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Herefore Never to My Own R SPRING 1984 VOL. 18, NO.2 Defending the Guilty / Antitrust / Peace Moves / ArtTrade / Land Use Controls R SPRING 1984 VOL. 18, NO.2 Editor: Constance Hellyer Associate Editor: Michele Foyer Art Director: Barbara Mendelsohn Production Artists: Marco Spritzer, Nancy Singer Student Interns: Emily Brandenfels, Lisa Hudson Cover photo by Leo Holub Other photo and art credits: page 45. Page 4 Page 10 Page 26 Stanford Lawyer is pub­ lished semiannually for alum­ ni/ae and friends of Stanford Law School. Correspondence FROM THE DEAN 2 and materials for publication are welcome and should be FEATURE ARTICLES sent to: Editor, Stanford Defending the Guilty 4 Lawyer, Stanford Law School, Barbara A. Babcock Crown Quadrangle, Stanford, CA 94305. Copyright 1984 by A Conversation with William F. Baxter 10 the Board of Trustees of the with Diana Diamond Leland Stanford Junior Uni­ Antitrust in the '80s: The Zealots vs. the Wackos 17 versity. Reproduction in Thomas J Campbell whole or in part, without per­ mission of the publisher, is AT ISSUE prohibited. Toward an Effective Peace Movement 22 Opinions expressed in by­ John H Barton lined articles are not neces­ Trading in Art: Cultural Nationalism vs. Internationalism 24 sarily shared by the editors or John Henry Merryman by Stanford Law School. Growth Controls: Fueling the Mid-Peninsula House Price Explosion 26 Robert C. Ellickson SCHOOL NEWS 31 Faculty Notes 43 ALUMNI/AE NEWS Alumni/ae Weekend 1983 28 Class Notes 46 In Memoriam 84 Alumni/ae Gatherings 86 Coming Events Back Cover LETTERS 88 faculty group photographs. (Carl Spaeth's deanship was as early as 1974 we were able to go. The faculty photographs from earlier times that Front row, L to R: Byron D. Sher, we located were of individuals, and Thomas C. Grey, Michael S. Wald, did not picture the faculty as a Richard J Danzig, Mauro Cappelletti, group.) Needless to say, we would Robert L. Rabin be interested if anybody has or is Second row, L to R: Gerald Gun­ aware of any such pictures-as, ther, Moffatt Hancock, J Myron Jacob­ indeed, we are interested in all stein, Barbara A. Babcock, Kenneth E. pictures reflecting the history of the Scott, Howard R. Williams, William F School. D Baxter, John Kaplan, William Cohen, Paul Brest, David Rosenhan Third row, L to R: William B. Gould, Victor H Li, Robert A. Girard, John H Barton, John Henry Merryman, 1977 Jack H Friedenthal, Thomas Ehrlich (Dean), Richard S. Markovits, Marc A. John Hart Ely Front: Howard R. Williams, Thomas Franklin, Charles J Meyers, J Keith C. Grey, John Henry Merryman, Mann, Lawrence M Friedman, William s you noticed, the current fac­ Barbara A. Babcock, J Keith Mann. D. Warren A ulty grace this issue's cover (minus a few of us, unfortunately in­ Middle: J Myron Jacobstein, Wayne G. cluding the Dean. That's me above). Barnett, Kenneth E. Scott, David L. Instead of boring you with some Engle. 1967 brief but repetitive message, I Rear: William F. Baxter, Marc A. thought it might be fun to share Franklin, Byron D. Sher, Charles J Front row, L to R: Charles J with you-for purposes of compari­ Meyers (Dean), Gordon Kendall Scott, Meyers, J Myron Jacobstein, Robert A. son and/or nostalgia - some earlier Paul Goldstein, and Paul Brest. Girard, Bayless Manning (Dean), John Henry Merryman, Howard R. Williams, Joseph T Sneed Back row, L to R: Byron D. Sher, Lawrence M Friedman, John Kaplan, Jack H Friedenthal, Douglas R. Ayer, William F Baxter, Gordon Kendall Scott, John R. McDonough, Moffatt Hancock, Marc A. Franklin, Dale S. Collinson, Wayne G. Barnett 1961 Front row, L to R: Harry John Rath­ bun, Marion Rice Kirkwood, Carl Bern­ hardt Spaeth (Dean), James Emmet Brenner, Joseph Walter Bingham Second row, L to R: John Henry Merryman, Moffatt Hancock, John R. McDonough, Gordon Kendall Scott, John Bingham Hurlbut, Lowell Turrentine, Samuel David Thurman, David Free­ man (Assistant Dean) Third row, L to R: Edwin M Zim­ merman, John H DeMoully, Richard A. Wasserstrom, Robert A. Girard, Law­ rence Forrest Ebb, Byron D. Sher, Herbert L. Packer, William F Baxter, Philip H Wile 2 Stanford Lawyer Spring 1984 Spring 1984 Stanford Lawyer 3 II I by Barbara Allen Babcock Professor ofLaw oW can you defend a per­ son you know is guilty? B I have answered that ques­ tion hundreds of times, but never to my inquirer's satisfaction, and therefore never to my own. In recent years, I have more or less given up-abandoning the high­ flown explanations of my youth, and resorting to a rather peevish "Well, it's not for everybody. Criminal de­ fense work takes a peculiar mind­ set, heart-set, soul-set." While I still believe this, the mind­ set, at least, might be more acces­ sible through a better effort at ex­ planation. My perspective is that of a prac­ titioner as well as an academic. From 1964 to 1972 I was a criminal defense lawyer, first with the firm of Edward Bennett Williams in Washington, D.C., and then as a public defender. I regard those years as immensely satisfying. However, this experience also gave me ample opportunity to observe the pathology of the sys­ tem, which I've continued to follow as a teacher of criminal procedure. I've also read many dozens of books by and about criminal d~fense lawyers, which largely mirror my own experiences. With this background - and with my present security in a good aca­ demic job-I feel able to discuss, without the usual hand wringing or washing, what it is like to defend the guilty. 4 Stanford Lawyer Spring 1984 5 The legalistic or positivist's reason. treated as a real person in our so­ What Is the Question? Truth cannot be known. Facts are ciety (almost by definition, one who indeterminate, contingent and, in has a lawyer is a real person) and Most people do not mean to ques­ criminal cases, often evanescent. A accorded the full panoply of rights tion defending those accused of finding of guilt is not necessarily the and measure of concern a lawyer computer crime, embezzlement, or truth, but rather a legal conclusion affords can enable a step toward tax evasion. Usually the inquirer is arrived at after the role of the de­ rehabilitation. And because the asking, How can you defend a fense lawyer has been fully played. accused comes from a community, robber, a rapist, a murderer?1 The sophist would add that it is the beneficial effect of giving him In its components, the question is not the duty of the defense lawyer his due will spread to his friends and first, How can you when you know to act as fact finder. Were she to relatives, decreasing their anger or suspect that if you are successful, handle a case according to her own and alienation. he will be free to commit other assessment of guilt or innocence, To this might be added the murders, rapes, and robberies? she would be in the role of judge humanitarian's reason: the crimin­ Second, how can you defend a rather than advocate. ally accused are men and women in guilty man? You, with your fancy Finally, there is a difference be­ great need, and it is part of one's law degree, your nice clothes, your tween legal and moral guilt: the duty to fellow creatures to come to pleasing manner. defense lawyer should not let his their aid. Third, how can you defend- i.e. apprehension of moral guilt inter­ The egotist's reason. Defending move to suppress the evidence of fere with his analysis of legal guilt. clear guilt found on his person, criminal cases is more interesting The example usually given is of the than the routine and repetitive work break down on cross-examination person accused of murder who can an honest but confused witness, that most lawyers do, even those respond with self defense. The ac­ engaged in what passes in civil prac­ subject a rape victim to a psychia­ cused may be morally guilty but not tric examination, or reveal that an tice for litigation. The heated facts legally culpable. of crimes provide voyeuristic ex­ eyewitness to a crime has a history The odds-maker chimes in that it of mental illness? citement. Actual court appear­ is better that ten guilty people go ances, even jury trials, come earlier free than that one innocent be con­ and more often in one's career than victed. could be expected in any other area What Are the Answers? The political activist's reason. Most of the law. people who commit crimes are And winning-ah, winning-has themselves the victims of horrible great significance because the cards The garbage collector's reason. Yes, it injustice. This is true generally be­ are stacked for the prosecutor. To is dirty work, but someone must do cause most of those accused of rape, win as an underdog, and to win it. We cannot have a functioning robbery, and murder are oppressed when the victory is clear (there is no adversary system without a parti­ minorities. It is often also true in the appeal from a not-guilty verdict) is san for both sides. The defense immediate case, because the ac­ sweet. counsel's job is no different and the cused has been battered and mis­ work no more despicable than that treated in the process of arrest and of the lawyer in a civil case, who investigation. Moreover, what will arranges, argues, and even orients happen to the person accused of My Own Reason the facts with only the client's , serious crime if he is imprisoned is, interest in mind.
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