How Can You Defend Those People? Page 8 When Statutes Are Absurd Page 12 the American Inns of Court Movement Page 24 How Can You Defend Those

THE NORTH CAROLINA STATE BAR

FALL JOURNAL2003

IN THIS ISSUE How Can You Defend Those People? page 8 When Statutes are Absurd page 12 The American Inns of Court Movement page 24 How Can You Defend Those

People?1

B Y THE H ONORABLE R OBERT H. EDMUNDS J R .

Although we attorneys often grumble and fret about negative public perceptions of our profession, I suspect that lawyers have never not had this problem.

8 FALL 2003 ost of the public does not really understand that everyone has London would surely have intervened. However, any such tampering in the judicial a right to counsel. One of the questions commonly asked of processes of the Massachusetts colony would have played squarely into the hands of those lawyers is “How can you defend those people?” When I was a agitators who claimed both that Britain saw its American colonies as little more than prosecutor I heard it asked of the honorable opposition; when sources of tax revenue and that the judges, appointed by the Crown, cared little for colo- MI was practicing as a criminal defense attorney, people asked it of me. Although the ques- nial citizens. Yet there was no avoiding a trial. The soldiers had fired into a crowd without legal authorization and had killed unarmed tion comes up more frequently in criminal cases, where “those people” can be pretty unsa- men. To complicate matters further, no lawyer vory, I’ve heard the equivalent question asked in civil cases. I have even heard lawyers ask wanted to take the case. In the atmosphere of the day, undertaking the defense of the sol- it of other lawyers. diers could be both physically dangerous and financially ruinous for an attorney. Moreover, I expect that few lawyers had much sympathy If law school teaches us anything, it should impunity under the law of the day. The only for the defendants. Even Wellington some teach us the answer to that question. Better way authorities could compel a gathering to years later referred to English infantrymen as minds than mine have addressed it and better disperse was to obtain a warrant from a mag- the “scum of the earth.” So while I have not writers have explained it. I do not propose to istrate, then read the Riot Act to the crowd. seen any description of the charged soldiers as defend once again the importance and effec- Force could be used only if the people still individuals, it would not surprise me if most tiveness of our adversarial system. Instead, I refused to leave. of the citizens of Boston saw the soldiers as want to tell a story that may shed a little light As a practical matter, it is unlikely that any nothing more than uniformed thugs. on just why we (and by “we” I mean all of us magistrate in Boston would be likely to risk Still, a lawyer was needed, so with some lawyers) defend those people. the displeasure of the mob by issuing such an hesitation John Adams volunteered to repre- The hero of the story is John Adams, who unpopular warrant. So the crowd that went to sent the soldiers. He did not want to do it; he later served as our second president. However, the Customs House that day probably felt knew that an attorney representing an unpop- the event I want to discuss occurred much with some justification they were at no risk of ular cause is often shunned. However, Adams earlier, when Adams was a Boston lawyer. The being arrested. However, matters quickly got had studied the case and was convinced that year was 1770. Adams was 34 years old, had out of hand. The crowd grew to over 100 and the soldiers had acted in self-defense. He was built up his practice, and was by any measure became increasingly rowdy as the outnum- known as a patriot, so no one could accuse successful and respected. bered British guards watched with apprehen- him of kowtowing to the British. No less At this time, Boston was an unquiet place. sion. important, he could be comfortable that his British rule was becoming increasingly People began to throw stones, chunks of cousin, Sam Adams, would control the unpopular and the city was a hotbed of oppo- ice, and pieces of wood at the soldiers. Finally, volatile elements of Bostonian society that sition to the Crown. Not only were many cit- when one was hit hard and knocked flat, he might otherwise try to interfere in the case or izens vocal in their displeasure, Boston was came up shooting. His comrades also fired, intimidate the soldiers’ attorney. Nevertheless, also the home of such groups as the Sons of and by the time the smoke cleared, five taking the case risked Adams’ established Liberty which were willing to do more than Bostonians lay dead and six more had been practice. Moreover, it was not going to make just talk. One of the principal agitators against wounded. This event later became known, of him rich, because he was paid but “18 the British was Samuel Adams, John Adams’ course, as The Boston Massacre. Local public guineas” for his work. I do not know how older cousin. Sam was something of a zealot sentiment immediately convicted the British much that fee would be in contemporary cur- in those days and happy to brew up a little of cold-blooded murder. Sam Adams called rency, but it is safe to assume that it compared trouble when he saw a chance. the affair a “bloody butchery,” and Paul unfavorably with his usual rates. An opportunity arose on March 5, 1770. Revere portrayed the incident in a widely-cir- The officer was tried separately from the Normally, Boston was garrisoned by two reg- culated print as a slaughter. other soldiers, and Adams conducted both tri- iments of regular British soldiers. However, on Seen in a larger context, though, this als with skill and vigor. The officer was acquit- that date, a detachment of only eight soldiers shooting presented a particularly intractable ted in the first trial on the grounds of self- and one officer was guarding the Boston problem. The soldiers were charged with defense. In the second trial, two of the soldiers Customs House. Sam sent some of his men murder in the colonial courts of were found guilty of manslaughter and sen- and any others they could find to harass those Massachusetts. From the point of view of tenced to be branded on the thumb, while the guards. I suspect that he only wanted to cause those in London, their soldiers had been remaining soldiers were acquitted. This com- a small fracas and did not anticipate that any- defending themselves from a mob that had promise verdict recognized the unlawfulness thing worse would develop. Moreover, Sam attacked them without justification. If the sol- of some of the soldiers’ acts, while acknowl- surely believed that his men could act with diers were convicted of murder, authorities in edging the heated circumstances under which

THE NORTH CAROLINA STATE BAR JOURNAL 9 the shooting took place. It was a verdict that rebellion that existed in 1770. everyone to simmer down. He also bought satisfied almost everyone, and Boston again It is equally possible that repression could time for the many elements necessary for a calmed down, at least for a while. have led to increased unrest in Boston, result- successful revolution against a powerful conti- It is difficult to think of a better outcome ing in an outbreak of armed rebellion earlier nental power to coalesce. How did it happen? of this vexing case. If the soldiers had all been than happened in fact. It is hard to imagine A good lawyer ably defended a bunch of convicted of murder, as might have happened that any such hostilities would have led to unpopular criminal clients. From our perspec- had a less able advocate represented them, the American independence. History records that tive, it is no wonder that Adams always verdict would surely have been seen in Britain the American Revolution that started in 1775 thought that his defense of the British was one as the foreordained result of a kangaroo court at Lexington and Concord went on for many of the best day’s work he ever did as a lawyer. that deprived the soldiers of a fair trial. On the years, often teetered on the verge of failure, But I’ll bet a month’s pay that a lot of his other hand, if the British had intervened, and only barely succeeded thanks to the par- friends asked him: “John, how can you defend either during trial through a crown-appointed ticipation of the citizens, leaders, resources, those people?” judge or after a murder conviction, the and treasure of all the colonies. In 1770, Bostonians would surely have seen it as a Boston may have been the home of revolu- Justice Robert H. Edmunds Jr. was elected in unjustified royal intrusion into the workings tionary fervor, but most citizens in New York, 2001 as an associate justice with the North of a duly constituted colonial court. We can- Virginia, and the other colonies still saw the Carolina Supreme Court. He earned his JD not know whether history might have played British as no worse than heavy-handed. Few from the University of North Carolina School of out differently if other verdicts had resulted, of the colonies were anywhere near revolt, and Law and in May 2004 anticipates earning a but none of the alternate scenarios seem par- many thought the Bostonians were a bunch of Master of Laws in the Judicial Process (LL.M.) ticularly promising. hotheads. An early start to the Revolution, from the University of Virginia Law School. If the soldiers had been convicted of mur- without all the colonies united in the hope of der, a natural British reaction would have independence, would almost certainly have Endnote been to impose increasingly repressive meas- ended in defeat. 1. This article is adopted from a speech given to the ures on Massachusetts. It is possible that such From almost any perspective, the sudden Greensboro Young Lawyers in March 2003. I ask your forbearance. My sources were not always consistent, acts would have quenched the spark of liber- flare of the Boston Massacre was a moment of and I am no authority on colonial law. This article was ty. A few well-chosen deportations or hang- peril in our history. John Adams’ cool and sen- written by a lawyer for lawyers. ings could have broken the nascent spirit of sible handling of the soldiers’ case allowed

10 FALL 2003 When Statutes are Absurd

B Y T HOMAS L. FOWLER

ccasionally,

our General

Assembly

passes a law

Othat could reasonably have more than one

meaning. If the language the legislature choos-

es to use in a statute is ambiguous, then the

courts are free to—indeed they have little

choice but to1—interpret the ambiguous lan-

guage, that is, choose the proper meaning to

be assigned to the imprecise language of the

Laura Tedeschi/SIS statute.

A recent law review article has observed strategies, “obscur[e] the particular interpretations by legislators and judges. that legislators may on occasion actually meaning of a statute, allowing different Legislators with opposing views can intend to include ambiguity in the statutes legislators to read the obscured provi- then claim that they have prevailed in they pass. This is so because ambiguity may sions the way they wish.” Legislative the legislative arena, and, as long as serve a legislative purpose: ambiguity reaches its peak when a courts continue to issue conflicting When legislators perceive a need to statute is so elegantly crafted that it interpretations, these competing claims compromise they can, among other credibly supports multiple inconsistent of legislative victory remain credible.2

12 FALL 2003 But whether or not the legislators intended the ambiguity, when statutes require interpreting, judges may actually be good at performing this limited kind of legislation, i.e., cleaning up loose language or filling in the gaps left by sketchy or ten- tative statutes,3 and thereby supporting the statute’s internal consistency and basic procedural fairness. For this sort of judicial legislation, however, judges are not free to adopt any interpretation that strikes them as preferable—rather they are guided and limited by a set of rules for statutory interpretation which narrow and direct, and sometimes compel, the judges’ interpretive choices.4 And, of course, the trial court’s efforts to make interpretive choices and to fill in the gaps with judicial legislation are subject to review and confirmation or correction by the appellate courts. All in all this may be a useful two or three step process to produce functioning, comprehensive, and just statutes.5 But what happens when the language in the statute is unambiguous? What if the language is not reasonably subject to more than one interpretation? Then judges must not legislate at all, and must follow that one interpretation. The constitutional mandate of separation of powers demands it. And the North Carolina Supreme Court’s rule in this regard is longstanding and unambiguous6 itself: “When the language of a statute is clear and unambiguous, it must be given effect and its clear meaning may not be evaded . . . under the guise of construction.”7 The Supreme Court has long warned against any inclination toward judicial legislation, and in the words of Justice Ervin, speaking for this Court, “‘[j]udges must interpret and apply statutes as they are written.’ ” [cites omitted]. This Court has long distinguished between liberal construction of statutes and impermissible judicial legislation or the act of a court in “ ‘ingraft- ing upon a law something that has been omitted, which [it] believes ought to have been embraced.’ ” [cites omitted].8 Thus, although judges may strongly dis- approve of a statute or strongly doubt its wisdom, if that’s what it says, the courts must treat it as though it means what it says. Justice Oliver Wendell Holmes Jr., delineated the judges’ limited role vis-a-vis the legislature best, perhaps, when he said:

THE NORTH CAROLINA STATE BAR JOURNAL 13 “[I]f my fellow citizens want to go to Hell, intelligence and discretion. The pre- application of the literal language to a spec- I will help them. It’s my job.”9 sumption against absurd consequences ified set of facts. Or as one commentator There are many examples of cases where of legislation is, therefore, no more than has put it: judges have followed this principle, i.e., the presumption that the legislators are The term absurd represents a collection where the judges criticize or declaim the gifted with ordinary good sense.14 of values, best understood when harshness or unfairness of a statute, but This is similar to the definition of grouped under the headings of reason- then point to the legislature, rather than absurdity found in Black’s Law Dictionary: ableness, rationality, and common the courts, as the proper source of relief.10 “That which is both physically and moral- sense. Based on those values, courts But what if the statute in question is not ly impossible; and that is to be regarded as reject certain outcomes as unacceptable, just harsh, ill-advised or, unwise? What if morally impossible which is contrary to thereby rejecting the literal interpreta- the statute is insane? Well, that’s different, reason, so that it could not be imputed to tions of statutes when they would result of course. a man in his right senses. ... obviously and in those outcomes. ... [T]hose values North Carolina courts, and almost all flatly opposed to the manifest truth; incon- represented by the term absurd accord- other jurisdictions,11 follow a rule that sistent with the plain dictates of common ingly act as a pervasive check on statu- states: “[W]here a literal interpretation of sense; logically contradictory; nonsensical; tory law, and are rooted in the rule of the language of a statute will lead to absurd ridiculous.”15 Thus, although statutory law. The absurd result principle is both results, ... the reason and purpose of the law results that are logical or physical impossi- a surrogate for, and a representative of, shall control and the strict letter thereof bilities are indeed absurd,16 absurdity is rule of law values.26 shall be disregarded.”12 Apparently, if it’s not limited by such formal logic or scien- While this definition of the test may be insane, then it doesn’t matter that the tific analysis. If the statutory result, though more accurate, and attorneys may be well- statutory language is unambiguous— possible, can be described as unjust,17 advised to argue that an unambiguous judges can rewrite the statute.13 bizarre,18 unfathomable,19 unthinkable,20 statute’s harsh or unfair results makes the The first question that comes to mind ridiculous,21 an affront to common statute unjust, and therefore absurd, and is, what distinguishes the merely bad or sense,22 or an evisceration of statutory therefore subject to the court’s authority to regrettable results of a statute that the intent,23 then the statutory result may be reinterpret, many cases decline to apply the courts will decline to correct, from the found to be absurd. With this definition of absurd result principle despite acknowledg- results of a statute that are absurd that the the absurd results principle, can we predict, ing the statute’s harsh or unjust results. It is courts will correct? What does absurd then, when the courts will acknowledge the not uncommon for cases to conclude: mean? North Carolina case law provides problem with a statute but declare it a mat- “While the result may be harsh as to defen- the following definition: ter for the legislature to address, and when dant..., modification, if any, [of the It is presumed that the Legislature does the courts will simply rewrite the statute statute]...is within the province of the not intend an absurdity, or that absurd itself without recourse to the legislature Legislature.”27 A harsh result is apparently consequences shall flow from its enact- based on the problem with the statute a necessary but not a sufficient prerequisite ments. Such a result will, therefore, be implicating absurd results? Probably not.24 for application of the absurd results princi- avoided, if the terms of the act admit of The true test of absurdity may be whether ple. it, by a reasonable construction of the the court can conclude that the legislature’s Although application of the absurd statute. By an absurdity, as the term is choice of statutory language was a mani- results principle—what one commentator here used, is meant anything which is so festly obvious mistake or oversight25 that has called a “dubious, obscure canon of irrational, unnatural, or inconvenient need not await legislative correction statutory construction”28—may be that it cannot be supposed to have been because of the particularly significant or uneven, there is little doubt that the prin- within the intention of men of ordinary egregious consequences resulting from ciple itself is legitimate and sound. Even

14 FALL 2003 the prime proponent of textualism,29 US Supreme Court Justice Antonin Scalia,30 has accepted and applied the principle to rewrite a federal statute which though unambiguous nevertheless contained an obvious mistake or oversight on the part of Congress. In Green v. Bock Laundry Machine Co.,31 the Supreme Court considered language in Federal Rule of Evidence 609(a) that extended a specific provision of the Rule “to the defendant.” The issue before the Court was whether, in addition to a criminal defendant, this provision applied to the defendant in a civil case, and, if so, why it should apply only to the civil defendant and not the civil plaintiff. The lower court had applied the statute as written, concluding that because the language did not restrict its application to criminal trials, it applied to both civil and criminal trials, and because it clearly speci- fied “defendant,” it did not extend to civil plaintiffs.32 The Supreme Court did not disagree with the accuracy of this literal interpretation of the language, but the majority, invoking the absurd results principle, stated that this part of Rule 609(a) “can’t mean what it says.”33 It was not that the literal interpretation was a logical impossibility or was internally inconsistent—it was absurd because its results were But Scalia disagreed with the majority these factors suggest.37 “unfathomable,”34 and because it appeared that the alternative meaning adopted by Applying this analysis, Justice Scalia to be a legislative mistake or oversight. the Court should be based on the statute’s determined, as the majority had conclud- After considering the legislative history of background and legislative history. He ed, that the word “defendant” should be the Rule, the majority then rewrote the explained his basis for selecting an alterna- read to mean “criminal defendant.” He Rule to apply only to the defendant in a tive meaning, as follows: noted that this interpretation did the “least criminal trial. In his concurrence, Justice The meaning of terms on the statute violence to the text,” in that although it Scalia agreed in part. books ought to be determined, not on added “a qualification that the word ‘defen- Justice Scalia agreed that the statute, “if the basis of which meaning can be dant’ does not contain..., [it did] not give interpreted literally,” produced an absurd shown to have been understood by a the word a meaning (“plaintiff” or “prose- result, and that the task of the Court was larger handful of the Members of cutor”) it simply will not bear. The qualifi- “to give some alternative meaning to the Congress; but rather on the basis of cation it adds, moreover, is one that could word ‘defendant’ ” that would avoid this which meaning is (1) most in accord understandably have been omitted by absurdity. Scalia noted that it was “entirely with context and ordinary usage, and inadvertence.”38 appropriate to consult all public materials, thus most likely to have been under- The absurd results principle, as defined including the background of Rule stood by the whole Congress which and endorsed by Justice Scalia, does, then, 609(a)(1) and the legislative history of its voted on the words of the statute (not to appear to focus on whether the choice of adoption, to verify that what seems to us mention the citizens subject to it), and words in the statute that create the prob- an unthinkable disposition (civil defen- (2) most compatible with the surround- lem results, manifestly appear to be a mis- dants but not civil plaintiffs receive the ing body of law into which the provi- take or an oversight. And, of equal impor- benefit of weighing prejudice) was indeed sion must be integrated—a compatibil- tance, Justice Scalia indicates that the alter- unthought of, and thus to justify a depar- ity which, by a benign fiction, we native meaning, selected when the literal ture from the ordinary meaning of the assume Congress always has in mind. I statute is absurd, must also be based on the word ‘defendant’ in the Rule.”35 Scalia would not permit any of the historical legislative “intent” to the extent such is thought it manifest that the word “defen- and legislative material discussed by the ascertainable from—or at least as compati- dant” could not “have been meant literal- Court, or all of it combined, to lead me ble as possible with—the text of the statute ly.”36 to a result different from the one that and the “surrounding body of law into

THE NORTH CAROLINA STATE BAR JOURNAL 15 800, 806 (1983)(“The usual criticism of the canons ... 13. It may bear repeating that if a statute is ambiguous the which the provision must be integrated.” is that for every canon one might bring to bear on a courts should reject the interpretation that leads to point there is an equal and opposite canon, so that the absurd results—but that is not the rule cited above. Tom Fowler is associate counsel with the outcome of the interpretive process depends on the This rule allows the court to reject unambiguous lan- North Carolina Administrative Office of the choice between paired opposites — a choice the canons guage on this ground. Some do argue, however, that Courts. He earned his BA in 1975 from the themselves do not illuminate.”); Cass R. Sunstein, the absurdity itself makes the unambiguous language Interpreting Statutes in the Regulatory State, 103 Harv. L. ambiguous. See Carrington v. Brown, 136 N.C. App. University of North Carolina at Chapel Hill, Rev. 405 (1989). 554, 561, 525 S.E.2d 230 (2000): “This result would and his JD in 1980 from the University of 5. See discussion in Edward H. Levi, An Introduction to be impracticable ... [and] [t]his impracticable result North Carolina School of Law. The opinions Legal Reasoning (1948), at pages 20-24: “Legislatures leads us to hold that N.C. Gen. Stat. § 126-5(e) is expressed in this article are solely those of the and courts are cooperative lawmaking bodies.” ambiguous and therefore subject to interpretation for legislative intent.” For this proposition, this case cites 6. Well, okay, not entirely unambiguous. The Court has, author and do not represent any position or 73 Am. Jur.2d Statutes § 195 (1974): “An ambiguity on the record, undermined the very concept of lan- policy of the AOC. justifying the interpretation of a statute is not simply guage being unambiguous: “Few words have so fixed that arising from the meaning of particular words, but and literal a meaning as to preclude the necessity of includes such as may arise in respect to the general Endnotes examining the circumstances of their context and occa- scope and meaning of a statute when all its provisions 1. See Crow v. Citicorp Acceptance Co., 319 N.C. 274, sion for use.” Sneed v. Board of Education, 299 N.C. are examined. The courts regard an ambiguity to exist 280, 354 S.E.2d 459 (1987): “The defendants also 609, 613, 264 S.E.2d 106 (1980). where the legislature has enacted two or more provi- contend that a change from the ‘community of inter- 7. State ex rel. Utilities Comm’n v. Edmisten, 291 N.C. sions or statutes which appear to be inconsistent. est’ standard to the broader ‘same issue of law or of fact’ 451, 465, 232 S.E.2d 184, 192 (1977), as quoted in There is also authority for the rule that uncertainty as standard we apply today amounts to judicial legisla- State v. Bates, 348 N.C. 29, 34-35, 497 S.E.2d 276 to the meaning of a statute may arise from the fact that tion. To the extent that this may be true, it is unavoid- (1998). giving a literal interpretation to the words would lead able.” 8. Johnson v. Southern Industrial Constructors, 347 N.C. to such unreasonable, unjust, impracticable, or absurd 2. Joseph A. Grundfest & A. C. Pritchard, Statutes with 530, 536, 495 S.E.2d 356 (1998). consequences as to compel a conviction that they could Multiple Personality Disorders: The Value of Ambiguity in 9. As quoted in Robert Henry, The Value(s) of Oliver not have been intended by the legislature.” See also Statutory Design and Interpretation, 54 Stanford Law Wendell Holmes, Jr.: Through a Magic Mirror Darkly, 5 Steven J. Johansen , What Does Ambiguous Mean? Review 627, 628 (2002). Green Bag 105 (Autumn 2001). See also Holmes- Making Sense of Statutory Analysis in Oregon, 34 3. E.g., Peace v. Employment Security Commission of N.C., Laski Letters 249 (M. Howe ed. 1953). Willamette L. Rev. 219, 256-57 (1998)(statutory lan- 349 N.C. 315, 328, 507 S.E.2d 272 (1998)(“In the 10. State v. Gibbons, 303 N.C. 484, 491, 279 S.E.2d 574 guage that leads to an absurd result cannot be unam- absence of state constitutional or statutory direction, (1981)(“We do not disagree that it might be wise pol- biguous, i.e., that it is the absurd result itself that cre- the appropriate burden of proof must be ‘judicially icy for the legislature to enact a law making mere pos- ates the ambiguity—apparentlly because the legislature allocated on considerations of policy, fairness and com- session of a firearm during a robbery a crime, but we can never intend an absurd outcome). mon sense.’”). Compare In Re Spivey, 345 N.C. 404, do not believe this commendable result should be 14. State v. Scales, 172 N.C. 915, 919, 90 S.E. 439 417, 480 S.E.2d 693 (1997), where the Court upheld reached by judicial legislation.”); Blankenship v. Town (1916), quoting with approval Black on Interpretation the trial judge’s appointment of a private attorney to and Country Ford, __ N.C.App. __, __ S.E.2d.__ (12- of Laws. prosecute the case for removal of a district attorney 31-2002)(“[W]e urge the legislature to review the 15. Black’s Law Dictionary (1968), at page 24. (which was not expressly authorized under the applica- applicable statutes to again determine whether in each ble statute), not by reading such authorization into the 16. For cases dealing with results that are impossible, see instance, before obtaining entry of default and before Underwood v. Howland, Comr. of Motor Vehicles, 274 statute but by finding it to be a proper exercise of the obtaining a default judgment, notice to defendant trial judge’s inherent power. N.C. 473, 479, 164 S.E.2d 2 (1968)(“The interpreta- should be required.”); Keech v. Hendricks, 141 N.C. tion urged by plaintiff would require the impossible 4. This familiar arsenal of interpretive techniques are App. 649, 654, 540 S.E.2d 71 (2000)(“We urge the and would defeat the reason and purpose of the law.”); more fully described in the case law and in various trea- General Assembly to reexamine the one-year statute of Comr. of Insurance v. Rate Bureau, 300 N.C. 381, 436, tises. See Edward H. Levi, An Introduction to Legal limitations for intentional torts and determine whether 269 S.E.2d 547 (1980)(“[W]e believe the Legislature Reasoning (1948), Antonin Scalia, A Matter of it is in the interest of justice to [amend it].”. did not intend a result impossible to obtain in practical Interpretation (1997), at pages 25-29. For articles crit- 11. The U.S. Supreme Court has applied the absurd terms ....”); In Re Appeal of Bosley, 29 N.C. App. 468, ical of these canons of statutory construction, see results rule and, as one commentator notes, the high- 472, 224 S.E.2d 686 (1976)(“[W]e must assume that Richard A. Posner, Statutory Interpretation — in the est courts of all 50 states and the District of Columbia the legislature recognized this impossibility and did not Classroom and in the Courtroom, 50 U. Chi. L. Rev. have endorsed this principle. Veronica M. Dougherty, intend an unjust or absurd result.”). Absurdity and the Limits of Literalism: Defining the 17. For cases describing an absurd result as an unjust Absurd Result Principle in Statutory Interpretation, 44 result, see King v. Baldwin, 276 N.C. 316, 325, 172 Am. U.L. Rev. 127, fn 9, at page 129 (1994). S.E.2d 12, 18 (1970)( “It is presumed that the legisla- 12. Petty v. Owen, 140 N.C. App. 494, 499, 537 S.E.2d ture acted in accordance with reason and common 216, 219 (2000); Mazda Motors v. Southwestern sense and that it did not intend an unjust or absurd Motors, 296 N.C. 357, 361, 250 S.E.2d 250, 253 result . . . .”); State v. Jones, 353 N.C. 159, 170, 538 (1979), as quoted in Velez v. Dick Keffer Pontiac-GMC S.E.2d 917 (2000)(“When interpreting statutes, this Truck, 144 N.C. App. 589, 593, 548 S.E.2d 560 Court presumes that the legislature did not intend an (2001)(emphasis added). See also Town of Hudson v. unjust result.”); Harris v. Ntionwide Mut. Ins. Co., 332 City of Lenoir, 279 N.C. 156, 162, 181 S.E.2d 443 N.C. 184, 193, 420 S.E.2d 124 (1992)(“Clearly, the (1971)(“It is well established, however, that the literal legislature ‘did not intend [such] an unjust or absurd language of a statute will be interpreted to avoid an result.’”); State v. Bidgood, 144 N.C. App. 267, 276, absurd result.”); State v. Barksdale, 181 N.C. 621, 107 550 S.E.2d 198 (2001)(“[I]t would be unjust to permit S.E.2d 505 (1921); 27 Strong’s North Carolina Index an enhanced sentence to stand where it is made to 4th Statutes § 35 (1994), as cited in Carrington v. appear that the Prior Record Level has been erroneous- Brown, 136 N.C. App. 554, 561, 525 S.E.2d 230 ly calculated due to a subsequent reversal of a convic- (2000): “Where a literal interpretation of the language tion on appeal, and we do not believe the General of a statute would lead to absurd results and contravene Assembly intended such a result.”). the manifest purpose of the statute, the reason and pur- 18. For cases describing an absurd result as a bizarre result, pose of the law will be given effect and the strict letter see Commissioner of Insurance v. Automobile Rate Office, thereof disregarded.” 294 N.C. 60, 68, 241 S.E.2d 324 (1978)(“In constru-

16 FALL 2003 ing statutes courts normally adopt an interpretation which will avoid absurd or bizarre consequences, the Bruno DeMolli, staff auditor for the North Carolina State Bar, will speak at a con- presumption being that the legislature acted in accordance with reason and common sense and did not tinuing education program for lawyers, sponsored by the North Carolina Bar intend untoward results.”)(emphasis added); see also Foundation, the educational and charitable arm of the Bar Association. concurrence of Justice Scalia in Green v. Bock Laundry Mach. Co., 490 U.S. 504, 576, 109 S. Ct. 1981; 104 The program, titled “Venturing into the Real World,” will be held at 10:15 AM, L. Ed. 2d 557 (1989)(discussing statutory language that results in “a bizarre disposition”). September 17, 2003, at the NC Bar Center in Cary, NC. 19. For cases describing an absurd result as an unfathomable result, see Charns v. Brown, 129 N.C. App. To register, call Amy Page, assistant director of CLE, at 800.228.3402 or e-mail 635, 639, 502 S.E.2d 7 (1998)(“We find it unfath- [email protected]. omable that a superior court judge would be powerless to dismiss an action for lack of personal jurisdiction and insufficiency of process simply because another superior court judge had entered an ex parte order prior to the commencement of the action. Such an N.C. App. 801, 808, 433 S.E.2d 785 (1983)(“While this result may appear unjust to the absurd result would be contrary to statutory and con- (1993)(“Although we agree with petitioners that appel- wife, ... [r]elief ... must come, if at all, through the stitutional jurisdictional requirements.”)(emphases lant’s construction produces an absurd result, we can- Legislature.”); Peeler v. Highway Comm., 48 N.C. App. added). not ignore the express language of the statute.”); for 1, 7, 269 S.E.2d 153 (1980)(“Our holding in this case 20. For cases describing an absurd result as an unthink- articles critical of some courts’ consistency in applying produces a harsh result. However, ... [i]t is the duty of able result, see Concurrence of Justice Scalia in Green v. the absurd results principle see Francis D. Doucette, the courts to declare the law as written, and not to Bock Laundry Mach. Co., 490 U.S. 504, 575, 109 S. Literal Interpretation and “Absurd” Results: make it.”). But compare the following cases where a Ct. 1981; 104 L. Ed. 2d 557 (1989)(discussing statu- Commonwealth v. Wallace and “Trial on the Merits,” 36 mildly unfair result was found sufficiently absurd to tory language that results in “what seems to us an New Eng.L. Rev. 373 (2002); Michael S. Fried, A justify rewriting the statute: Darby v. Darby, 135 N.C. unthinkable disposition”). Theory of Scrivener’s Error, 52 Rutgers L. Rev. 589 App. 627, 521 S.E.2d 741 (1999)(statute literally (2000). allowed plaintiff-wife to accept service of her own com- 21. For cases describing an absurd result as a ridiculous plaint on behalf of her defendant-husband); Best v. results, see State v. Spencer, 276 N.C. 535, 547, 173 25. The test, at its most basic, is that the court must be Wayne Mem’l Hosp., Inc., 147 N.C. App. 628, 556 S.E.2d 765 (1970)(“Even so, an interpretation which able to say, in complete seriousness: “Surely this is not S.E.2d 629 (2001)(statute literally authorized action leads to a strained construction or to a ridiculous result what the General Assembly intended,” as it did in State only by superior court judges resident in the district is not required and will not be adopted.”); Montgomer v. White, 127 N.C. App. 565, 571, 492 S.E.2d 48 and not by non-resident judges holding the courts of v. Hinton, 45 N.C. App. 271, 275, 262 S.E.2d 697 (1997). Compare Hunt v. Reinsurance Facility, 302 the district by assignment); In Re Brake, 347 N.C. 339, (1980)(“This would obviously be a ridiculous result N.C. 274, 293, 275 S.E.2d 399 (1981)(“We cannot 493 S.E.2d 418 (1997)(statute literally denied court and just as obviously not the intent of the believe that the Legislature would have expressed its authority to permit DSS to discontinue efforts to rec- Legislature.”); State v. Cole, 19 N.C. App. 611, 614, intention that the Facility operate on a break-even basis oncile the juvenile and his mother). 199 S.E.2d 748 (1973)(“[C]ourts will not adopt an and provided an apparent means for the Facility to do interpretation which will lead to a strained construc- so and, in the same breath, made such a result impos- 28. Francis D. Doucette, Literal Interpretation and tion of a statute or to a ridiculous result ....”). sible to achieve with the 6% cap. Instead, we find it “Absurd” Results: Commonwealth v. Wallace and “Trial infinitely more logical to presume that the Legislature on the Merits,” 36 New Eng.L. Rev. 373, at 379 (2002). 22. For cases describing an absurd result as a violation of acted in accordance with reason and common sense common sense, see State v. Raines, 319 N.C. 258, 263, 29. “The text is the law, and it is the text that must be and did not act to produce an unjust and absurd 354 S.E.2d 486 (1987)(quoting with approval a U.S. observed. ... Textualism should not be confused with result.”); Insurance Company v. McDonald, 277 N.C. Supreme Court case: “The canon in favor of strict con- so-called strict constructionism .... I am not a strict 275, 286, 177 S.E.2d 291 (1970)(In interpreting a struction [of criminal statutes] is not an inexorable constructionist, and no one ought to be—though bet- constitutional amendment, the Court stated, command to override common sense ....”); Darby v. ter that, I suppose, than a nontextualist. A text should “Manifestly, neither the General Assembly nor the elec- Darby, 135 N.C. App. 627, 628, 521 S.E.2d 741 not be construed strictly, and it should not be con- torate intended or contemplated such an absurd (1999)(“[T]he courts in reading our statutes must strued leniently; it should be construed reasonably, to result.”). import common sense to the meaning of the legislature’s contain all that it fairly means.” Antonin Scalia, A words to avoid an absurdity.”)(emphasis added). 26. Veronica M. Dougherty, Absurdity and the Limits of Matter of Interpretation (1997), at pages 22-23. Literalism: Defining the Absurd Result Principle in 23. For cases describing an absurd result as an evisceration 30. Justice Scalia has been described as the Supreme Statutory Interpretation, 44 Am. U.L. Rev. 127, 133-34 of statutory intent, see Bledsole v. Johnson, __ N.C. __, Court’s “strongest proponent of precision in statutory (1994). __ S.E.2d __ (2003)(Adopting a non-literal interpreta- construction.” Joseph A. Grundfest & A. C. Pritchard, tion of Arbitration Rule 3(p) because “[t]o hold other- 27. Estrada v. Burnham, 74 N.C. App. 557, 560, 328 Statutes with Multiple Personality Disorders: The Value of wise would be to eviscerate the nonbinding nature of S.E.2d 611 (1985). See also In Re Estate of Morris, 123 Ambiguity in Statutory Design and Interpretation, 54 the arbitration proceeding and violate the statutory N.C. App. 264, 267, 472 S.E.2d 786 Stanford Law Review 627, 630 (2002). intent.”)(emphasis added); Brisson v. Santoriello, 351 (1996)(Petitioner argued unfairness and court admit- 31. 490 U.S. 504, 109 S. Ct. 1981; 104 L. Ed. 2d 557 N.C. 589, 597, 528 S.E.2d 568 (2000)(“The literal ted that “there may be some merit to this argument,” (1989). but nevertheless concluded that “[w]hen, as here, the interpretation of such a comprehensive and unlimited 32. 845 F.2d 1011 (Decision without Published statutory language is clear and unambiguous, there is statement could essentially eviscerate the legislature’s Opinion, 1988); see discussion of lower court decision no room for judicial construction and the court must intent in creating the long-standing benefit of a Rule in Green, 490 U.S. 504, 506-508, 109 S. Ct. 1981; give the statute its plain meaning without superimpos- 41(a)(1) voluntary dismissal one-year 104 L. Ed. 2d 557 (1989). extension.”)(emphasis added); N.C. Bd. of Exam. for ing provisions or limitations not contained therein.”); Hayes v. Dixon, 83 N.C. App. 52, 54, 348 S.E.2d 609 33. Green v. Bock Laundry Machine Co., 490 U.S. 504, Speech v. Board of Educ., 122 N.C. App. 15, 20, 468 511, 109 S. Ct. 1981; 104 L. Ed. 2d 557 (1989). S.E.2d 826 (1996)(“Were we to read the language of (1986)(“The statute mandates what at times may cre- 34. Id., at 510. [the statutue] ... as preeminent over the provisions of ate a harsh result. It is not, however, for the courts but the Licensure Act, we would eviscerate the purpose of rather for the legislature to effect any change.”); Palmer 35. Id., at 527. that Act [and so] ... undo an act of our legislature. v. Wilkins, Com’r of Motor Vehicles, 73 N.C. App. 171, 36. Id., at 528. 173, 325 S.E.2d 697 (1985)(court concluded that the Such an action exceeds the scope of our function, 37. Id. which is to interpret, not repeal, statutes.”).. General Assembly simply had not provided for appeals in the matter, “harsh as the result may seem.”); Boyce 38. Id., at 529. 24. E.g., State ex rel. Utilities Com. v. Cellular Assn., 111 v. Boyce, 60 N.C. App. 685, 691, 299 S.E.2d 805

THE NORTH CAROLINA STATE BAR JOURNAL 17 How Can Criminal Lawyers Represent Bad People? Good Question.

B Y L OUIS C. ALLEN III

criminal lawyer is a

person who loves

other people more

than he loves himself;

“Awho loves freedom more than the comfort of security; who is unafraid to fight for unpopular ideas and ideals; who is willing to stand next to the uneducated, the poor, the dirty, the suffering, and even the mean, greedy, and violent, and advocate for them not just in words, but in spirit; who is willing to stand up to the arrogant, mean-spirited, and uncaring with courage, strength, and patience, and not be intimidated; who bleeds a little when someone else goes to jail; who dies a little when tolerance and freedom suffer; and most important, a person who I wasn’t there when Joe gave this introduction. I don’t even know the occasion that inspired it. Knowing Joe, he could have been never loses hope that love and forgiveness will win in the end.” introducing Wade to his barber. And knowing Wade, he would have been just as honored as if he were meeting a head of state, or even Dean Comments of Joe Cheshire Smith. Those two are legendary for their con- introducing Wade Smith sistent inability to recognize clear distinctions in the value of different humans.

FALL 2003 18 At any rate, the quote was brought to my that passion. That was attention, and I have made it my own. When my fault. You would I speak to groups of lawyers, I will frequently think I would be able open or close with those remarks. It never fails to explain myself since to bring a hushed appreciation for the sheer elo- that question, with quence of the phrasing and admiration for the minor variations, is fabled lawyers mentioned. the single most-asked As I talked to a law school class about crim- question I encounter inal law a few months ago, I thought I was in my life. imparting the same theme. Then, after an hour It is a question that of what I thought was brilliant enlightenment, belies some of the the hand goes up and the question comes; the either/or, good/evil, same question I have been asked over and over simplistic thinking I by people who have just heard Joe’s crystal clear had been ranting definition. about earlier in the What is it that we are not getting? Why is class. I am not trying this so hard to understand....or accept? It could to be insulting. Some be because it is the most radical thing to ever of the smartest, best- escape a lawyer’s lips. educated people I The next day, I wrote that student the fol- know have asked that lowing answer. question; people thought to have the Mr. Johnson, wisdom which some- You acknowledged that, perhaps, I was times come with age. I telling the truth when I described a man have seen it in the eyes who struggled mightily with his addiction, and heard it hidden in but worked even harder to hold two jobs, the comments of care for his sick wife, and support his chil- some of the highest dren. Then the crisis came and he was jurists in this land. I threatened with the power being cut off and am sure I asked that possible eviction from his house. In desper- question myself at some point. You and I justice work. It was concise, moderately ation, he walked into a bank and handed share the common characteristics of the clever, and didn’t make anyone very uncom- them a simple note saying, “This is a rob- ones who usually ask the question. We are fortable. Their response was generally a bery.” You acknowledged that I had painted white, we are not poor, and we grew up with grudging, “Well, I guess that makes sense.” a picture of a man whom the system might American television. We work hard on The late Dean Taylor would occasionally treat more harshly than he deserved. many responsible things and we deserve to hand out copies of that essay to first year law But with the keen eye of a lawyer-to-be, be lazy thinkers about tangential matters students at Wake Forest to help them who knows when he is being manipulated, from time to time. So I don’t think it was a become a little more receptive to a criminal you zinged me with the cross-exam that stupid question, nor do I think less of you law class that might have otherwise seemed would expose the flaw in my theory that our for asking it. Far better to ask it than to like a waste of time and energy. The essay justice system is too harsh and inflexible. think it silently. I thank you for giving me also reflected about all I understood and Your question was something like this, I the chance to answer it. Sorry I blew my could articulate at the time. recall: “For every one of these pitiful cases opportunity. In the last seven years, I have come to you can come up with, there are three other All the way home on I-40, like the loser understand much more. I am not at all sure defendants who have criminal records as in an insult contest, I kept coming up with I can articulate it, but you have motivated long as your arm. How do you stand up for the line I wish I had said. I don’t deserve a me to try. My father is a 77-year old, retired those scum-bags?” do-over, but I want one anyway. You may lawyer who is both well-read and thought- I don’t remember exactly how I not understand or appreciate this either, but ful. Upon reading a draft of this effort, he answered, but I feel certain it was unsatis- at least I will have given it my best shot. So opined that he liked my old essay better. It factory. If not for you, it certainly was for here goes. was easier to understand. Frustrated, I said me. I know I came back immediately and Wait. I must preface this further. About of course it was easier to understand, you passionately, because you had tread upon a seven or eight years ago I wrote a short essay old fart. Back then, I was writing a black live nerve ending. But I don’t think I com- on this same question, titled Why I Do What and white answer so anybody could under- municated well. I don’t think you, or any- I Do. It sought to show reasonable minds stand it and nobody could argue about it. one else, understood what I believe. I imag- that representation of every criminal defen- This one is both much harder and much ine you recognized my passion but I doubt dant was necessary to provide a check on more important. It requires a self-awareness you appreciated the belief system behind law enforcement and to make our system of that we all resist. It requires seeing infinite

THE NORTH CAROLINA STATE BAR JOURNAL 19 “We choose to define personal drug use as evil. Yet a ‘deadly sin’ such as greed or pride, we do not criminalize. Therefore we greedy, proud people can believe we are not ‘evil’ like the guy smoking a joint at the end of a long day of picking up our garbage, the refuse of our gluttony.”

shades of gray. It requires a willingness to being “good” is the only way to avoid the definition of evil is true and accurate. admit weaknesses in ourselves and in our sting of death. Just because we learn to Yet, are we any less selective in our foundational systems. We have to acknowl- think more critically as we grow doesn’t rationalizing than in the past? We choose to edge that life is unfair, and no amount of mean we cast aside our early messages. In define personal drug use as evil. Yet a “dead- organization or accessible representation can fact, those have the greatest staying power ly sin” such as greed or pride, we do not change that. It makes me admit that I don’t and the wily craft to hide in our subcon- criminalize. Therefore we greedy, proud do what I do because it will make this world scious. So, even as adults, we will go to great people can believe we are not “evil” like the more “fair.” But this is really far more lengths to convince ourselves that we are guy smoking a joint at the end of a long day important. It is worth a little effort. And good. The most time-honored psychologi- of picking up our garbage, the refuse of our somebody may be ready to hear it. It cer- cal technique for convincing ourselves is to gluttony. And so the system is developed to tainly helps me to try to say it. So here “project” our evil or our dark side onto protect the consciences of the guilty deniers, goes....again. someone else. While we have refined the you and me. There are not good people and bad peo- technique somewhat since the human sacri- The lengths we have gone to make this ple on this earth. There are only people who fice days, we are not yet at the point of rec- system quantifiable are obscene. We started are both good and bad. Read Socrates or ognizing it when we do it. If your reaction with ten rules about 4,000 years ago. When Shakespeare or Carl Jung or those Bible guys to this theory is “Bullshit,” then I welcome my grandfather practiced law, those rules and you will know that the evil within us all you into the global fellowship of the culture had expanded so they could barely fit in one has been a theme throughout time. Yet, if of denial. large book....with very small print. In the we reduce life to a set of codifiable rules, we To modernize the human sacrifice, we last 50 years, we have not been able to define can objectively determine that all humans have systematized our mechanism for that which separates good from bad in an fall into one of two groups: the ones who assigning good and evil. But, as I mentioned entire bookcase of very small print. But that follow the rules, and the ones who have bro- before, you can see the heavy hand of the doesn’t stop us from making more rules. Yet ken rules. Then we can label the rule-break- rulemakers as they select the criteria for somehow we are able to speak of the Scribes ers as “bad” or “evil.” We don’t do this so judging. As fate would have it, I watched Les and the Pharisees—those anal-retentive much because we dislike the rule-breakers. Miserables for the first time last night. Our legalists—with scorn and pity, and without We do it because it lets us believe the corol- hero, Jean Valjean, had been branded a con- the slightest sense of irony. That, my friend, lary: “The rule-followers (who also happen vict and evil for life for stealing a loaf of is denial. The impulse to deny must be the to be the rule-makers for the most part) bread when he was a starving child. His second strongest force motivating humanity. must, therefore, be “good.” This allows us to nemesis, the Inspector, had never done any- Atheists could effectively argue it is the engage in the actual life’s work of most of thing “wrong” in his wretched life. Yet he strongest. I tend to believe there is one force humanity: Denying our dark side. was filled with bile and hatred. The folly of that is stronger. That is the only reason I Some incredibly smart people, Pulitzer determining good and bad solely by the let- have hope for me and the world. Prize-winning anthropologist Ernest Becker ter of the law was made clear. We read the But you are still not convinced. It is so for one, have advanced the theory that we book and watch the movie, but we some- obvious there is a difference between you develop our most powerful denial mecha- how don’t think Hugo was talking about us. and the scum-bags. Any reasonable person nism at a very early age when we first We believe, because there may be differences should be willing to admit there is a point become aware of the concept of death: both in degree, our current system has no relation on the spectrum of humanity where the ours and that of our parents/caretakers. All to the France of another century. In fact, mostly good should be able to separate other neuroses and psychoses spring from instead of recognizing ourselves in the themselves from the mostly bad, and not the lengths to which our minds have gone inspector, we feel noble at how far our soci- feel guilty about anything we do to those to shield us from this most terrifying fear. ety has come since then. We see Les who fall below the cut-off. That certainly Our fear of being unworthy comes directly Miserables as a period piece, not a timeless must be the belief that allows us to keep say- from those earliest childish defenses. As warning about our very nature. We are con- ing we have the best system of justice in the children we are programmed to believe that vinced the present, United States of America world.

20 FALL 2003 You might argue that the alternative belief system I imply is so unquantifiable, so undefinable, that it would render the operation of a civilized world impossible. For that I have no answer. I have an idea, but to propose it would sound so radical as to margin- alize me even further. It would guarantee that the words I have written thus far would be discarded before they had a chance to sneak past your denial defenses and be con- fronted by your highly-evolved and logical brain, which would have to admit at least enough to make you slightly uncomfortable. I don’t like being uncomfortable. I was always a little uncomfortable with my desire to punish people, but I soldiered on for a good long time, happy to see bad people getting their just desserts. As I said, it is easier to keep those denial defenses fortified when you are white, economically secure, and have grown up watching Walt Disney, John Wayne, and Bruce Willis kick some serious evil ass, before living happily ever after. But somewhere beneath my conscious level, a cognitive dissonance festered, suggesting that there was something very wrong with that picture. As unfinished and unsophisticated as my belief system is, my poor little mind still needed some way to visualize the range of human behavior. I needed a framework to hang it on so I could at least talk about it and more colorful, and I realized that my favorite villain.....Hitler, Bobby Knight, with someone else. So here is my working vaunted Maginot Line of denial defenses whomever). Then let us assume that your model. You don’t have to accept any of the was penetrable. Not only were my defenses favorite hero (e.g., Mother Teresa, Gandhi, numbers. They are highly subjective, if not ultimately ineffective, they were toxic, but Andy Griffith) would be a 95. But the psy- arbitrary. The numbers aren’t important. in a slow, undetected, cancerous sort of way. chopaths and the saints are at the skinny You do, however, have to accept the I came to see that those defenses allowed me ends of the curve. There ain’t many of them. proposition that good and evil exist within to disrespect and de-value many human I would suggest that George W. Bush and each one of us. If you can’t accept that, you beings. They allowed me to simultaneously Bill Clinton are within a couple of points may stop reading now, though I would support the concepts of retribution and either way of the mid-point; you choose encourage you to travel as often as possible unconditional love, without acknowledging which one is over 50 and which is under. on the road to Damascus. I have heard that that they are mutually exclusive. It was a The vast majority of us are within 10 points is a place where light bulbs are known to cancer in my soul. of the mid-point. I have yet to meet a soul I come on. So how could I explain my new vision? I would rank over 70, and I have met a lot of My road led me to sit down and come to remembered the bell curve that was so much “good” people (lawyers, doctors, ministers, know some of these “evil” persons through a part of my educational experience, from and the like). I have yet to meet a soul I actual interaction, not just a written record explaining laws of probability to determin- would rank under 30, and I have met some of their lives sometimes known as a rap sheet ing why I must get a C in my Secured pretty mean people (drug dealers, murder- or a pre-sentence report. It was not a short Transactions class in law school. I encourage ers, addicts, lawyers, doctors, ministers, and road. I was on it more than 15 years before you to imagine that the human mix of evil the like). the dim bulb in my head achieved sufficient and good can be placed on a bell curve scale But who am I to rank anyone? How sub- wattage for me to begin to realize that the of 1 to 100, with 1 being absolute evil and jective is that? What are my criteria? If it difference between me and them was not 100 being absolute good. Each of us, when were important to know the correct num- quite what I had believed, and certainly not graded by some all-knowing professor in the ber, I could spend my life coming up with a what I wanted to believe. Yet, when I did sky, would fall at some point on that curve. set of standards. Of course it would still be come to believe it, the world did not Let us assume that Saddam would rate subjective, if I chose to place a high negative become darker. It in fact became far brighter about a 5 on the scale. (You pick your value on whether you have stolen a bicycle

THE NORTH CAROLINA STATE BAR JOURNAL 21 value we already mentioned about making us believe that you and I have higher scores and that those scores are what really count. Surely I can’t be suggesting we don’t need a criminal justice system. That would be so unrealistic and downright insane as to render everything I have said meaningless. You would reach your choke point, even if you were beginning to think there was something in what I have said that resonated with a still, small voice in your soul. So I won’t suggest that...now; maybe in another thousand years. What I would suggest, and hope with all my being, is that we as a society can stop and a low positive value for the time you sat bell curve who is striving to climb the hill of believing we are doing all this because it is with your neighbor in the hospital while her the curve, than the person sitting fat and absolutely right, and ordained by either God son was dying of a gunshot wound. The fact happy with his rating of 65. The more I sit or evolution. I want us to admit that we are that I have more criteria doesn’t make it any and talk with the “scum-bags,” the more I trying to do something to bring some order less subjective, though it may allow me to realize that some of them are truly trying, at and security to a scary and unstable world believe that I am being a fair judge. There’s least at that moment. Sometimes I can actu- because we are afraid of what might happen that denial thing again. ally see that the simple fact of my sitting and if people like us are not in control. We are Perhaps, in some cosmic courtroom, talking to them can cause them to try a lit- more afraid than we are right. I want us to there is a number that could be assigned to tle harder. The unexpected miracle is that it realize that the best of us is not nearly as dif- each of us. But I suggest to you that the helps me to try a little harder, too. It helps ferent from the worst of us as we would like assignment of that number is not the most me to stop and see which way I happen to to believe. important determination for our lives. That be heading at that particular moment in Consciousness is better than denial, number would only be correct for the pres- time. though not always as comfortable. ent moment, and would become immedi- What about the ones who aren’t trying? This might not create Heaven on Earth. ately inoperative. Five short minutes after I If I believed they couldn’t, or never would But, perhaps it might make us a little less helped the old lady across the street, I try, perhaps I would join the ranks of those arrogant in the way we rank our fellow man flipped off the geezer who was driving 45 ready to pull the switch. I simply haven’t and a little more compassionate in how we miles an hour in the passing lane. In an met that person yet. If you think you have, punish him. That wouldn’t be Heaven, but instant, I slipped two points on the I respectfully doubt it. You may have met his at least it would be moving in that direc- evil/good continuum. I was good before, rap sheet, you may have met his own shad- tion...and that’s all that really counts in the and now, suddenly I am bad. OK, maybe ow denial, but you haven’t met him. here and now. I’m not bad, but I did move in that direc- So I suggest that each person’s measure of tion. The addict that struggled for five years success is not his score, it is whether he is That is how I wish I had responded to the to hold on to both his jobs, not resorting to moving forward on the bell curve at any law student...... and every other person who crime to support his habit, did not go from particular point. Success is then never some- simply doesn’t get it. But what I think is a 50 to a 30 the moment he gave in to des- thing you have done, upon which you can enlightening may seem more like blathering. perate futility and robbed the bank, but he reflect and be proud and look down on oth- All this consciousness and denial stuff won’t did move in that direction. ers, but what you are doing. This means that make many radar screens. I don’t always flip off slow-driving wherever you are, no matter how good or So disregard everything in the middle, and geezers. I hope never to do it again. There is miserable your circumstances, the next go back to Joe’s introduction of Wade. Why is it hope for me. The most moment is the most important in your life. the most radical thing ever uttered by a lawyer? important thing in You have a choice to move forward or back- What two words are conspicuously absent from my life is not ward, and what you did yesterday will not Joe’s definition? where I am at determine that choice. It may make the “Justice” and “Fairness.” any given choice easier or more difficult, but it always What word is rarely heard in any facet of moment. It is remains a present choice. the legal system, but is used four times by the direction I So is a criminal justice system successful Joe?...... You find it. am heading. I if all it does is rank, albeit subjectively, and Now, what don’t you understand? am far more sort humanity? Does that not deny the hope moved by the of change and place obstacles before those Louis Allen is the federal public defender in person on the whose choices were the hardest already? Of the Middle District and a member of the back side of the course it does. And it has the extra denial Guilford County Bar.

22 FALL 2003 The American Inns of Court Movement

B Y R OBERT K. WALSH

ver the past several decades, no sub- around the country and their leaders felt the need for a national umbrella organization. That year, the American Inns of ject has received more attention at bar Court Foundation was chartered at Washington, DC, as a non-profit, tax exempt corporation. This foundation association meetings at all levels than serves as the hub for communications among the nation’s Inns, aids the establish- “professionalism.” Teaching and men- ment of new Inns, and provides support for services and programs for Inns in a way that would be beyond the resources of toring law studentsO and young lawyers in the highest values and customs of the legal pro- autonomous small local groups. Today, there are 325 active Inns of Court with over 24,000 active members and twice as fession is one of the prime challenges posed to law schools and the organized bar. Over many alumni members. About two-thirds of America’s law schools have some association with a local Inn of Court. the last two decades, one of the greatest contributions to meeting this challenge has been I first became involved in the American Inns of Court movement in Little Rock, made by the American Inns of Court movement. Arkansas, in 1988. I was a litigator in a law firm there, having previously served as dean of the University of Arkansas at Little Rock School of Law. I had been president of the county bar association four years In 1977, then Chief Justice Warren ment of a set number of formal dinners previously. The then current president of Burger went to England with a delegation with fellow members in the hall of the Inn. this bar was another partner in our firm. of American lawyers and judges as part of a Indeed, there are additional dining require- Under the auspices of the county bar and exchange program. There they observed ments for barristers in the Inn for members the law school, we founded the 43rd Inn of the English Inns of Court system. English akin to American continuing legal educa- Court in the United States, the Judge lawyers are either barristers (basically trial tion requirements. William R. Overton Inn. lawyers) or solicitors (basically office Chief Justice Burger was very impressed When I came to North Carolina to be lawyers). An English barrister must belong with the civility and high professional stan- dean at Wake Forest in 1989, there were no to one of the four Inns of Court in dards he observed on his two-week chapters of the American Inns of Court in London: Inner Temple, Middle Temple, exchange in England. Upon his return to the state. I immediately went to work with Gray’s Inn, or Lincoln’s Inn. The Inns of the United States, he initiated a pilot pro- five great Wake Forest lawyers (Judge Court, and not the English judiciary, admit gram which resulted in the establishment Carlton Tilley, Grady Barnhill, Bill Davis, people to become practicing barristers. The of the first American Inn of Court in 1980 Dan Fouts,1 and Fred Crumpler) to estab- Inns of Court have educational require- at the law school of Brigham Young lish a chapter at the Wake Forest School of ments, including vocational courses, University in Provo, Utah. By 1985, a Law. The Chief Justice Joseph Branch Inn apprenticeship programs, and the require- dozen Inns of Court had been formed of Court began operation the next year,

24 FALL 2003 1990, the same year that the Chief Justice are Wake Forest law students. in the initial masters of the bench class. If William H. Bobbitt Inn of Court began The popularity of our Inn of Court has the judges agree, your subsequent recruit- operation in Charlotte. The Branch and grown greatly in the 13 years since 1990. ment will be far easier. Bobbitt Inns were the first Inns in North We have expanded each member category Every year we have six meetings of our Carolina. The Branch Inn was Inn number of the Inn, so that today there are approxi- Inn. The meetings begin in the early 117 and the first associated with a law mately 150 Inn members, 50 in each of the evening for a demonstration of particular school in the state. three categories. From the beginning, the facets of the litigation process, almost Initially, our Inn had 60 members, con- Branch Inn has involved lawyers in both always involving ethical and professional- sisting of about 24 masters of the bench, Forsyth and Guilford Counties. The inter- ism issues. After the demonstration, we 24 barristers, and 16 Pupils. The masters of est in being a member of the Inn out- have a reception and dinner to allow mem- the bench are judges and experienced trial stripped our ability to expand in size and bers of the Inn to discuss the technique, lawyers who have demonstrated superior keep our collegial character, and in 1996, ethics, and professionalism issues raised by litigation ability and professionalism, and the Guilford County chapter of the the presentation. We have a custom during are really the faculty of the Inn. The barris- American Inns of Court was chartered as dinner at our Inn which we have for years ters are younger attorneys with a few years Inn number 278 under the great leadership called “the Rule.” We have tables for six at of litigation experience. In our Inn, we ini- of Steve Crihfield. Steve has volunteered to dinner and ask one judge and one lawyer tially graduated barristers after three years write an article for the next North Carolina master of the bench to be at each table with of being an Inn member and now we turn Bar Journal focusing particularly on how to two barristers and two pupils. We also ask over our barrister classes every two years to form an Inn. On this subject, I will only that people concentrate on being at a table allow for more young lawyers to participate say that the first thing to do in forming an with different members at each of the six in our Inn. The pupil members of the Inn Inn is to get the agreement of judges to be meetings and not people whom they see

THE NORTH CAROLINA STATE BAR JOURNAL 25 “In addition to mentoring in ethics, professionalism, and the highest customs of the legal profession, the establishment of an American Inn of Court chapter in an area has one other great professionalism benefit: collegiality at the bar.”

regularly. as friends.” One great advantage that our as people. It is harder to be uncivil to some- After the first couple of years of the British counterparts enjoy is that their trial one you really know. operation of our Inn, one of our five lawyers all practice in one jurisdiction in one I have been an evangelist for the founding Board of Directors members of four Inns in the city of London in a coun- American Inns of Court movement since I confided in me that when I first proposed try with most of its population within 250 was first introduced to it in Little Rock in the idea to him, he thought “Gee, just miles of London and a very much smaller 1988. In the last year, I have been ordained what I need, another trial lawyer organiza- bar. One great effect of our two-county Inn as a more formal evangelist by being elect- tion.” He indicated that he agreed to work of Court has been that it has greatly con- ed as a member of the Board of Trustees of on the project as a favor to me and to Wake tributed to lawyers on different sides of the the American Inns of Court Foundation. I Forest. After this revelation, however, he bar getting to know each other better in an have made it my mission to both expand then stated that being a master of the atmosphere that makes for a cooperatively American Inns of Courts to the approxi- bench of our Inn was one of the most functioning bench and bar, avoiding the mately one-third of America’s law schools worthwhile professional activities in which anonymity that helps breed incivility. that have no associated Inn and to try to he had ever engaged. It allowed him to par- I was a litigator in Los Angeles in the expand the Inns in my home state of North ticipate as a teacher and mentor to a great late 1960’s and early 1970’s. I later was a Carolina. The American Inns of Court number of young lawyers and law students trial lawyer in Little Rock during the Foundation has a wonderful staff who are outside of his own law firm. He was able to 1980’s. Most lawyers who have practiced devoted to helping new Inns get up and pass down the values and customs of the for approximately the same amount of running. I hope that many of you will con- profession that he had learned since he time would say that collegiality and civility sider starting new Inns in your area and began practice in a smaller and more inti- at the bar were greater in the earlier time. will associate with the American Inns of mate bar over 40 years ago. That was not my experience, because I Court Foundation. I would personally be In addition to mentoring in ethics, pro- practiced in a smaller community in the happy to help, if you contact me. I will also fessionalism, and the highest customs of the later time. Even though Little Rock had ask the national foundation staff to help. legal profession, the establishment of an about 1,000 lawyers, those who did the You can make a difference to the profes- American Inn of Court chapter in an area same type of civil litigation that I did were sionalism of the next generation of lawyers. has one other great professionalism benefit: a smaller group. Lawyers on the other side collegiality at the bar. In The Taming of the of a case would know that they would Robert K. Walsh has been dean of Wake Shrew, Shakespeare said: “Do as adversaries probably be seeing you or your partners in Forest University School of law since 1989. do in law, strive mightily, but eat and drink future litigation and also got to know you Since coming to North Carolina, he has chaired the North Carolina Bar Association’s Bench, Bar and Law School Liaison Committee for two years and was a vice president of the North Carolina Bar Association and a member of its Board of Governors. He also has been a member of the North Carolina Chief Justice’s Professionalism Commission since its founding in 1999.

Endnote 1. As I was writing this article, Dan Fouts passed away suddenly. He had been president of our Inn for the past several years, taking that job seriously and doing it brilliantly. He was a wonderful role model of professionalism for our law student and young lawyer members.

26 FALL 2003 FICTION WRITING COMPETITION - FIRST PRIZE

The Redemption of Hamish O’Halloran

B Y D AVID R. TANIS

o one really knew where he came from. When anybody The Results Are In! asked he would just say he was from here. He was old In 2003 the Publications Committee of the State Bar sponsored its first enough that none of the other attorneys remembered Annual Fiction Writing Competition. Sixteen submissions were received and judged by a panel of five committee when he wasn’t a fixture in the old courthouse that members. The first, second, and third place entries follow. Noccupied the center of the sleepy old southern town of Pine Ridge. seemed to know for sure. He lived alone in a small, old, white clap- board house on the edge of town. It wasn’t Of course, Hamish O’Halloran wasn’t the district court denizens he sipped his coffee particularly run down but wasn’t what you kind of antebellum name that could be relat- diffidently, did the unchallenging cross word would call well kept either. It had a certain ed to the old solid aristocracy and other land puzzle, and casually perused the local news- Victorian charm with its carpenter Gothic owning families in the area. Nevertheless, he paper, spending most of his time on the obit- tracery. There were a couple of mutts that had a queer kind of pedigree for just having uaries and trivia that was the local news. He roamed his fenced-in back yard, and one been there so long. was polite enough, responding with a nod or rather vicious looking animal that he kept He was a tall, gaunt man in his sixties, a good morning, to the kindly few that chained to a tree stump in the middle of his somewhat Lincolnesque. His hair was thin- deigned to acknowledge him, but he didn’t back yard. No one knew anybody who ning, but he wore it in a scraggly pony tail the appear to have what you would call friends claimed to be related to him or even be his color of dish water. He usually sported a rum- among members of the bar. friend. And none of the other lawyers had pled old suit which seemed to be one of two Behind his back, though, he was often the ever been invited into his house. But it was that he alternated regularly without bother- subject of stories and myths, often floated by his office, at least the front room was, for he ing to ever send to the cleaners. He wore non- one of the lawyers whose cousin or family had a simple old sign that said “H. descript ties and a white shirt that never friend claimed to be in the know. Sometimes O’Halloran, Lawyer,” inauspiciously nailed seemed quite white and was usually frayed at it was rumored that he was a burnt-out hip- next to the front door. the collar. His lack of sartorial splendor was pie, a stoner whose best days had been spent He was a peculiar old bird, was Hamish just one of the many factors that did not in the mud at Woodstock. Some said he had O’Halloran. His law practice consisted endear the old barrister to the other members been a draft dodger and had anonymously almost entirely of court-appointed cases, and of the bar. reinfiltrated back to the state from Canada, most of those were misdemeanors. The He held himself aloof, never bothering to where he had fled to avoid service in the mil- judges just didn’t feel right in appointing him engage in the legal prattle or courthouse gos- itary during the Viet Nam War. Others said to anything more complex than a misde- sip that so delighted the other members of that he had been a soldier and was burnt out meanor case. Invariably, he would enter pleas the bar. When he would find himself in the after having seen more than his share of death of guilty for his court-appointed clients, and little lounge that was the hangout of the other and degradation in Viet Nam. No one really not make much of an argument on their

THE NORTH CAROLINA STATE BAR JOURNAL 27 behalf. He never showed any expression too small. system and everyone expected Farnsworth to either way after a judge ruled, merely accept- Judge Abel Cain, the district court judge offer a plea and O’Halloran to take it. But it ing the sentence, nodding to his client, and whose lot it was to have to conduct first didn’t happen and soon enough the case was silently leaving the courtroom or sitting appearances that day, was not a man to abide the first on the Superior Court trial calendar. down to wait for his next case to be called. shenanigans, either from the state or the The trial judge was no-nonsense Judge One day the courthouse was all astir when defense bar. His heavy hand came down Harley Martin. There were dozens of judges Mrs. Viveca Sandfort was charged with per- evenly on both sides, and there was no doubt throughout the state named Martin, but old jury and she showed up in court at her first whatsoever who ran his courtroom. He Harley was the most feared of them all. Some appearance represented by none other than quickly read Viveca her rights, announced of the lawyers speculated that the members of old Hamish O’Halloran, and not even court the rather lengthy maximum sentence for the Martin clan were trained to be lawyers appointed at that. Viveca was a human exag- perjury, obtained her signature on the rights and judges from birth. Judge Harley Martin geration. She was a woman in her mid forties waiver, and dramatically paused before he looked like he was crafted by some with an outlandish physique, and traditional- said, “Now what about the bond.” Hollywood director. He was the epitome of ly wore clothes and makeup which were Seizing his cue, Farnsworth jumped up judgeness with his long well combed snow designed to make you turn your head and and announced that this felony was mighty white hair, dark piercing eyes looking out think things which would get them arrested. serious and required at least $100,000.00 from under bushy black brows, and his jut- She was married to a ne’er do well who used bond to insure her presence in court at future ting jaw. The courthouse crowd just knew to beat her regularly, it was pretty well hearings. The magistrate, having been hyp- that Miss Viveca was doomed. acknowledged, and nobody could under- notized by the defendant’s form and the Harley called the case for trial. He gri- stand why she stayed with him. Sanford shortness of her skirt, had set the bond at a maced as he saw the antagonists were Sandfort sometimes worked as a used car mere $1,000.00 despite the fact that perjury Farnsworth and O’Halloran. He didn’t like salesman and sometimes he didn’t, but he was was a class E felony. This she immediately either of them, and any thoughts he might never far from his favorite bottle of booze. posted through one of the myriad bondsmen have had that justice would be done were The prosecutor assigned to the case was with whom she was familiar, and walked, beginning to dissipate like the morning dew an arrogant young scion of one of the town’s minutes after her arrest. She had immediate- with the rising sun. He scanned through the more noble families. G. Earl Farnsworth III ly called O’Halloran on her fancy new cell court file as the lawyers set up their books and had gone to the state’s best university, where phone replete with glitter and gadgets. props at their tables, and everyone in the now he lettered in volleyball or some such non- Anyway, Judge Cain looked at Hamish jammed-packed courtroom sat with an contact sport. He was tall, perhaps 6’ 3”, with with an expectant air waiting for some kind expectant air as the trial was about to begin. a finely honed physique, and slicked back of response from him. None came. Everyone “Mr. O’Halloran” Judge Harley Martin hair popular in the yuppie style. He was fond waited and Hamish still said nothing. Finally boomed, apparently startled by the amplifica- of wearing fine, silk, yellow ties superimposed Judge Cain, in disbelief, said, “O’Halloran, tion of his own voice in the microphone the on the colour de jour, usually royal blue or are you going to respond to Mr. Farnsworth’s bailiff had set up in front of him, “I don’t see magenta. He fancied himself a ladies’ man, impassioned plea to jack up this woman’s any motions in the file.” but for some unannounced reason he seemed bond, or are you going to stand mute while Hamish rose, slowly, hesitantly, the out to get Miss Viveca, a woman a good ten she is carted off to jail?” antithesis of the character seated beside him. years his senior. There was certainly more Hamish paused a minute and seemed to “I didn’t file any,” he stammered sheepishly, between them then the normal prosecutor- be considering what to say. At last, after hav- and sat back down awkwardly without fur- defendant animus. Their held glances shot ing received a not so gentle nor subtle nudge ther explanation. daggers at each other. You could almost see from his increasingly anxious client, he quiet- “Hmmph,” replied the old judge, “Put 12 the smoke steaming forth from their eyes. ly responded, “Judge Cain—everybody in in the box, Mr. Speedy.” The clerk did as he This obvious intense mutual emotion caused town knows this woman. Where is she going was bid, and in a few minutes 12 prospective a lot of tittering among the spectators, espe- to go? She enjoys the publicity and wouldn’t jurors were seated, nervously anticipating the cially the lawyers, who began to read much miss a minute of the drama. I guess the start of the proceedings. Farnsworth began more into the situation as the rumors began bond’s about right.” And with that, the lanky and put on a clinic in jury selection. The to spread. lawyer sat down in a way that looked as if he spectators were impressed as the 12 conserva- But the way the young prosecutor treated did it in sections. tive-looking, hanging jurors were turned over old Hamish was rather pathetic. He seemed The onlookers and court hangers on were to the defense. Nine women and three stern- to take him for granted, as if Hamish played aghast, but the lawyers did not expect any- looking men. They looked at Hamish, with no role whatsoever in this show. Farny, as he thing more from O’Halloran. However, his ragged pony tail, suspiciously. was disrespectfully referred to by the bar everyone was surprised when Judge Cain He started by addressing one older some- behind his back, simply thought of old boomed, “I guess you’re right, Mr. what rotund lady in a simple chintz print Hamish as a non-person, and with respect to O’Halloran. Even I know Mrs. Sandfort. I dress, directly. “Mrs. Bean, I don’t think you the first appearance, the attention of all was expect she’ll be in court, all right. Bond stays could be impartial in this case, do you?” He focused on Miss Viveca, wearing a red satin the same. Sit down Mr. Farnsworth.” seemed to know her and she him. skirt and turtle neck sweater, both a few sizes Well, the case proceeded on through the She gave a coy smile, and said, “Guess

28 FALL 2003 not, Hammy.” There was a buzz in the court- asked for a bond hearing and called Viveca to Hammy who had a kind of smug grin peek- room. Hammy? Someone in the real world the stand. In an effort to save her no-account ing out of the corners of his mouth. The two actually knew Hamish O’Halloran. Without husband from years of punkdom, she tried to of them looked at each other a moment and asking why she couldn’t be impartial, Judge resurrect the scoundrel by down playing the understood, and Hammy realized he didn’t Martin excused her for cause, a slight smirk incident and finally admitting that, well no, have to say anything. Harley turned his stu- creasing his normal poker face. Farnsworth, he didn’t hit her. You could tell that Farny was dious gaze on the ADA, and gave a slight with all his greatly advertised legal skill, had basking in the slam dunkness of this situation contemptuous shake of his head. Then look- missed one. The lawyers, at first, were taken as he pictured Viveca trying to explain to the ing over his shoulder at the witness, he said, aback that Hamish had actually removed an jury the fact that she swore under oath that “No, Mr. Sandfort, you don’t have to testify apparently favorable juror. But it didn’t take Sandy had assaulted her and said just the against your wife.” Then turning back to the long for a little admiration to creep in as the opposite under oath at the arraignment. slack-jawed Farny, gaping aghast at the audience realized Hamish had done the hon- The assistant district attorney called Mr. Judge’s ruling, he said, “Mr. Farnsworth I orable thing. Sandy Sandfort to the stand. After the pleas- hope you realize this is not an assault case but Another woman who looked like a busi- antries, Farny got down to business. “Mr. a perjury case. The spousal privilege does ness executive, wearing a black pin stripe suit, Sandfort, did you, or did you not, on the apply and he or Mr. O’Halloran, on behalf of replaced Mrs. Bean. Her eyes dared night of April 24, slug your wife in the jaw his client, can invoke it.” Farnsworth to challenge her. He didn’t. Then with your fist?” Farny, like a cornered rat, instinctively it was O’Halloran’s turn. He stared at her a “Objection,” Hammy called out casually. began the fateful course of action of trying to long time without speaking. Farny jumped to his feet spluttering, “It’s take on the Judge. “But, your Honor, if this is “Mr. O’Halloran?” queried the Judge not leading your Honor,” his face reaching a a perjury case, how will testifying about the whose patience was not one of his stronger peachy shade of beet red at the insult of assault tend to incriminate him?” He was virtues. Hammy O’Halloran, of all people, interrupt- serious. The audience snickered. The lawyers, “In a minute, Judge,” he tersely responding him with a worthless objection. bailiffs, and clerks snickered. The jury even ed as the juror and the lawyer stared each “Grounds, Mr. O’Halloran?” Harley snickered. And then it dawned on Farny and other down, as some sort of unspoken com- peevishly demanded. his blush came close to the beautiful purple of munication seemed to be going on between “Fifth Amendment right against self a Crown Royal bag. Embarrassed beyond them. Farnsworth began to get edgy, fidget- incrimination,” came the reply, again, rather belief, he sat down and thought for a minute, ing in his chair and nervously rapping a pen- casually without the slightest hint of insis- sweat darkening the pretty white collar on his cil on the table in front of him, the only tence. purple shirt. “Come down Mr. Sandfort,” he sound in the eerily still courtroom, but the “You’re not his lawyer, Mr. O’Halloran. said, totally subdued. prospective juror held her ground, unwaver- You can’t raise the objection for him,” Farnsworth asked for a recess in order to ing in her stare. growled Judge Martin. “Go on, Mr. be able to compose himself and to figure out Finally, O’Halloran breathed an audible Sandfort.” what to do next. Harley benevolently granted sigh. He had won or lost the staring contest, Although Sandy Sandfort may have been him 15 minutes. The murmur of the crowd no one knew for sure, but he said succinct- a drunk and a beater of helpless women, he was intense, and there was some laughter at ly, without asking the adamant woman a was no fool, and he sensed that something Farny’s expense as the jurors filed out of the single question, “Defense is satisfied with bad was happening. He took the cue offered courtroom to the haven of the jury room. the jury.” by O’Halloran and turned to the Judge. “Uh, When court came to order 15 minutes The trial proceeded and each lawyer made Judge Martin, uh. I don’t want to testify later, for Judge Martin was certainly punctu- brief, pithy opening statements, O’Halloran’s against my wife. Do I have to answer if I al, some of Farnsworth’s arrogance had being the essence of brevity lasting less then a think it may tend to incriminate me?” He returned after he had looked at the elements single minute. It appeared, according to Mr. had watched a lot of people take the Fifth (as of perjury and considered what he had left as Farnsworth’s brilliantly eloquent forecast of he himself had, especially on some of his far as evidence was concerned. He quickly the evidence, that Ms. Viveca Sandfort had weekend-long toots) on the myriad lawyer and efficiently called the clerk who had given sworn out a domestic violence complaint shows on television. the oath when Mrs. Viveca Sandfort had tes- against the dubious Sandy, alleging under Farny was apoplectic. The particular color tified as to the contents of the domestic vio- oath that he had slugged her in the jaw caus- of purple his face had become complement- lence complaint. He elicited her evidence, ing her to suffer serious injury. This being the ed his yellow tie quite nicely. He sputtered clearly and concisely, about giving the oath fourth time that the old sot had assaulted her, and spumed and finally blurted out like a and about what Viveca said about Mr. or so it was alleged, the misdemeanor became spoiled child, “Judge Martin, O’Halloran is Sandfort slugging her in the jaw. O’Halloran a felony, and Sandy was looking at some hard telling him what to do. He can’t do that. had no questions on cross examination and time. At Sanford Sandfort’s arraignment, Mr. Anyway, the statute says he has to testify in smiled politely at her, and she smiled back Farnsworth had hopped to his feet and self assault cases, and the spousal privilege doesn’t benevolently at the eccentric old lawyer as she righteously asked the judge to raise Sandy’s apply.” coyly walked down from the stand. bond, alleging all the menace to society driv- Judge Harley Martin was a clever old Next, Farny called the court reporter who el that prosecutors often rely on. His lawyer jurist and had seen this coming. He looked at had been recording the proceedings at the

THE NORTH CAROLINA STATE BAR JOURNAL 29 arraignment and bond hearing for Sandy by the world’s greatest orators. When he was neys sat there looking at each other, Hamish Sandfort. She testified about the oath that finished he sat down, as if to punctuate his with a simple expression on his face, which was given to Ms. Sandfort and read those great oration, smug in the knowledge of the maybe contained a hint of a grin, and parts of the transcript in which she said excellence of his speech and certain that vic- Farnsworth, absolutely livid. The Judge, Sandy didn’t hit her. Hammy smiled at her tory was his. Mrs. Viveca Sandfort would go anticipating a nice boring talk of a reasonable too and didn’t have any questions for her, and to jail and the thought appeared to give him length of time, had walked off the bench and she smiled back. It looked like Farny was an odd sense of satisfaction. the bailiff had to run off to find him. When going to get his slam dunk after all. Hamish O’Halloran just sat in his seat he returned, wearing a surprised look, he The State rested and Hammy didn’t make smiling at Farny in an almost congratulatory immediately dove right into the jury instruc- any motions or ask to be heard. Judge Martin way. After a few moments Judge Harley tions. He told them of all the rules, explained somewhat contemptuously at this lack of looked at him and gave him a little, “Ahem,” what reasonable doubt is, and what consti- lawyerly correctness, said, “Call your first wit- just to remind him where he was and that it tutes the elements of perjury. Finally, he told ness, Mr. O’Halloran.” was his turn to address the jury, in case he had them to go out to the jury room and select a Hamish O’Halloran slowly stood, again forgotten. foreman and begin deliberating when the as if in sections, and when the erector set that Hamish rose slowly, looking a little con- bailiff brought them the verdict sheet in a few was his angular body had reached full height, fused. He slowly and purposely buttoned the minutes. he grandly announced, “Defense has no wit- front button of his ill fitting, rumpled suit They weren’t out ten minutes. They all nesses.” and brushed his hair back with both hands, smiled at Viveca as they marched back in the “Oh, no you don’t,” shouted the viva- although his hair was already tightly pulled courtroom. The bailiff handed Judge Martin cious Viveca, none too modestly, as she back in that scruffy pony tail he wore. the verdict, and the judge let a slight whistle leapt to her feet and began to march vigor- Awkwardly, he stood facing the jury and he out as he handed the verdict sheet to the clerk ously to the witness stand. “I’m going to tell could read the antagonism on their faces. to read out loud. The courtroom erupted my side of this story.” No one had ever seen Farnsworth had snowed them, no doubt when the clerk read, “On the charge of per- Hamish move that fast but before she got about it. Hamish was always uncomfortable jury, we, the jury, find the defendant, Viveca half way to the stand, he was next to her speaking in public. He had read an article Sandfort, not guilty.” with his hand firmly on her arm. She spun once which propounded the idea that speak- Apoplectic, Farny jumped to his feet sput- to face him and almost shouted, at least in ing before a group was the number one pho- tering his vain objections. Viveca reached up a voice loud enough for the Judge, jury, and bia of mankind. He agreed, and the idea and planted a big sloppy kiss on Hamish everyone in the first 20 rows to hear. “I am swept over him that perhaps he should give leaving her bright red lipstick on his cheek not going to sit idly by while this clown up and just sit down without saying any- like a neon sign. The audience actually railroads me.” thing. He knew he was no orator, and cer- cheered, and Judge Harley Martin smiled as Hamish bent over and whispered in her tainly was no match for a polished and for he brought his gavel down. ear. She turned beet red and turned angrily to some inexplicable reason, zealous speechmak- After that, Farnsworth and Hamish him. You could just about see the smoke er like Farnsworth. Nevertheless, duty O’Halloran would occasionally pass in the emanating from her. He straightened up, put required him to speak. hallowed halls of justice, but they never again a finger to his lips, paused, and bent down He opened his mouth and sure enough he tried a case together. Farnsworth would def- once more, again whispering in her ear. She had a frog in his throat. He coughed a little erentially nod his head slightly, and say, meekly returned to her seat without another bit, turning crimson with embarrassment, “Good morning, Mr. O’Halloran.” For some word and slammed her well padded posterior but quickly regaining his composure, he took reason, thereafter, whenever Hamish was into the chair. “Defense rests,” O’Halloran a sip of water and began again. appointed to one of Mr. Farnsworth’s cases, announced with finality. “Ladies and Gentlemen of the jury, that some other assistant district attorney would Judge Harley Martin took over after let- was sure a good talk Mr. Farnsworth gave. end up prosecuting it. ting a trace of a grin escape from his stern vis- But one thing he didn’t do, not in his talk just age. He talked to the jury briefly and then then, and not in the evidence he presented to David Tanis graduated from Wake Forest announced that Mr. Farnsworth would be you, was to tell you which one of those two University School of Law in 1976. In 1980 he addressing them first. statements Mrs. Sandfort made was true. was elected district court judge for Forsyth Farnsworth was brilliant in his closing Now Judge Harley Martin, here, is going to County. In 1984 he joined the practice of speech. One of the statements made by tell you that the State has to prove all the ele- Leonard, Tanis & Cleland. Since 1987 he has Viveca Sandfort under oath obviously was a ments beyond a reasonable doubt, and he been a sole practitioner. Tanis served in the mil- lie. He left no doubt in the minds of the will tell you what reasonable doubt is. If you itary and earned the Purple Heart, Bronze Star, jurors that the Defendant was clearly lying can’t tell from the evidence which one of Air Medal, Combat Infantry Badge, and because she had told two contradictory sto- those two statements is a lie and which one is Parachute Badge. He is active in numerous ries under oath. His speech was full of vim true, then Ladies and Gentlemen, that is a community activities and was appointed by and vehemence. He had put his heart and reasonable doubt.” And with that, Hamish President Regan to be chairman of the North soul into the closing speech, for some reason, O’Halloran, attorney at law, sat down. Carolina Viet Nam Veteran’s Leadership and it was worthy of comparison to a speech There was a long pause as the two attor- Program.

30 FALL 2003 FICTION WRITING COMPETITION - SECOND PRIZE

First Cousins

B Y J AY R EEVES

t turned out that my client was related Judge Betts how Rance Dinkins had gone to McAlister’s Body Shop—from which he had been fired days earlier—in a highly intoxi- to another defendant in criminal court cated state and had started slapping people around and smashing things with a tire tool. The prosecutor, with flowing white hair and that day. That was how it started, the a rumpled seersucker suit, periodically raised his arm and pointed accusingly at Rance as he recounted the sorry saga. kinship between them. I was not sur- Judge Betts sat impassively on the bench. He appeared to be asleep. His eyes were hidden under shaggy brows and his chin rested prised. EveryoneI seemed more connected back then. in the cupped palm of his one good hand. My client leaned toward me and brought her mouth to my ear. “That’s my cousin,” she whispered. Hearing this, I dropped my Bic medium- point pen, which plinked to the floor and This was years ago, when Judge Jeremiah court that day in handcuffs and ankle chains. rolled under the bench in front of me and Betts was still presiding in Clarendon I sat in the jury box with the other disappeared. County and I was a young lawyer in lawyers, watching with less than rapt interest “What?” Manning with a general practice and a as Rance Dinkins shuffled clankingly for- “Rance Dinkins up there. He’s my first square windowless office over a feed store. ward, his bored-looking public defender at cousin.” The courtroom was packed that sunny one elbow and a deputy sheriff at the other. I was stunned. Not at the discovery that morning. My client, Janie Mae Burrows, was I was familiar with the antics of Rance Janie Mae was related to Rance Dinkins. The there to plead guilty to a single count of dis- Dinkins, a pathetic character who had stum- county was crawling with Burrows and orderly conduct. I anticipated Judge Betts bled so far off life’s path and was in district Dinkins, most of them having fallen from would fine her $50 and order her to spend court so frequently that the courthouse the same scraggly tree. several weekends picking up trash along the crowd considered him one of their own. What floored me was the fact that Janie overpass. My plan was to get in and get out. As the prosecutor began his recitation of Mae had spoken at all. I was of the impres- I hoped to be back at my desk by noon, the Dinkins case, I left the jury box and sion that she was unable to speak or hear. banging out a closing memo on my IBM waded into the audience of onlookers, wit- Her disability, in fact, was key to our defense. Selectric, concluding this matter cleanly and nesses, and defendants waiting their turn in It explained why she hadn’t stopped her John efficiently while banking a tidy fee to boot. the sad parade. I slid into the pew next to my Deere riding lawnmower and pulled over to The great Jay Foonberg—whose guide to client. Janie Mae Burrows looked at me the side of Mill Street that Saturday night building a successful practice had become questioningly and I gave her a reassuring pat when police chief Son MacFarlin blue- my holy text—would have been proud. on the shoulder. I wrote “We’re Next” in lighted her and sounded his siren. Just ahead of us on the docket was Rance large block letters on my legal pad and In my mind it was an honest defense, Dinkins. Rance was a knotty little fellow showed it to her. She nodded and I gave her because during our brief acquaintance I with a wayward soul and an extraordinarily another pat. had never heard Janie Mae utter a single narrow head. He was also the only person in Up front, the prosecutor was telling word. Her father did all the talking for her

THE NORTH CAROLINA STATE BAR JOURNAL 31 and even provided translation through a ly sold this story to the State, but in fact floor just in front of the bench. Chunks of series of odd and elaborate hand gestures. the prosecutor’s sympathy for her alleged asbestos tile and particle board rained He had accompanied her to our initial disability had been the basis for his lenien- down from the jagged hole in the ceiling meeting and was here in court this morn- cy in reducing a handful of charges to a sin- from whence he had come. ing if needed. gle misdemeanor. Or did I have a duty to He lay there in a tangled pile of debris Who else but someone genuinely clarify this misconception and avoid perpe- and his own limbs, bleeding from the head speech-impaired would need a translator? trating a fraud upon the court? with one leg bent back funny. He looked I locked eyes with Janie Mae. “Ssshhh,” What would Foonberg do? up, dazed, a line of blood trickling down I said, because no better advice came As I reached the defense table, I saw his cheek. Spotting my client, his eyes immediately to mind. that Judge Betts’ forehead was flushed flickered with recognition. The room was suddenly hotter and pink. Not a good sign. Plus it was getting “Why Janie Mae,” he said. “What are smaller. Overhead, the enormous ceiling close to lunchtime, and I had lost my pen. you doing here, cuz?” fan creaked wearily. The prosecutor began reading the litany Janie Mae stood frozen and gape-eyed. Meanwhile, Judge Betts had accepted of original charges—driving an unautho- The deputy sprang over, pistol drawn, and Rance Dinkins’ guilty plea to five counts of rized vehicle, to-wit a John Deere 3000 jabbed the gun at Rance Dinkins’ nose. assault and one count of malicious destruc- lawnmower, along a public thoroughfare; “Freeze,” said the deputy, a perfectly tion of property. He asked if Rance had running a red light; reckless endangerment; ridiculous command because what else anything to say before sentence was pro- failure to stop for a police officer—and could Rance do, lying there in a broken nounced. announced that all offenses had been rolled jumble. “Yessir I do,” Rance said. into the single charge of disorderly con- Judge Betts had risen to his feet, veins Then Rance threw his head back and duct. As I quickly voiced our assent, I had throbbing in his wrinkled neck. hollered “SSOOOEEYY!” For half a a glimmer of hope that we would be out of “You,” he said, pointing a quavering minute he bellowed, and when he finished there cleanly in seconds. finger at Rance Dinkins. the courtroom was dead silent but for the But then Judge Betts looked down at Rance looked up at Judge Betts and groaning fan. A few nervous titters ran Janie Mae. grinned. He opened his mouth and let out through the crowd. “After that last debacle I am almost a feeble “SOOOEEEYY.” Judge Betts had sat through the hog call afraid to ask this,” he said. “But before I And it was at this point that Janie Mae without so much as a blink. Now he slow- pronounce sentence, is there anything you fainted, toppling beside me like a sack of ly raised his head and peered down at the wish to tell the court?” cornmeal. prosecutor and the public defender. I looked over at Janie Mae. To my hor- “Is there anything else?” ror I could see her mouth working, and I The lawyers shook their heads in uni- knew that she was not about to miss her son. Sandwiched between them, Rance moment in the sun without saying some- For days it was the talk of the court- Dinkins beamed proudly. thing. With my left foot I gave her a sharp house crowd, how Rance Dinkins had tried “Well then,” the judge said. “Mister darting kick to the shin. Simultaneously, I to escape from the holding room by crawl- Dinkins, your statement is duly noted. I coughed loudly to cover up her little yelp ing up into the ceiling and nearly crashing hereby sentence you to 30 days on each of pain, then blurted out: “Your honor, my onto Judge Betts’ head. charge plus an additional 90 days for con- client has nothing to say.” Nobody remembers that I was there, tempt of court. Said sentences to run con- The slicing blades of the ceiling fan too. Nobody much cares that I was plead- secutively.” seemed only inches above my head. I prayed ing my case at the very moment Rance The deputy grabbed Rance’s arm and that Janie Mae—who was bent over rubbing came through the ceiling. guided him towards a side door that her leg—would keep her mouth shut. So far I don’t mind. This was years ago, and I opened into a tiny holding room, where he I had not actually lied to the judge. To my don’t consider myself a part of the story. would wait until another deputy came to great relief, the prosecutor stepped in. What I most remember is later that take him across the street. On his way out, “Judge,” he said. “The defendant suffers same day, after Rance had been taken away Rance turned to the crowd and let rip from a verbal and auditory disability.” by the first ambulance. My client Janie another “SSOOOOOEEEYY!” “You mean she can’t speak or hear?” Mae Burrows lay on a stretcher, conscious “That’s my cousin,” Janie Mae said, her Judge Betts said, his shaggy eyebrows rising. but groggy with a nasty bump from her eyes twinkling in admiration. “That’s correct,” said the prosecutor. swoon and collapse. I was holding her “Ssshhh,” I said, with a little heat. “Not “Her condition was a mitigating factor in hand when Judge Betts came over. another word.” this plea arrangement.” “Miss Burrows,” he said. “I must apolo- After the room settled down, the clerk Suddenly there was a sharp crack, fol- gize for the distraction. As a courtesy of the called out “Janie Mae Burrows.” We rose lowed by a terrific boom directly overhead. court I am summarily dismissing all and began our slow slog toward the bench. There was a shower of dust and smoke and charges against you with the admonition My mind was spinning. Should I stick to Rance Dinkins came crashing through the that you refrain from operating your lawn the contention that Janie Mae could not ceiling with a bloodcurdling scream. He speak and hear? Not only had I successful- landed with a sickening thud on the oak CONTINUED ON PAGE 37

32 FALL 2003 FICTION WRITING COMPETITION - THIRD PRIZE

Jesus Freak

B Y V ALDERIA D. BRUNSON

“Charlie, I gotta case for you.” “That’s just it, the family wants to never heard a thing like this in all my life. Charlie Entwistle sat in his high back choose the attorney.” This story made the hairs on my neck leather attorney’s chair running his tongue “For a murder trial, that’s ridiculous. stand at attention. Don’t blow him off slowly across the front of his teeth. Charlie Do they know how much it’ll cost?” without at least hearing his story. If you knew Ron Winters, a fellow colleague and “His church raised the money. Since don’t do it for me, then do it as your law partner, wouldn’t willingly hand over a this morning, they already have close to a Christian duty. Isn’t that what you guys are gem of a case. Even though they worked hundred grand sitting in an account with all about anyway, helping your brother?” together, the deal was the lead attorney more to come. They’re waiting for a bond Charlie bristled and felt his forehead took the majority split. He knew straight to be set so they can put up the church wrinkle involuntarily. It was religious away that Ron wasn’t giving him this case building and bail him out. That’s how blackmail and Ron knew it. It was a tactic out of benevolence. He was certain he was much they love and believe in this kid. I’d he used on occasion, and out of respect, trying to unload a dud. represent him, but they specifically Charlie could only assume, he only “Before you start assuming that I’m requested a Christian attorney. Someone brought it up in moments of desperation. passing over a worrisome matter, know that can understand the kid.” “I’ll go, but just to listen.” that the kid’s family approached me early “What’s to understand?” “Well, c’mon.” Ron gestured towards this morning, and tempting as it was, I “He says he didn’t kill her. He gets the door. thought you’d be better suited. I’ll serve as caught about 11:30 last night with dirt in “Now?” your co-counsel and you can order me his nails, kneeling over her rotting corpse “Time is of the essence.” around.” when the deputy walks up, and he says he “Is that so?” didn’t do it. Don’t that beat all? Thing is, I “Yep, now let me tell you, as the ungod- believe him.” The look on Ron’s face let fearing atheist that I absolutely am, this Charlie know he was serious. Charlie sat in the musty attorney’s one has really struck a chord with me. Kid’s “So what’s his reasoning?” Charlie was booth waiting for Nicholas Wade to a bonafide, tambourine thumping, hallelu- more than a little curious to know what appear. He heard a series of buzzers and jah singing, yes mammin’, no sirrun’ story the boy had told that was enough to clicks deep in the belly of the jail, sounds Christian as you’d ever want to see. Got a get Ron Winters on his side. Ron had that slowly worked their way toward him. clean record, volunteers at a nursing home, served 15 years as an assistant district attor- Even after years of working with criminal Eagle Scout, the works. You name it, if it’s ney, and then ten more as the DA himself, cases Charlie never ceased to feel uneasy in do goodin, he’s doing it.” before entering private practice as one of the jail. He couldn’t let go of the unrealis- “So what’s the charge?” the most revered defense attorneys in Wake tic fear that a trigger-happy guard would “Murder.” County. He was known to be a skeptic over mistake him for an inmate and lock him “You’ve got to be kidding me.” Charlie less. away. He didn’t know where the crazy sat forward. “Are we talking about the same “That, my friend, he’ll have to tell you thought came from. kid you just described?” himself. I’m afraid my heathen lips would- Finally the boy appeared through the “Yep, remember that Lawson girl? Well, n’t do the tale justice. He’s at the jail now. plexiglas. His blond hair shone brightly he was the last one to see her before she dis- The judge won’t set a bond.” even in the dim light. For a brief moment, appeared. They were childhood friends. “I’m honored that you thought of me, Charlie was envious of the boy’s physique. Last night a sheriff’s deputy found him on but I’ve got plenty to keep me busy,” Even beneath the faded orange jumper, he a country road, digging up her corpse.” Charlie stood to cut the conversation short could tell the kid was an athlete. It remind- “Are you serious?” before he ended up with a client that could ed Charlie of his younger days with his “He was pawing at the ground like a prove to be more trouble than it was worth. high school baseball team. Nicholas was a dog digging up a meaty bone.” “Charlie, before you evict me, hear me veritable poster child for dentists every- “Why not get the judge to appoint a out. You’ve known me 20 plus years and where with his radiant white teeth. His public defender.” you know how I stand. I’m telling you I’ve flawless complexion appeared smooth even

THE NORTH CAROLINA STATE BAR JOURNAL 33 through the scarred glass. His blue eyes his lifetime to grow callous at their seem- you of my decision by tomorrow after- seemed to sparkle in the midst of his ingly scripted appearance? He prayed this noon.” He started to tell him right then, solemn countenance. He was as apple pie boy wasn’t trying to pull the wool over his but he had decided to wait until he could as they came. What on earth was he doing eyes. refer the name of another attorney. Pass the in this dank pit? “So when did you go dig up her body?” buck, as Ron had done to him. “Mr. Entwistle?” Charlie needed to get to the meat and “You don’t believe me.” The boy’s “Yes.” quick. Save the drama for the jury. pained expression pleaded for his accept- “Mr. Winters said to expect you.” The boy looked up with an astonished ance. Charlie should have known Ron’s hard look. “It’s not about whether I believe you. pressure antics were all part of fulfilling his “After the dream,” he stammered. “Are The job of a defense attorney is to ensure grandiose promises. you familiar with the Genesis story where that the letter of the law is followed. Now, “I’m here to hear your story.” Better to Cain killed Abel?” I will see you tomorrow with my decision. cut to the chase, with a murder charge, “Yeah.” The boy visibly relaxed at Do not speak with anyone else about this every minute counted. Charlie’s response. matter, okay?” “You’re a Christian?” “You remember the part where Cain Charlie left the small room and walked When Charlie nodded, he noted relief told God that he wasn’t his brother’s keep- into the cool air. spread across the boy’s face. er and didn’t know where Abel was?” “So, what’d you think?” Ron appeared The boy shifted a little. “Rachel was my Charlie nodded and the boy seemed from nowhere. best friend. I suppose they already told you almost giddy. Surely the kid wasn’t about to “Be careful how you go leaping from that I was the last person to see her alive. say that he had killed the girl like Cain had corners in here. You’re liable to get a butt Our church, along with a few others, got killed his brother, Abel. whooping.” together for a social a few weeks back and “Well, God said that Abel’s blood was “You’re avoiding the question, coun- she drove.” crying out to him from the ground. Well, selor. What’d you think?” The two climbed Charlie made a quick note on his legal that’s what happened to me. It was one of into the elevator. pad, but waited for the zest Ron had prom- those dreams where you dream that you’re “It was interesting.” ised him. actually awake. Kind of a dream within a “You’re being elusive. What’d he tell “At the end of the night, she dropped dream. I kept hearing this weird scream. It you?” me off. I said goodbye and that was the last kept resounding over and over in my head. Charlie summarized the boy’s story as time I saw her…alive.” I shot straight up in my bed and I knew they crossed the street. Charlie nodded. without knowing that her blood was call- “He left out a few things.” “Her parents called later that night and ing me. She had died a violent death and “How so?” said she hadn’t come home. I’m sure you needed to be put to rest so her family could “Well, you know of course that he was a saw all the news about the search parties grieve.” prime suspect long before this grave digger and them finding her car abandoned off of Charlie furrowed his brows in what he incident. Even though no one on the force Highway 98.” hoped was a look of interest. He knew that will admit to it, he was being watched. The Charlie nodded. Only hermits and the anything less than a vote of confidence way I hear it, the girl’s cousin is a police Amish could have missed that week-long would shake the kid. officer with the city, Curt Thompson. He news frenzy. “When I woke up it’s like I knew exact- was tailing the boy’s every move. He was “Well, I’d been praying for her to be ly what to do. I went out to my car and the one that followed the kid.” found. Every night I prayed and fasted that started driving. I didn’t know where I was “And?” she’d be found. It was torment not know- headed; I could just hear her blood calling “You sure are curt today. What’s crawled ing.” The kid lowered his head and recited out to me. It was like it was beckoning me up your pants and died?” Ron’s colorful the story as though Charlie wasn’t there. to come to the exact spot where she was. expressions worked well with a jury, but at “I couldn’t sleep at all. They had to pre- Before I knew it I was in a field and digging times they worked Charlie’s nerves. scribe tranquilizers and even then I only at a patch of dirt. I promise you, if you car- “I’m just not in the mood to be enter- slept a couple hours at a time. I kept hav- ried me to my house right now, I couldn’t tained. You’re here relaying the events like ing these dreams that she was fighting find that place again if my life depended on the National Enquirer and the boy’s in against something. I thought that meant it. It was just that night, I was led to that there pulling out the tears like he’s up for she was still alive, you know, fighting for spot.” an Oscar. I can do without all the drama.” her life.” the boy paused a second before “That’s it?” “Well, I can see you’re having one of continuing. “Then the dreams morphed “Yes, sir. I don’t remember anything your days. I’ll make this short. Thompson into her lying still and lifeless. I knew that after that. I woke up the next day in a cell.” followed him to the clearing, and then God was telling me she was dead.” The boy “Okay, well, you know that sharing this pulled off on the other side of the road out placed his face in his hands and wept. information is confidential.” Charlie began of sight. When the boy climbed out and Charlie tried to watch with an open his spiel about attorney-client relationships walked into the woods, Thompson radioed mind. The tears seemed genuine enough, and confidentiality. “I will take everything for backup. He was communicating with but hadn’t he seen enough feigned tears in you’ve said into consideration and inform headquarters when the boy screamed.

34 FALL 2003 Man, I went down there this morning and At home, Charlie sat in front of the tel- last night digging up the remains of Rachel heard the tape myself. That scream was evision mulling over his decision. He and Edwards off of Highway 401 near enough to tie your balls in a knot. I tell Ron were a formidable team and well Rolesville. He is now in police custody at you, I about messed myself.” known statewide for busting the behinds of the Wake County jail where he is being Charlie tried not to chuckle. many a DA. His mind churned over his held without bond. A bond hearing will be “That was part of what sent me over to choices as he aimlessly flipped through the held at 10 a.m. tomorrow morning where his side. I mean, why would a cold-blood- channels. his attorney will attempt to have him ed murderer scream like that. It was like he “Chuck, are you feeling okay?” His tall, released until trial.” was just realizing that she was really dead. lean wife of 26 years stood before him with “Nicholas was and is a wonderful young Thompson ran out after him and said her forehead furrowed. “You’ve been out of man who has served our church faithfully when he walked up on the boy he was it since you came home. I was going to give over the past several years.” This man was mumbling something over and over. He you a few hours to yourself, but this is identified as Nicholas’s pastor. thought it was jibberish until he realized ridiculous. Talk to me.” “He is an active member of my congre- the boy was praying. Come forth, come “I wish I could. It’s nothing to worry gation, who has always had a compassion forth, isn’t that somewhere in the Bible?” your pretty little head over. Come here.” for people. He would never do the things “When Jesus told a dead man named He patted the cushion next to him and she they’re alleging. It’s unthinkable that they Lazarus to come forth out of the grave.” smiled. She was the saving grace that had would charge him with this.” “Yeah, I thought it sounded familiar. kept him sane over the years. Her gentle- The field reporter turned the report He was also saying something about dry ness and love made him feel invincible. She back over to the news team, which dis- bones…” quickly nestled in beside him with her cussed the tragedy of it all before going to “Where the prophet Ezekiel resurrected head resting on his shoulder. His fingers the sports report. an army of dry bones.” Charlie felt like he made their way through her curly gray ten- Charlie sat with his mouth open. In a was back in Sunday school. drils as he smelled her sweet aroma. brief moment of lucidity he found the “That’s it, the boy was praying this fer- He closed his eyes and reveled in the phone and dialed Ron Winters. vent prayer for the girl to be resurrected tranquility of the moment. If every man “Yello,” Ron’s laid-back greeting was from the dead. Don’t that beat all?” had this peace there would be less crime unmistakable. Charlie was quiet as he pondered the and unemployment for criminal lawyers “Have you seen the news?” matter. Ron was right; this case was going everywhere. He wouldn’t mind, he’d take “Man, you know I don’t fool with all to be a doozy. The facts, whether he up gardening and never leave Ruth’s side. that gore and mayhem they report. Wall believed them or not, weren’t the best, and The news anchor on the set interrupted Street Journal every morning with the busi- a murder trial would completely eat up his their quiet moment. ness section of the local paper. That’s all I calendar for the next year, at a minimum. “Charlie Entwistle is representing the need to stay current.” “Do you believe him?” defendant in what promises to be a very “Please tell me you didn’t have anything “You know that’s not the issue.” Charlie dramatic trial.” to do with my name being plastered all had long ago shifted his standard from Charlie sat up abruptly, “What the…” across the local news as Nicholas Wade’s guilt and innocence to simply ensuring “Is it a new case, dear?” attorney.” that the DA did their job without bypass- He motioned for his wife to keep quiet. “What are you talking about?” ing his client’s constitutional protections. Surely Ron hadn’t accepted the case with- “Just now, they’ve got family and friends “Yeah, well I’m telling you, without a out his consent. down at the jail holding a vigil slash protest good attorney, the best, and a miracle from “Nicholas Wade is innocent…” A fami- over all of this. Turn to channel 3, they’re his god, this boy is going to fry. And you ly representative defended the boy. Didn’t running their version of it now.” know like I know, that a good attorney, no they know better than to go to the blood- “Get out. Partner, you know I wouldn’t matter whether it’s politically correct or thirsty media without legal counsel? do something like that. Not without talk- not, has to believe, at least on some level, “I think it’s a tragedy that he claims ing to you first. What do you make of it?” that his client is innocent. It gives us the God had anything to do with this. He’s “I have no idea, but I’m not going to be drive to fight a little harder and a little using God’s name in vain, yep, that’s what forced into this decision. I’m going to call longer. You’ve got to be on his side if you’re he’s doing. Blasphemy!!” The voice of the into that station and give them a piece of even considering taking this case.” black preacher rumbled through the anti- my mind. If they don’t want to deal with a “I can’t say I’m considering it yet.” quated speakers. slander suit, they’ll run a retraction “Suit yourself, Entwistle, but this boy A spindly brunette spoke up from the tonight.” needs you more than any client you’ve ever gathering outside the jail, “He’s telling a lie “Well, keep me abreast. Does all of this had and you know it. You’d do him, his and they ought to electrocute the truth out hoopla mean you’re not going to represent family, and his god a huge disservice if you of him. It’s a shame what he did.” Subtitled the kid?” punk your way out of it.” beneath her image it simply read “Angry “You don’t ever let up, do you? Good member of a local church.” night, Ron.” “According to an anonymous police He hung up only to find his wife staring source, Nicholas Wade was discovered late at him intently. He could only shake his

THE NORTH CAROLINA STATE BAR JOURNAL 35 head. He knew that if he took the case, and the media. Besides that, his alibi is that he that was a big if, she was going to worry was at home with his mommy and daddy. until the minute it was resolved. “That wasn’t too bad.” The team Everybody knows that parents don’t carry “Take it.” walked hastily towards the car. water where alibis are concerned. The DA “What?” “Which part, when the judge summari- will eat him to shreds.” “Take the case, Chuck. You’re running ly denied my request or when the little old “So what do you suggest?” from this, but I can tell that deep down lady yelled out that Nicholas was the “I haven’t a clue, just do your part and you want to help.” antichrist and me the spawn of Satan?” let justice do hers.” Ron raised his beer in a “Not you, too.” “Well, this one has people’s emotions mock toast and threw back the last of the running wild. There’s two things you don’t drink. mess with, people’s religion and their money.” Charlie lay in bed with a large goose “Thanks for your wisdom Ron. You are down pillow fluffed under his head; he a veritable fortune cookie full of advice.” Charlie sat at his desk Monday morning could feel the cool satin of his wife’s gown “I do what I can.” pondering the plight of his client. All as she snored quietly. She was right, but he Ron’s humor helped relax Charlie’s weekend he had struggled over the now couldn’t take this case; he had lost his nerves, but he knew this was going to be a popular question, “Do you believe him?” instinct. His ability to see through tall tales long haul. Going to church Sunday had been like was permanently clouded. going to work. Everyone wanted to discuss The words of the autopsy report burned the case, which had gained growing in his mind like a piercing migraine: momentum on the local news stations. “Semen was found in small traces run- “I know it’s early in the process, but Thank God for confidentiality. So did he ning down the inner thigh of the victim. what angle do you think you’re gonna use?” believe him? He said he did, but did he DNA tests have been conducted and are Ron pulled the tab off his beer. Every really have the extra juice Ron spoke of, the conclusive that the semen found on the Friday night the two stayed late and shot belief that his client was innocent and victim is a positive match for Michael the breeze. Topics were limitless; from the wronged by the system? Did he believe that Brier.” partnership to the lump Ruth had found the girl’s blood had cried the boy out of his His stomach still sickened at the on her breast a few years earlier, anything sleep and served as a beacon for the loca- thought that Michael had done this to an went. tion of her decaying body? eight-year-old child. How could this “I think I’m going to let him tell his No, absolutely not. Not for a second “Christian” be the same animal who had tale.” did he believe such an outrageous tale, even tore at this child’s virtue? The two of them “Are you crazy?” as a Christian. He was sad to say it, but his had prayed together, for crying out loud. “I know silence is usually best, but with atheist partner had more faith in this mat- He had believed him until the report spoke his spic and span clean record and a horde ter than he could fathom. the truth that Michael had so artfully of character witnesses lined up, I think it “Knock, knock,” Ron peaked his head denied. would be best to allow him to explain it in inside Charlie’s office. That was the last murder case he had his own words, the way he did for you and “Come in.” defended and now this. He wanted to me.” “The kid wants to see you.” Ron waved believe Nicholas, but he couldn’t. “Let me rephrase, are you surely crazy?” the jail stationery. Are you afraid that he’s lying or that he’s “I thought you believed him.” Charlie Charlie took the letter and stared at the telling the truth? sipped on his Coke, then beat his chest as choppy script of the teenager. “Let me ask The question appeared plainly and a belch forcefully escaped. you something, why do you believe him?” awaited a response. Nicholas’ story was “Yes, I believe him, but you must have Ron’s face fell from the large smile he incredible, but if he couldn’t move past noticed that his story is crazy. Who else, customarily wore. He sat down in the Michael, then it was time to retire. but a couple of gullible defense attorneys stiffly cushioned seat across from Charlie. Criminal law had been his only trick and and his dear mother, would believe that her “Partner, years of distrust and a hard he was too old to learn new ones. The blood cried out to him?” heart make me believe him.” His jaws question hung in his mind and he knew it Charlie sat in disbelief. Was this the flexed as he clenched his teeth. wouldn’t go away without an answer. same man that had pleaded for him to take Charlie watched as Ron’s eyes affixed to After a sleepless night, Charlie arose the case? an unknown spot on the wall. early and called Ron. “They’re going to rip that story to “You okay?” “I’m going to take it.” shreds. They’ll say he got scared and went Ron didn’t move, while Charlie shifted “Good, I’ve got the paperwork all to move the body or better yet, that he uncomfortably in his chair. The air pres- drawn up. I did it yesterday, just in case regretted killing her and was trying to sure seemed to increase as Charlie waited. you came to your senses.” bring her back to life. They’ll make him He knew that eventually Ron would speak, Charlie should have known. look like a complete loon. They’re already but whatever it was wasn’t going to be easy labeling this the case of the Jesus Freak in for him to say. He hadn’t clammed up like

36 FALL 2003 this since he revealed that Connie had The boy’s blue eyes seemed to peer direct- there’s a missing link, God will show it to asked him for a divorce. ly into his soul as he spoke, “She had a you. I’m sorry, but I can’t.” “Elsie Teatrice. She was a sweet little old boyfriend.” Charlie let out a deep breath. He shook lady. The kind that could easily be your “Who was it?” Charlie jotted the note his head as resisted the urge to bark at the kid great aunt or something like that. She was down. for being so naive. dying and had specifically asked for me.” “I don’t know his name, but I do know “Well it’s going to be a long road, we’ll Ron could remember the day so vividly that they spent a lot of time on the phone have plenty of time to discuss all of this. he shivered from the chill that ran along his and e-mailing each other. I think he’s a col- How’re they treating you in here?” spine. Everything around the aged woman lege student.” “I guess it’s all right. I’m already over had begged for an iron, from the rumpled “Did you tell this to the police?” kitchen duty.” sheets to her wrinkled skin. “Yeah, but I wanted to make sure you “Really?” Charlie could only assume that “She summoned me from her deathbed knew too.” He wrinkled his lips and this was a promotion. so she could confess to killing Sam shrugged his shoulders. “I’m like Joseph in Potiphar’s house. God Warner.” “What else?” is prospering me even in my captivity.” The Her cracked lips had spat out the vile “She was hanging at parties with some boy smiled and his look reminded Charlie of truth behind the murder of a local busi- older kids, I told them that too.” a three year old with a piece of cake. He nessman in the comfort of her musty bed- “Did she do that a lot?” seemed blissfully unaware of his situation. room. Her yellowed, dull eyes had eventu- “I’m not sure, but it was all pretty new for Finally, the boy rose to leave and Charlie ally poured forth tears of relief while he her. I think she wanted to fit in.” shuffled his papers needlessly as he watched had joined in, shedding his own tears of “You guys were close, did she tell you him disappear down the hallway, deeper into guilt. Her burden was finally lifted and his anything else?” the white walled cage. newly loaded. Her confession had come For the first time since he had met him, Nicholas was beyond words. A child that too late. the boy looked down, breaking his intense spoke of honor and integrity with such con- “What did you do?” gaze for just a moment. Charlie knew imme- viction was a strange beast indeed. “There was nothing left to do, Selma diately that the kid was hiding something. For the first time since he had been intro- Warner had already been executed for the After a few seconds the boy spoke, “I only duced to him, he had his answer. The ques- murder of her husband.” pray that the Lord reveals the truth to you.” tion wasn’t whether or not he believed the Charlie felt the pace of his heartbeat “You’d protect her murderer before you’d kid. That was not the decision for him to quicken as he absorbed the shock of Ron’s absolve yourself?” Charlie’s voice quipped. make. The question was whether or not he admission. “I’d protect her honor before I saved cared, and yes he did. He knew then what he The simple housewife had pleaded her myself!” The boy’s eyes flashed with such had to do. In the silence of the booth, he did innocence from the beginning all the way intensity that Charlie knew he had offended something he hadn’t done in ages; he bowed to her tragic end. Ron had ignored it once, him. For a moment he was thankful for the his head and prayed. and now, bearing the same look of her sin- one-inch barrier between them. cere desperation, he refused to ignore “Don’t think I haven’t considered it, I’ve A graduate of UNC Charlotte and NC Nicholas’ pleas. thought about it everyday. It’s not easy, I Central School of Law, Valderia Brunson is an Ron’s eyes were hollow as he continued, wish it were. I don’t know who did this to associate attorney with Reinhardt Milam Law “That was the day I switched teams.” her, I’d scream it from the rafters if I did. She Group, PLLC, where she practices real estate did do some things, but she’s gone now and law. She enjoys writing and is currently in the all I have left is our friendship. I can’t betray process of converting Jesus Freak to a full length that. Just do what you have to do and if novel.

First Cousins (cont.) closer to the pines and all notions of ethics law is a puzzle.” and innocence and guilt had become elu- mower on public thoroughfares at all times sive and vaporous as mist off the river. Jay Reeves graduated from the University of in the future.” Judge Betts unzipped his robe and flung South Carolina Law School in 1981. He has Janie Mae grew misty-eyed. She released it across his shoulder. There were flecks of four children and lives and works in Chapel my hand and reached for his. asbestos like snowflakes in his hair. He Hill. His practice concentrates in representing “Thank you, your honor,” she said. looked old then, and tired. He began lawyers and other professionals in licensing, Then they were sliding her into the sec- trudging back to the courthouse, then sud- insurance, and disciplinary matters. He writes ond ambulance and screaming off. denly stopped and turned to me. the column "Ask the Risk Man" for North I stood there in the parking lot with “Wait a minute,” he said. “I thought Carolina Lawyers Weekly and was formerly Judge Betts as my client rolled away free as your client couldn’t talk.” vice president-risk management with Lawyers a bird and the red Carolina sun dipped “Well Judge,” I said. “Sometimes the Mutual.

THE NORTH CAROLINA STATE BAR JOURNAL 37 The View from the Fifth Floor of the Justice Building (On a Clear Day)

B Y T HOMAS P. D AVIS AND T HOMAS L. FOWLER

The North Carolina Supreme Court Library the Dispute Resolution Council. This arti- denied that the necessary calculations is open for public use weekdays from 8:30 cle focused on responses to the question of implicitly approved by Purdy were binding. a.m. to 5:00 p.m., except on state holidays. delay of payment, and concludes that On the same ground, one could argue that The Library is located on the fifth floor of the mediators, “by and large, do not get paid “any applicable adjustment” definitively Justice Building, 2 East Morgan Street, by the rules.” distinguished the judgment finally Raleigh, North Carolina. obtained from the jury verdict, but did not Barbara R. Morgenstern, Professional vs. settle whether post-offer costs and fees I. Recently Published Articles of Personal Goodwill – The Time Has Come were included in the calculation of judg- Interest to North Carolina Attorneys For An Equitable Approach, 23 FAMILY ment finally obtained—even though Poole FORUM 1 (June 2003): The author reviews implicitly approved such a calculation. Louis A. Bledsoe III, Clark v. BASF: An a difficult issue in the law of equitable dis- Thus, in Roberts v. Swain, 353 N.C. 246 Employer’s Antidote to Vaughn v. Revco, tribution: the valuation of the goodwill of (2000), the court of appeals felt free to 21 LABOR & EMPLOYMENT 1 (April 2003): solo professional practices. She concludes read narrowly the “any applicable adjust- Many employment law practitioners were that we should “distinguish between per- ments” language of Poole as not including surprised by Vaughn v. CVS Revco D.S. sonal and professional goodwill,” and post-offer costs and fees. Yet, the Supreme Inc., 144 N.C. App. 534 (2001), rev. “consider only professional or enterprise Court reversed, stating that the “adjust- denied, 355 N.C. 223 (2002), which held goodwill as marital property.” ments” had not been limited in Poole to that “an employee’s state law claims for pre-offer costs, and that Poole had implicit- anticipatory breach of contract and unfair Thomas Fowler, Law Between the Lines, ly approved the calculation of the trial trade practices were not pre-empted by 25 CAMPBELL L. REV. 151 (2003): Are court (such calculation having included ERISA when the employee sought to lower court judges bound only by the post-offer costs and fees). Fowler asks why recover as damages the value of certain explicit text of an opinion of the supreme in Roberts the implicit calculation pension benefits the employer had erro- court, or are those logical steps and calcu- approved in Poole was given weight, while neously advised the employee he was enti- lations that are necessary to the appellate in Poole the implicit calculation approved tled to receive under the employer’s pen- decision—those not clarified in the ration- in Purdy was not. sion plan.” In light of Vaughn, “the best ale of the court, but nonetheless implicitly general strategy for employers . . . is to accepted—properly extracted as part of the JUDICIAL REVIEW: BLESSING OR CURSE? remove to federal court under ERISA holding? Fowler argues that the issue is OR BOTH? A SYMPOSIUM IN Section 502 any state court lawsuit assert- raised by opinions interpreting North COMMEMORATION OF THE BICENTENNIAL ing state law claims to recover the value of Carolina’s Rule 68, for example. According MARBURY V. MADISON, 38 WAKE FOREST allegedly promised or lost pension plan to Fowler, Purdy v. Brown, 307 N.C. 93 L. REV. 313 (2003): Includes these arti- benefits.” A recent federal district court (1982), necessarily presumed that post- cles: Michael Kent Curtis, Judicial Review decision, Clark v. BASF Corp., 229 F. offer costs and fees were not within the and Populism; Daniel A. Farber, Judicial Supp.2d 480 (W.D.N.C. 2002), “has pro- definition of “judgment finally obtained,” Review and Its Alternatives: An American vided powerful ammunition for employers though neither the rationale nor any lan- Tale; Sanford Levinson, Why I Do Not seeking to sustain removal of state court guage labeled a “holding” in the opinion Teach Marbury (Except to Eastern suits like Vaughn . . . .” explicitly said so. Poole v. Miller, 342 N.C. Europeans) and Why You Shouldn’t Either; 349 (1995), though, refused to treat this Frank I. Michelman, Living With Judicial Betsy McCrodden, Questioning the necessarily presumed exclusion of post- Supremacy; Robert F. Nagel, Marbury v. Practice: Selected Results of the Council’s offer fees and costs as precedential, holding Madison and Modern Judicial Review; Questionnaire, 17 DISPUTE RESOLUTION that the definition of “judgment finally Michael J. Perry, Protecting Human Rights & THE INTERMEDIARY 1 (June 2003): The obtained” included the jury’s verdict as in a Democracy: What Role for the Courts?; first in a proposed series of short articles modified by “any applicable adjustments.” Mark Tushnet, New Forms of Judicial discussing issues raised by mediator That is, on the ground that the issue had Review and the Persistence of Rights—and responses to a questionnaire composed by not been before the Court in Purdy, Poole Democracy-Based Worries.

38 FALL 2003 Robert S. Peck, Tort Reform’s Threat to an directed verdict, the judgment notwith- power, free the courts from the horizontal Independent Judiciary, 33 RUTGERS L.J. standing the verdict, and the summary stare decisis effects of many precedents or 835 (2002): Peck asserts that “tort restric- judgment.” categories of precedents. The limitation on tionists” seek legislative oversight because this power is that Congress may not so juries are biased against defendants of per- G. Alan Tarr, Interpreting the Separation increase judicial discretion as to transform sonal injury actions, and judges fail to of Powers in State Constitutions, 59 judges into legislators.” restrain them. The author suggests, N.Y.U. ANNUAL SURVEY AM. L. 329 though, that when legislatures enact tort (2003): Tarr briefly explains how “textual II. Jurisprudence Beyond Our restrictions, they proceed in what amounts and philosophical” differences distinguish Borders1 to “an assault on the authority, responsibil- state and federal constitutional provisions ities, and prerogatives of the judiciary, and that affect the structure and operation of State v. Miller, 659 N.W.2d 275 (Minn. the judiciary’s partner—the jury—in the government. The author describes the fed- Ct. App. 2003): An informant alerted the exercise of judicial power, while also sub- eral law of separation of powers as “a police to drug activity at a residence. The stantially interfering with the rights of relaxed version,” which allows a blending police initiated surveillance of the home injured people seeking redress from the and sharing of powers in order to check and saw two men leave in a pickup truck. courts. As such they assume a constitution- power. In early state constitutions, on the An officer on patrol was told to stop the ally illicit supervisory authority over the other hand, the legislative power was clear- pickup if he could find any legal reason to courts.” The rejoinder that the courts owe ly predominant, and separation of powers do so. This officer pulled the pickup over, great deference to the public policy choices clauses were not designed to balance power believing that he saw a windshield severely of the legislature does not persuade Mr. among the branches of government. And cracked and, thus, obstructing the driver’s Peck: “the restriction of constitutional by the 1830’s, when the people of the vari- view. The officer used his drug-detection rights, the obliteration of the jury system, ous states began to look for ways to reign in dog, Radar, to search for the presence of the destruction of fairness in the civil jus- legislatures, they moved legislative powers drugs, and Radar indicated drugs were tice system, and the illicit arrogation of “to the people themselves, not to another present. The officer eventually located judicial power by the legislature” are not, branch of government.” Direct popular methamphetamine under the lining of the in his view, mere public policy choice with- election of governors and judges is an front passenger seat. The trial court con- in the competence of the legislature. example. The people also responded to per- cluded that the police did not have a rea- ceived legislative abuse by imposing consti- sonable, articulable suspicion of drug-relat- Laurens Walker, The Stay Seen Around the tutional restrictions on the legislative ed activity prior to conducting the search World: The Order That Stopped the Vote power: some required extraordinary of the vehicle using the drug-detection Recounting in Bush v. Gore, 18 J. LAW & majorities to pass certain legislation; some dog. The court of appeals agreed. The POLITICS 823 (2002): Professor Walker established restrictive procedural require- court noted that although the stop itself concludes that “the grant of a stay was cor- ments (e.g., the subject of a bill must be was proper because it was based on an rect according to law.” He reviews the his- reflected in its title); some imposed sub- equipment violation—the cracked wind- tory of the stay practice in cases from state stantive prohibitions on legislative action shield, the fact that the stop was lawful did courts, and its current requirements; (e.g., special or local laws; the lending of not automatically legitimize the canine responds to the dissent’s complaint that the state credit); and some limited the duration search. “The reasonableness requirement Court had not followed its rules concern- and frequency of legislative sessions. As of of the Fourth Amendment is not only con- ing judicial restraint; analyzes the relevant 1998, “forty state constitutions contained cerned with the duration of a detention, jurisdictional statute, 28 U.S.C.A. sec. express separation-of-powers require- but also with its scope . . . . A canine sniff 1257; and, finally, discusses the merits of ments.” Tarr suggests that these clauses has absolutely nothing to do with an the application for a stay, focusing on the point to functional differences between the equipment violation. Radar was not sniff- requirement of “irreparable harm.” branches of state governments, and ing the windshield to determine if it was encourage a “formalist approach to the sep- cracked; instead, he was searching for Ellen E. Sward, The Seventh Amendment aration of powers.” He concludes that drugs. Radar’s use cannot be justified by and the Alchemy of Fact and Law, 33 “American states require a distinctive sepa- the equipment violation.” The court held SETON HALL L. REV. 573 (2003): The ration-of-powers jurisprudence, one that that it is necessary to have a reasonable, author defends that “courts have moved reflects the distinctive text, history, politi- articulable suspicion of drug-related crimi- toward defining as ‘law’ some matters that cal theory, and institutional design embed- nal activity before law enforcement may would have been called ‘fact’ at the time ded in state constitutions.” conduct a dog sniff around a motor vehicle the Seventh Amendment was ratified.” She stopped for a routine equipment violation argues that “if the [US Supreme] Court is Richard W. Murphy, Separation of Powers in an attempt to detect the presence of nar- serious about using history to define law and the Horizontal Force of Precedent, 78 cotics. and fact, [as suggested in Markman v. NOTRE DAME L. REV. 1075 (2003): Westview Instruments, Inc., 517 U.S. 370 Murphy argues that “Congress could, con- Richardson v. Sara Lee Corp., 2003 Miss. (1996)] it will have to revisit the constitu- sistent with separation-of-powers princi- Lexis 270: While operating a machine tionality of the reasonable jury test, the ples and pursuant to its Sweeping Clause called a “Hyster Orderpicker,” plaintiff sus-

THE NORTH CAROLINA STATE BAR JOURNAL 39 tained an on-the-job injury. Plaintiff settled U.S.C. § 1983 or as part of an action body, designed for policy debates, and his workers’ compensation claim and then authorized by Bivens v. Six Unknown designed for constituent input. .... [T]here filed suit against the manufacturer of the Agents, 403 U.S. 388 (1971). The trial are many ways to fashion a dog bite law.” Orderpicker alleging negligent design, court granted the officers’ motion to dis- The Court concluded: “We are not insen- manufacture, and distribution of the miss on grounds that plaintiff’s complaint sitive to the plight of dog bite victims who Orderpicker. During the course of litiga- failed to state a cause of action. The court cannot prove negligence on the part of the tion, a subpoena was served upon plaintiff’s of appeals upheld the dismissals. Regarding dog’s owner and who cannot prove the employer requesting documentation con- the Bivens claim, the court explained that owner’s prior knowledge of the dog’s dan- cerning the whereabouts of the plaintiff had argued that he was entitled to gerousness. We are also mindful of the fact Orderpicker. The employer responded that damages because he was arrested without that the common law may be judicially it had disposed of the Orderpicker. probable cause when he was pepper modified under appropriate circumstances. Subsequently, plaintiff’s lawsuit was dis- sprayed and that at the time he was But for all the reasons set forth above, we missed on the basis that because the sprayed, he was merely attempting to walk will not in this case abrogate the scienter Orderpicker in question had been away from the officers. Because plaintiff element of strict liability.” destroyed, plaintiff would not be able to had pled guilty to resisting arrest, however, prove the requisite elements of his case. his claim was barred by Heck v. State v. Fisher, 789 N.E.2d 222 (Ohio Plaintiff then filed suit against his employer Humphrey, 512 U.S. 477 (1994). Heck 2003): At defendant’s criminal trial, prior alleging negligent spoliation of evidence. held that to recover damages for allegedly to the presentation of evidence, the trial The trial court dismissed this lawsuit and unconstitutional conviction or imprison- court informed the jurors that they would plaintiff appealed. The Supreme Court ment caused by actions—whose unlawful- be permitted to ask questions of the wit- declined plaintiff’s invitation to adopt and ness would render a conviction or sentence nesses that testified at trial. The trial judge recognize a tort claim against a third party invalid—a plaintiff must prove that the instructed the jurors to submit their ques- for the negligent or intentional spoliation conviction or sentence has been reversed tions in writing to the bailiff, whereupon of evidence. The Court explained the fac- on direct appeal or otherwise declared the judge and the attorneys would review tors weighing against recognizing such a invalid by a state tribunal. The court con- the questions in a sidebar conference. The claim: infringement on the rights of prop- cluded: “Under Illinois law, so long as there trial judge would then determine whether erty owners, endless litigation, and uncer- is physical resistance an officer has proba- the questions were admissible under the tainty of the fact of harm. The Court also ble cause to arrest someone who resists an rules of evidence and would read the observed that nontort remedies for spolia- arrest attempt. ... Thus, because [plain- admissible questions aloud to the witness- tion are sufficient in the vast majority of tiff’s] resisting arrest conviction has not es. At the conclusion of the trial, the jury cases. been called into question, Heck bars returned a guilty verdict on the felonious [plaintiff’s] Fourth Amendment claim.” assault charge. Defendant appealed, alleg- Case v. Milewski, 327 F.3d 564 (7th Cir. ing that the practice of allowing jurors to 2003): Plaintiff alleged that he went to a Borns v. Voss, 70 P.3d 262 (Supreme question witnesses is “inherently prejudi- golf course on a naval base with the intent Court of Wyoming, 2003): A seven-year- cial.” The Supreme Court held that “the of playing a round of golf. When the man- old girl was bitten by the defendants’ Red practice of allowing jurors to question wit- ager of the course informed plaintiff that Heeler dog, Tramp. Plaintiff alleged the nesses is a matter committed to the discre- he was not properly dressed to play because defendants had knowledge their dog was tion of the trial court.” And further: “To his shirt lacked a collar, a dispute arose. dangerous. Defendants alleged that Tramp minimize the danger of prejudice, however, Eventually, the naval base’s police respond- bit the child because she was abusing the trial courts that permit juror questioning ed. Although plaintiff voluntarily left the dog. The trial court granted summary should (1) require jurors to submit their golf shop, the officers continued to follow judgment for the defendants concluding questions to the court in writing, (2) him. They asked plaintiff for identifica- because the defendants had no prior ensure that jurors do not display or discuss tion, told him he would have to move his knowledge that their dog was vicious or a question with other jurors until the court car, bumped, shoved, and pepper sprayed possessed other dangerous propensities, the reads the question to the witness, (3) pro- him, and then arrested him. Plaintiff was defendants owed no duty to the plaintiff. vide counsel an opportunity to object to charged with disorderly conduct, assault, The Supreme Court reversed finding issues each question at sidebar or outside the and resisting arrest. The disorderly conduct of material fact. The Court also considered presence of the jury, (4) instruct jurors that and assault charges were subsequently dis- in detail Wyoming’s dog bite law and they should not draw adverse inferences missed, and plaintiff pled guilty only to whether the “one free bite” rule should be from the court’s refusal to allow certain resisting arrest. Plaintiff then filed suit abrogated. The Court ultimately declined questions, and (5) allow counsel to ask fol- against the officers alleging that the officers to abrogate the scienter element of com- lowup questions of the witnesses.” violated his Fourth and Fifth Amendment mon law strict liability in dog bite cases, rights by seizing him without probable noting that: “it would be better for the Endnote cause and depriving him of freedom of matter to be addressed by the legislature, 1. These are recent cases from other jurisdictions that movement. Plaintiff argued that he could just as it has been in many other states. The address issues of possible interest to North Carolina attorneys. sue the officers pursuant to either 42 legislature is a deliberative representative

40 FALL 2003