest of his public career.

            Adams didn't mince words.  He didn't care much for superficial niceties, and he developed a reputation as a surly combatant. He often said what he felt, as he did in remarking during his term as Vice-President that, "I have come to the conclusion that one useless man is a disgrace, that two become a law firm, and that three or more become a congress."

            Although they become close friends later in life, and died within hours of each other on July 4, 1826, Thomas Jefferson thought that Adam's qualities might yield success for Adams on the diplomatic stage.  Adams's uniform dislike of everyone, Jefferson explained, would enable him to be impartial and measured when negotiating.  And Ben Franklin once remarked of Adams, "He means well for his country, is always an honest man, often a wise one, but sometimes, in some things, absolutely out of his senses. 

            Whatever his imperfections, however, Adams revered the law as a great equalizer and guardian of republican virtue.  He often underscored the importance of a sound legal system to the vitality of republican self-government, remarking for instance that "no civilized society can do without lawyers."  And he praised the laws capacity to blindly rule on the claims of the rich and the poor, contending that a legal practice gave one the power to "assist the feeble and friendless" to a greater degree than any other profession.

            Far from empty rhetoric, these principles guided Adams in his law practice.  He took on all types of cases, priding himself on his ability to see cases from every perspective, never prejudging the worth of a litigant.         

            Perhaps more than any other moment in his life, Adamss representation of British soldiers after the Boston Massacre commands our respect and offers us guidance into how best to fulfill our station as lawyers.

            On March 5, 1770, as tensions between British officials and New England colonists approached their zenith, an unruly crowd of several hundred gathered around a contingent of nine redcoats.  Members of the crowd began throwing sticks, rocks, and snowballs at the soldiers.  The redcoats responded by suddenly opening fire on the crowd, killing five.  Colonist outrage was swift.  Inflammatory rhetoric spread throughout the colonies, indicting the British as savage oppressors.  Just a day after the shooting, with indignation boiling over on the streets of Boston, Adams was asked to defend the soldiers at trial.  He accepted at once. 

But how could John Adams, in whom "patriotism burned . . . like a blue flame," take on this representation?  For Adams, the answer was simple.  Representing the soldiers was consistent with his deep-seated belief that "no man in a free country should be denied the right to counsel and a fair trial."  And this ethical imperative, in turn, was entirely consistent with his status as a patriot.  Yet the risks were plentiful, as Adams well knew.  He placed his reputation on the line, knowing that the overwhelming majority of the public wished to see the redcoats hang.  There were also real concerns to physical safety--both as to Adams himself and his then pregnant wife Abigail.  And, the prospect of a tangible reward was slight, as he had accepted a very  modest retainer.  To Adams, however, living by his conviction that all people, regardless of situation, deserve legal representation was of paramount importance. 

Giving what at least one onlooker described as a "virtuoso performance," Adams secured the acquittal of seven of the nine redcoats.  The remaining two were convicted of the lesser charge of manslaughter.  Unsurprisingly, public outcry greeted the decisions and Adamss role in them.  He ultimately lost half of his legal practice.  But he had stood firm in his convictions and never would regret rising to the occasion and defending the soldiers in court.  Looking back years later at a long and distinguished career--Adams professed that his representation of the soldiers was "one of the most gallant, generous, manly, and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country."

Not only is Adams's involvement with the Boston Massacre commendable and inspirational, but I submit its lessons are no less important today than they were in pre-Revolution America.

Earlier this week, this nation received the welcome news from President Obama that Osama Bin Laden had finally been brought to justice.  And today the President travels to New York for a ceremony remembering those who died on 911.  Yet despite the death of the mastermind of the 911 attacks, no one in our political or military leadership can say with any certainty when against Al-Qaeda will end and our fellow Americans in uniform can come home. 

In the meantime, at Guantanamo Bay sit a number of detainees, waiting to answer the charge that they are members of Al-Qaeda or have otherwise engaged in acts of international terrorism.  To be sure, Americans may differ in their appraisal of the propriety of holding detainees at Guantanamo Bay, conducting military commissions, and authorizing indefinite detention.  But we should not allow these charged political considerations to obscure the law's ethical imperative to provide representation to everyone, including those housed at Guantanamo.  

In a very different context, former solicitor general Paul Clement recently made this very point when he withdrew from the partnership of his law firm after the firm backed out of a representation in another politically charged case.  Said Clement: "Defending unpopular positions is what lawyers do.  The adversary system of justice depends on it, especially in cases where passions run high.  Efforts to delegitimize any representation for one side of a legal controversy are a profound threat to the rule of law."  Paul Clement would have no stronger supporter than John Adams for that view.   

Drawing on the lessons of Adams, many lawyers, including several members of our bar, have stepped up to represent Guantanamo detainees.  They have not retreated in the face of criticism and loss of reputation, determined to do what they think is right.  Not only has this service been in keeping with our best traditions as lawyers, but it has also brought to the fore many weighty questions about the fabric of our constitutional structure.  These lawyers have advanced important arguments in their representation of detainees, which in turn has required our courts to more precisely define the contours of authority in each of the federal government's three branches.  These opportunities to advance legal discourse and update notions of separation of powers would never have come to fruition had not a group of courageous lawyers provided assistance to the detainees at Guantanamo.   

But as in the time of Adams, public censure and disapprobation have sometimes greeted these lawyers' service.  With the sometimes inflammatory rhetoric surrounding the debate over the merits of representing Guantanamo detainees, it might be hard to believe that lawyers will ever win plaudits for serving as counsel in these cases.  Yet it was once, too, thought impossible that John Adams would win honor through his representation of British soldiers after the Boston Massacre.  And of course, today we celebrate that effort as a paragon of public service.  It is my belief that posterity will similarly appreciate the sacrifices of those attorneys who fulfilled honorably their ethical obligations and served as counsel for Guantanamo detainees.      

Fortunately, we don't need to travel far to recognize such heroes, for we have two in our midst.  George Daly is with us here today.  In a piece written for the North Carolina Bar Association as part of its "Lawyer to Lawyer" series, Sydnor Thompson, one of the deans of our bar, described George as "Atticus Finch incarnate in Charlotte."  Over the course of a 30+ year career in the law, George has taken on all manner of unpopular causes and clients, to include Vietnam war protesters, flag burners, hippies charged with violating vagrancy laws, motion picture theater owners charged with showing obscene films, and even the Ku Klux Klan.

And like John Adams, George is nothing if not blunt.  Following my appointment to the federal circuit bench, he invited me to attend a CLE presentation he planned to give at the Charlotte School of Law.  The topic?  How to sue judges!!!  George, I'm looking forward to it.  Jeff Davis, who could not be here today also worked with George in representing Guantanamo detainees.  On the surface, Jeff could not be more different than George.  Jeff served in the Marines during Vietnam, was a trial lawyer for Moore & Van Allen, where as he put it, "he spent his time "representing businesses in dispute" and "never sued a President, or any government agency."    

Yet, in the highest traditions of our second President, George and Jeff teamed up in 2006 to represent two of then more than 450 detainees being held at Guantanamo.  In a piece written for the Charlotte Observer regarding his representation of a detainee, George wrote "Everyone in U.S. custody is entitled to due process. That's a requirement that defines our humanity as a nation. . . It is a fundamental piece of who we are."

George Daly, Jeff Davis, and the countless others who have toiled tirelessly to provide representation to those in need, deserve our recognition, as does John Adams.  John Adams is not here today, but George is and so I'd ask him to stand so that we might thank both he and Jeff Davis publicly. 

But mere commendation is not enough.  We as a bar must strive to follow the example they have set, to seek out those in need and offer our services, to avoid shying away from the hard or unpopular cases, to take our ethical obligations seriously, and to view their work as a clarion call to action. 

In one of John Adams's most lauded recitations, he argued that the "true idea" of a republic is that it is "an empire of laws and not of men."  But for far too many, far too often, this timeless creed rings hollow.  For the worker in Charlotte whose employer refuses to give her overtime pay, and doesn't know where to turn.  For the immigrant in Raleigh who faces removal and an uncertain future, but has no hope of wading through the maze of immigration statutes.  For the unpopular religious minority in Winston-Salem, whose right to worship is being suppressed, and who can find no one to press their cause in court.  And for the criminal defendant in Greensboro who pleads not guilty and seeks to put the government to its burden of proof.  It is our duty, as lawyers, to ensure that people's rights don't suffer just because they are poor, or powerless, or unpopular.  That reason, law, and precedent triumph over might, caprice, and whim.  And that the bedrock of our republic remains "equal justice under law."   

As a nation, we are at our best when we honor our democratic principles during the most trying of circumstances.  And so, by fulfilling our ethical obligation to represent all in need, including Guantanamo detainees, and heeding the example of lawyers like George Daly and Jeff Davis, we pay homage to the legacy of our second President and in turn, to the first principles of our nation.

Thank you again for allowing me to be part of this Law Day celebration.   

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