LINCOLN: THE LAWYER AS PRESIDENT

I have written about Abraham Lincoln’s career as a criminal defense lawyer. When he became president there were many occasions when he had to exercise his skills and training for that profession. His approach to problems as reflected in his speeches and writings was “lawyerly.” First, he articulated the issues, and then he fairly stated the evidence and arguments from each side of the case. Finally he would eloquently give his point of view, and support his decision, often citing precedent, but always relying on the force of the evidence that persuaded him.

            As president, he had to decide whether to pardon individuals who were condemned to death. The Constitution (Art. II, Sec. 2) gives the President plenary power to grant a pardon for federal offenses. There is no appeal from his final decision. He is the court of last resort. This power was granted to the executive by the Founding Fathers despite its historical association with monarchs, and its obvious anti-democratic implication. (Hamilton, in Federalist Papers, No. 74, explains that the severity of the criminal law (which at the time provided for death for many offenses) needed to be mitigated. The “Chief Magistrate” as a “man of prudence and good sense” is in the best position to determine whether mitigation exists; his judgment should not be fettered by fears of being overturned.

            During the Civil War, Lincoln almost invariably pardoned soldiers who were condemned to death by military courts martial. He was susceptible to appeals from family members, especially women pleading for their sons, husbands, or brothers, and even for friends and acquaintances.  Most generals opposed as harmful to military discipline his grants of mercy to soldiers condemned to death for violations of military rules. Desertion was the most egregious offense to the militarists, but Lincoln found mitigation in most cases. He cited the “soldier boy’s” youth, inexperience or some other human defect to justify his order to reduce a sentence.

            In the first year of the war, a soldier who slept while on guard duty was sentenced to die as an example to other volunteers about the discipline of military life. Lincoln first sought the expertise of military advisors, learning about the traditional harshness of such rules. Then he received a letter from a woman on behalf of the soldier, a fellow Vermonter. She cited as mitigation several factors, including his youth, his unfamiliarity with the rigors of army life, his recent illness that had weakened him, and his fatigue resulting from his exposure to the enervating heat and humidity of Washington, D.C., so different from his native Vermont. Her most persuasive argument was that, contrary the notion that his execution would deter other soldiers, pardoning him would be praised by the other raw volunteers, encouraging them to greater loyalty.

            Lincoln, at this early time in his presidency, was eager to follow military protocol. He asked General McClellan if he might review the case and issue the pardon. This plea from the president tickled McClellan’s ego and he did it.

            The story of this soldier was widely reported. When in 1863, he died in battle, a poem dramatizing the events was published, inspiring a legend that added to Lincoln’s saintly image.

            But Lincoln was no saint. There were times when he denied pardons and let executions go on. Some soldiers deserted multiple times, re-inlisting over and over so that they could profit by the money paid new recruits. He allowed sentences to stand for those who committed egregious crimes, such as rape.

            And then there were the cases relating to crimes committed by civilians. Adding to enormous burden of his role as commander-in-chief during the war, he had to deal with these cases as well.

            In one case, a slave trader was caught with slaves chained below deck in miserable conditions. By then the slave trade had been illegal for many years. The law said it was punishable by death. BUT by 1861, no slave trader had ever been caught, tried and executed in the United States.

            Just as he did in all other such cases, Lincoln ordered the trial transcript, read it and all the letters and pleas from the man’s lawyers and family, and gave a reprieve of one week for the condemned to make his peace with God before his execution. That was the extent of the mercy he granted in that case.

            In another case, a resident in Norfolk, Virginia, watched “colored” Union troops marching in the street near his home. He vocally protested their presence as “a provocation.”  A white officer ordered his arrest. He then drew a pistol and shot the officer two times, not intending, he later claimed, to kill him. One bullet nicked an artery and the officer died.

            In his trial before the military tribunal, he was represented by counsel who called witnesses in his defense. However, the judges refused to allow them to argue “temporary insanity.” (In a recent notorious case, Dan Sickles, a New York congressman, had shot his wife’s lover and had been acquitted on the argument that “the unwritten law” permitted revenge for the outrage to his “property,” i.e., his wife, and that the provocation caused his temporary insanity.)   

            After the plea was rejected, the defense lawyers withdrew and the defendant gave the closing argument himself. As often the case, this was a bad idea; in this case it was a disaster for him. After denying any intent to kill, he explained his behavior: the colored troops were walking on his sidewalk in broad daylight. Just a year ago, one or more of them might have been in his “N----- yard.” Now, he was expected to bow before them? And when he protested and was arrested, the officer ordered two of “them N-----s” to take him to jail. What was he to do? What would any “man of honor” (!) do?

            Lincoln thoroughly examined the trial transcript. He rejected all arguments, but was troubled by the possibility that a viable defense might have been denied. He hired an “alienist,” the term then used for a mental illness expert. The doctor examined the prisoner and gave his opinion that he was sane, both at the time of the crime, and now. Lincoln then denied the pardon, but as in the other case, granted a week’s reprieve to permit him to “prepare himself.”

            In another infamous case, Lincoln permitted the execution of 38 Native Americans, an act that damages his image for many modern critics. The case is complicated. In Minnesota, a number of young braves rebelled against white authority, protesting the corruption of the Bureau of Indian Affairs, which had long been guilty of denying promised food and support to the tribes, and had treated them miserably in many intolerable ways.  Fed up, the young men went on a rampage. Others joined them. Some attacked whites. Three hundred fifty (350) whites were killed and a few white women were raped. Hundreds of the young men were captured, and 303 were sentenced to be hanged for “killing and other outrages” (meaning rapes). 

        Lincoln reviewed every trial — most of which barely met minimal due process standards. He narrowed the list of condemned men down to 38, eliminating 275 names from the list. Even though most of the braves who were spared still had to suffer imprisonment under very harsh conditions, his action still enraged the white population of Minnesota. Lincoln was under extreme political pressure to reverse himself. In fact, he nearly lost the state in his re-election campaign of 1864. When told about it, Lincoln said: “I could not afford to hang men for votes.”

[Miller, William Lee (2008). “President Lincoln, The Duty of a Statesman.”]

Feel No Pain

Bijou would come home from a frustrating day at work
and want to talk about it
... and talk about it.
I would come home from a frustrating day at work
and want to forget it.

So she talked
... and I listened.
Then I made a terrible mistake.
I suggested solutions for her problems.
She became enraged.
"Don't solve my problem.
Just listen to me and empathize."

I protested.
I am a lawyer,
trained to hear my clients' problems
and to solve them.
Imagine if I told my client that I empathized,
and then left the jail.

Eventually I learned to speak the language,
to sense the warning signs
that marked the beginning of the burst of emotion
that demanded attention.

Bill Clinton is credited
with mastering personal politics.
He made everyone,
especially female voters
feel as if he understood
and empathized
with their problems.
In the jargon of the time,
he felt their pain.

Barack Obama has a hard time with Clintonspeak.
His approach is more lawyerly,
less emotive.
In a crisis he will first seek facts,
then seek solutions.

The press and shallow observers slam him
for failing to show emotion
(i.e., anger) at enemies of the state
-- like BP and GM.
The media wants him to be more like an action star
swearing revenge.

Would they prefer the G.W. Bush tactic
of manipulating the overwrought emotions
of the nation following 9/11
to lead us into disastrous wars?

The mad hatter as counsel for the accused

It takes a certain amount of mental illness to be a criminal defense lawyer. The old public defender’s office was a bag of mixed nuts from the top down. Paranoia was practically a job requirement.

The system and everyone in it was against you. You walked into a courtroom and were met with the cold blast of hostile frost just because you were there to shake things up. If you could handle that, day after day, year after year, you could survive; if it gave you a rush, you could be a star.

You had to be able to stand losing most of your cases, even the rare ones where your client actually might be innocent. You have to be able to restrain your natural aggressiveness and competitive juices because effective defending is often a matter of conceding the high ground to the righteous prosecutors.

Most of the lawyers I have known in this business are severe eccentrics, minority thinkers who, to paraphrase RFK, don’t look at things and ask why, but rather "why the fuck not".

The guy representing my client’s co-defendant in this current trial seems to be close to the edge. He’s got the wild bug eyed look of the heroically messed up paranoid.

When he fails to make a point with a witness due to his inability to overcome the D.A.’s aggressive and persistent petty objections to his poorly drafted questions, he becomes petulant, accusing the judge of bias against him personally, and begins to sulk. Since most of his meanderings and pouts come near the end of a long day in trial, I suspect that his problem is medical.

Early in the day, he is merely scatterbrained and borderline incompetent. But as the clock nears 4 p.m. each day, his affect becomes stranger, his concentration even less focused and his questions less coherent. "Which direction was the car going which was going toward Van Nuys Boulevard?" he asks for the third time. "Objection: asked and answered, vague," the DA shouts. "Sustained," says the exasperated judge. Some jurors giggle.

The lawyer looks confused, as if shocked by the injustice. He asks the same question with the same result. He tries to bring out an inconsistent statement made by the witness at the preliminary hearing, but fumbles it so badly that the D.A.’s objections are sustained. When the D.A. is able to refer to the same prior testimony on another point with the proper foundation, he complains again of bias. When, after the jurors are excused, the judge warns him about his behavior, he stalks out of the courtroom.

The D.A. in her own paranoic way, thinks he is acting this way in a clever ploy to gain a reversal after he is committed to an asylum when the case is over. I feel sorry for the guy, although his bumbling may do some harm to my own case.

Of course, there is a chance that his client may be acquitted and mine convicted, despite or because of the lawyer’s pathetic performance. In the insane world of our legal system, skills and results are often inversely proportional.

FAQ's

A FAQ from clients to their lawyers: “Do you believe I’m innocent?”

My mind races. Here’s what I want to say.

“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."

That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.

Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.

The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.

And probably not in formulating a foreign policy, either.

I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.

Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.

I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.

I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.

It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.

Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.

Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.

In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.

Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.