tag:blogger.com,1999:blog-10689698.post5940231556507006653..comments2023-05-22T05:46:56.325-07:00Comments on Borenstein's Law: The Argument For The DefenseMortimerhttp://www.blogger.com/profile/10258255437279886326noreply@blogger.comBlogger11125tag:blogger.com,1999:blog-10689698.post-31501903336446534722013-11-11T15:01:19.281-08:002013-11-11T15:01:19.281-08:00Jim, I've been re-watching "Band of Broth...Jim, I've been re-watching "Band of Brothers". I wouldn't stretch our experiences to compare with that kind of bravery, but those of us who have survived the "trials" "in the trenches" and lived to tell "war stories" to others must be a sort of fraternity. Mortimerhttps://www.blogger.com/profile/10258255437279886326noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-16222670251504254392013-11-11T14:58:32.206-08:002013-11-11T14:58:32.206-08:00Aaron, thanks for your thoughtful comment, insight...Aaron, thanks for your thoughtful comment, insightful as usual. I'd be interested to get your reaction to my follow-up which I think expands on some of the ideas in your comment: http://borensteinslaw.blogspot.com/2013/11/the-sisyphus-defense.html<br />Mortimerhttps://www.blogger.com/profile/10258255437279886326noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-21349932294376253742013-11-11T14:29:42.698-08:002013-11-11T14:29:42.698-08:00Many thanks, Mort, for putting it into writing. T...Many thanks, Mort, for putting it into writing. The experiences and cultural references are shared by myself and, I am sure, many others of our generation who became criminal defense lawyers. Although we know we have made lifetime differences for specific clients over the years, the need to be part of something visibly larger in its social impact is there. If we are Jews, we lose sight of the Jewish belief that he who saves a life saves a world. Or we learn to view that belief as romantic, lacking complexity, an abstraction when compared with the detailed reality that we we feel we barely and briefly held onto while helping change the immediate circumstances of a client's life. <br /><br />One of the ways that I respond to the inner doubts about the ultimate value of what I do professionally is to remind myself that it could be worse - I might not have had the chance to try to make a difference. I might have been so damaged by violent early life experiences, by childhood exposure to harmful environmental elements like lead, by poverty or wealth, by drugs or alcohol, by mental illness, by a lack of understanding of history and language and religion and culture, or by a head and heart full of racism and sexism and antisemitism, that I could not ever have the conscience to question the value of my individual efforts to fight injustice and my defense of a concept of freedom which has never truly existed except as a concept of what could be. <br /><br />When I view it that way, I more easily let go of my frustration at not accomplishing something I can see as powerful, and I am grateful to be just another drop of water hitting the granite surface, knowing that my invisible effects will accumulate with those of unseen others until the day comes when the rock cracks. That, for me, is not romantic. It is an observation of how history has been made, and how human progress has been accomplished. In between the flashes of new historic events there are periods in which the past is being eroded by a myriad anonymous efforts like ours. With great respect, AronAnonymoushttps://www.blogger.com/profile/13199859304710578258noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-84187031837651191382013-11-11T13:17:28.586-08:002013-11-11T13:17:28.586-08:00Mort,
I enjoyed reading this. I missed the seminar...Mort,<br />I enjoyed reading this. I missed the seminar but have ordered the video to complete my CLE for ICDA.I was stunned that such an accomplished defender shares the same fears that cause my heart to pound as I sweat profusely at 3 AM in anticipation of a jury trial. Sometimes the panicky physical reactions are not limited to hopeless cases, but routine cases where there is a legitimate reasonable doubt. I have followed your career for most of mine, imitated your arguments in my death penalty cases, and often seek your advice on troubling cases. I value your friendship and collegiality. I have had Ron Coen and Chuck Horan sentence my clients to death. The only way to survive in this business is to seek the counsel of skilled peers. Thank you for reassuring all of us that we are in this together. Jim G.Anonymousnoreply@blogger.comtag:blogger.com,1999:blog-10689698.post-89005078416835426542013-11-03T21:35:01.058-08:002013-11-03T21:35:01.058-08:00Paul, thanks for your poignant memoir and kind rem...Paul, thanks for your poignant memoir and kind remarks. Your story reminded me of a truth that I knew but didn't include in my talk or my post, except maybe by inference. That because our "wins" are rare and hard earned, they stand out more for us as achievements. It is also true as I did say, that as we get worn down, winning comes as more of a relief than a victory but (if we can still feel) the losses do hurt just as bad. Mortimerhttps://www.blogger.com/profile/10258255437279886326noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-45637102774193286482013-11-03T19:31:01.694-08:002013-11-03T19:31:01.694-08:00Mort Bo,
I enjoyed your lecture at the ICDA Semina...Mort Bo,<br />I enjoyed your lecture at the ICDA Seminar. Believe me, with free coffee flowing, most people were listening...I was wired by the time I got home. People who become satisfied with what they do for a living make the mistake of not exploring those feelings. That is ultimately the real problem. The attorney said he wanted to win probably never won anything that he was truly proud of in his life. Because if he had, he would have realized right then and there that victory is fleeting. As a 6th grader I had my first taste of real victory. My 6th grader teacher wanted to send a team for a Lions Clubs track meet that was to be held. We had no team at my school at all. So what he did was have all of the kids, ALL of the kids run at different distances just to see who had any kind of natural ability. I was a fat kid, so I figured I would be last, but I gave it my best try. It turn out I finished among the top three for a distance race he set. So, I trained about two months until the track meet. In the whole area, I won my race and got the gold medal, and, since it was a featured race, I got my picture in the paper...the once, fat kid. I lettered in three sports in high school. I won my very first trial as an attorney, a handoff loser case with multiple prosecution witnesses, on a defendant who took a swing at a hotel clerk on his second day out on parole. But, when you really win some great things, you realize it is all very fleeting. Upon reflection, deep reflection, it becomes clear why the idea of being a "winner" is absurd. The world has to be enjoyed, both the good and bad, because that is how it is designed. When my wife and I first got married we were very poor because of our student loans. We had a dive apartment. Twenty years later in our marriage, we still remember it fondly. I laugh at all the stupid things I have done in my life. I have not lived up to any of my expectations. But, no one ever can. I wish I could eat a banana split everyday, not exercise, and sleep 14 hours a day. Even if I won the Lotto I could not do that because my health would immediately decline and the 8 foot bony black dressed man with the Reaper scythe would come for me in no time. The world does not allow rest or unbridled fulfillment of desire. You cannot "win them all" and, even if your did, someone would offer you a judgeship to take you away from it all. Then, you would be miserable on the bench. So, I just try to give everything a decent shot, just like I did as the fat kid and see what happens. Most of the time, nothing; sometimes, disaster; once in a while, the sweet nectar of victory...that is to be tasted and remembered, before it is gone.Paul in Montebellohttps://www.blogger.com/profile/17745565294434034976noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-55130586922437254972013-11-01T13:05:38.113-07:002013-11-01T13:05:38.113-07:00A happy client and a fulfilled attorney, JL you mu...A happy client and a fulfilled attorney, JL you must be contented. I hope the contentment lasts for the remainder of your career in your helping profession. Mortimerhttps://www.blogger.com/profile/10258255437279886326noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-5758939331407388552013-11-01T11:35:41.337-07:002013-11-01T11:35:41.337-07:00Good talk on Saturday Mort. However, you didn'...Good talk on Saturday Mort. However, you didn't mention that as defense counsel, we *help people*. When someone is accused of a crime, we help them navigate and understand the criminal justice system. We help them understand their case, its strengths and weaknesses, and their potential consequences, the risks and benefits of trial in their particular case. We often help them negotiate a resolution of their case which is favorable or acceptable to them as opposed to the unjust result (initial offer) which the prosecution wanted in the first place. When necessary, we help them by fighting a case in a trial. Regardless of outcome, when we approach our cases and clients with the mindset of helping them understand the process as well as their case options, I find that our clients are happy with my assistance and I feel fulfilled in being about to help them through a criminal justice system that often seems indifferent and unsympathetic to an individual's plight or to the its true purpose of providing justice. -JLAnonymoushttps://www.blogger.com/profile/10668815520729845919noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-39541153261445329122013-11-01T11:12:57.040-07:002013-11-01T11:12:57.040-07:00Mort,
I found myself nodding in agreement with alm...Mort,<br />I found myself nodding in agreement with almost everything. Do want to point out the comment about "trial lawyers" who are terrified of actually trying a case. I spent 20 years in the PD office and saw numerous examples of this. Sadly, a number of these people went on to become supervisors in the office.<br />"Wasted life"-NEVER. Disappointed, discouraged, down, yes, second guessed some tactics, but never felt it's been a waste of time. Don't want to be corny or maudlin, but to someone from the working class area of Jersey City-isn't it all working class-many second generation immigrants-first in his family in college and law school to stand in front of a jury and defend a person's liberty and in two cases his life, this could never be a waste. I know this is more a refection on me than on my profession, but I have never apologized for, nor tried to downplay my role.<br />Liked the personal stories such as Gessler and, of course, the personal touch at the end with the picture at the Coney, knowing that the Cyclone was flying around close by.<br />PaoloAnonymousnoreply@blogger.comtag:blogger.com,1999:blog-10689698.post-8172979621280677132013-10-30T21:50:57.021-07:002013-10-30T21:50:57.021-07:00Jem, thanks for your thoughtful comment. I have al...Jem, thanks for your thoughtful comment. I have always felt that defending an innocent client was far more stressful than representing someone you know is guilty or against whom the evidence is overwhelming. Where there is serious doubt you have a queasy nausea that won't let you rest. Mortimerhttps://www.blogger.com/profile/10258255437279886326noreply@blogger.comtag:blogger.com,1999:blog-10689698.post-43008908278349062942013-10-30T19:50:49.360-07:002013-10-30T19:50:49.360-07:00Superb talk! Honestly, though, most professions ev...Superb talk! Honestly, though, most professions evoke "wasted life" thoughts. Ozymandias and all. Still, your profession is special, and I'd argue that the hostile environment for the accused that has built up over the past decades makes what you do more and more important. What I'd really fear is a time when more and more of your clients are clearly, heroically innocent, instead of the current usual situation where clients are very occasionally totally innocent but mostly just not quite as guilty as the Prosecution's rampant overcharging would imply. When they are mostly innocents stuck in the Kafkaesque criminal justice system, it'll then be clear that our democracy is no longer achieving even approximate justice, but has become merely an instrument for arbitrary and cruel state power. It would be nice for lawyers to routinely have such noble causes, but terrible for the rest of us (and I'm sure their lawyers would lose even more sleep over those clients too). -JemUnknownhttps://www.blogger.com/profile/09588259335327559634noreply@blogger.com