Journal of the Institute for the Study of Legal Ethics

Publication Date



It’s a welcome opportunity to be with you. In following the model set by my predecessors, I take the opportunity to say some things that are completely irrelevant to the stated topic. First of all, I believe the prosecutors and the police and the judges and the defense attorneys are, under our present system, enmeshed in a legal system and an administrative system, referring now to the practical facts that Monroe was talking about, that virtually compels them to cheat upon their formal obligations under the law. I think that the exclusionary rule is an engine that drives the police to do much of what they do. My impression is that the police forty years ago were much more inclined to be more nearly truthful in their reports of an arrest transaction because they were aware then that they might get an administrative slap on the wrist but that their cases would not be dismissed because of infraction.

I don't overlook for a moment all the injustices that led the Supreme Court to adopt the exclusionary rules. I was brought up in the near South. Some of you may have even heard of the Sykeston Lynching, which occurred when I was a child. I didn't really understand what it was, except that it was horrible. So I don't yield to anybody on awareness of the social conditions that gave rise to the exclusionary rule. As a former President of the United States said, I'm talking about "a condition." I would say that the same is true of judges. The judges get fed this stuff. The example of Judge Beyer illustrates what can happen, what does happen, what judges who are sensible know will happen. Judges on the state bench are not in there for life. They don't want to choke, but they don't want to lose their jobs, and they do what they do.

The defense lawyers are also in the condition that Monroe described. Systemic malpractice because they don't have time to listen all the way through to what's relevant in a narrow sense, let alone listen in the way that a true legal counsellor would, to hear the inner voice of this person who is now enmeshed in the criminal law, which is as bad a fate as can happen to anyone; to try at least to convey a sense of sympathy, to understand human to human what the defendants face. "We don't have time," the defender would say, and he would be right. He's looking at another bunch of files that might include a case where, as luck would have it, he might be able to get somebody off as distinct from cutting their sentence. I adopt everything that Monroe said about that condition. I adopt everything that Marvin said about the sentencing guidelines. I think we - the legal profession in particular - are trapped in a system that drives us to evil conduct.

Much the same thing exists in civil litigation. My friend, Bob Cummins, wondered why we didn't talk about that too. I participate a lot in civil litigation as a consultant and as an advocate and as an expert witness. I can tell you that across a wide part of it, it stinks just as much as criminal justice. I'm participating in hearings now that I don't quite believe are happening. People are denying that up is "up." It's astonishing then that judges and lawyers are now obfuscating, lying, denying, because they can't deal with the fact that they have committed grave professional offenses. And some of these offenses are on the record. They're not back room.

Why are these occurring? For roughly the same kinds of reasons that prosecuting lawyers and defense lawyers are doing what they are doing. Because the pressures have become so severe to get results for clients, while staying within the rules requires us to produce documents, to be fully truthful in the evidence we present, etc., etc., etc.

One could say, and people have said, that the criminal law system is breaking down because it is trying to accomplish more in social virtue, particularly in the drug field, than our human institutions have capacity to achieve the results. The same is true of much of our civil regulation and our regulatory scheme. We are enmeshed in a legal system whose ambitions, substantive and procedural, far outrun the capacity of our political order to sustain them in a way even approximately conforming to the norms we profess. Hence, we find ourselves a despised profession and rightly so. We are monumentally hypocritical in pretending that we can bring it off when we are demonstrably not pulling it off.

With that happy preface, I want to say I am not ashamed to be a lawyer. I try to be a virtuous one. I've made mistakes. I make a lot of judgment calls, some of them are wrong. I think I know what the rules are. I think I have an idea of the limitations of administered justice and the limitations of fairness in transactions and I do what I can when I'm called upon to help in them. I think a lot of my colleagues in the bar do not have the ability and the sensitivities that measure up to the task. However, I am deeply sympathetic with the condition that many of them find themselves in, for reasons I've just suggested.