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Monday, November 10, 2008

Revenge Of The Lawyers

Having been the butt of so many jokes for so many years, we lawyers are about to get our chance for rehabilitation.

One of Barack Obama's finest attributes is his lawyerly approach to issues. When I hear his speeches, or listen to him debate, I can readily discern the legal training in his analysis and articulation of positions. His responses are coherent arguments, not unlike those made by experienced and skilled lawyers to juries. He neither condescends to nor overestimates his audience.

Though his legal education was apparently serious and thorough, his biography doesn't include trial practice. He was involved in civil rights litigation, taught constitutional law, but I've found no references to any trial experience. Too bad, he would have been a dynamite criminal defense attorney.

To my knowledge, there have only been two previous presidents who have defended in criminal trials. One is John Adams, who defended the British soldiers accused in the "Boston Massacre."

The other was Abraham Lincoln, whose career in a few other respects, bears some similarities to Obama's. Both were from Illinois, both fixated on politics at an early age, both from humble origins - self-made men, both served in the Illinois legislature, both spoke out against a war (Lincoln vocally opposed the Mexican War), neither had administrative experience when elected president, and neither won electoral votes in Texas, Alabama, South Carolina, or Mississippi.

Lincoln, however, had defended in criminal cases. One became famous in his time and contributed to his legend. In May, 1858, he represented William Duff Armstrong, accused of murder during a drunken brawl. An eye witness claimed to identify Armstrong as the killer, having seen him by the light of a full moon at 11 pm.

Accounts of the trial reported in the press and later memoirs and repeated in many Lincoln biographies relate that Lincoln carefully cross-examined the witness, pinning down the details of his testimony. He then persuaded the judge to take judicial notice of the Farmer's Almanac, convincing the judge of its authoritative record of the phases of the moon, proving that there had been no full moon that night, and it had set long before 11 p.m. The jury acquitted on one ballot.

The story was preserved by John Ford in "Young Mr. Lincoln" (1939) with Henry Fonda as the saintly Abe. The screenplay takes some sentimental liberties with the facts; eg: Fonda defends two brothers, and has to protect their mother from a prosecutor who wants her to name the guilty one.

The true client, Armstrong, later served in the Civil War, and was discharged by Lincoln after he received a letter from Armstong's mother informing him that the man whose life he had saved was seriously ill.

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