The life of a criminal defense attorney is not glamorous.

Typically, it’s far from it.

We are derided by society for simply existing. When we take on socially controversial cases or causes or category of accused, we become the embodiment of that case or cause or that category and frequently become the focal point of all related and unrelated criticism surrounding the particulars. We frequently face impossible odds in a system that has seldom even has the veneer of justice that does lip-service to the principles that are enshrined in the Constitution and has been protected by the blood of patriots for over 200 years such as the presumption of innocence and the burden of proof. Judges, who are frequently anything other than neutral and detached, see their job as political and to become the masters of expedience where pressure is put on the innocent or incorrectly charged to plead, plead, plead. The jury pool is frequently tainted by prosecution-biased media. Jurors are apathetic, unengaged and anything but the final protection for their fellow man against the unfettered power of the leviathan.

One of the very best summaries of the difference between the vision of the Founding Fathers and what we live  in today is the last big speech of William Kunstler. I believe this words to be so very true:

Perhaps the best way to describe this breakdown of ethical concepts in this country is a history of the attempts to establish some form of ethos in this country.

As you know, the American Revolution was not a revolution engineered by poor people or by people who sold rats for a penny a pound down on the Long Wharf in Boston. It was engineered by the wealthy who wanted to transfer the power of wealth from London to New York, Philadelphia, and Boston. The people who fought it were those people who sold rats on the Long Wharf–the tinsmiths, the blacksmiths, and so on. But those who gained the most from it were the wealthy, the slave owners.

They met in Philadelphia in 1787. They met at what’s called Independence Hall, designed by a very famous lawyer, Andrew Hamilton, who defended John Peter Zenger in that famous freedom of speech trial in 1735 in New York. They blacked out the windows with paint so that no one would know they were going to violate their orders from those who sent them there by writing a new constitution and not reforming the Articles of Confederation, which was why they had been sent to Philadelphia. They were so afraid that people would find out what they were doing that they had Benjamin Franklin followed home every night and then followed from his lodgings to Independence Hall, because old Ben liked to tip a glass or two at the local tavern and they were afraid that he would give away the story before it was ready to be given away. They worked all summer and they evolved this document.

The document is fine. It sets up a tripartite form of government, and so on, but it says nothing about human rights whatsoever. And while they were talking about the supremacy clause in that document, somebody stood up and said, “How about a bill of rights?” This man was George Mason of Virginia. They voted on it. They voted twelve to one against a bill of rights. The only one that didn’t vote against it was, strangely enough, North Carolina. I guess those delegates from North Carolina would be very surprised to see that the man who sits in the United States Senate from that state today is Jesse Helms. They voted again. Again, twelve to one against a bill of rights.

And so, Mason left the convention, joined by John Randolph of Virginia and Elbridge Gerry of Massachusetts. The Constitution went out for ratification and they were so afraid that it would not be ratified that they made a two-thirds vote the ratification number, rather than unanimous. Five states immediately ratified–Georgia and Connecticut among them. But the big states of Virginia, New York, and Massachusetts did not ratify immediately. In fact, as you know, the Federalist Papers were created by Hamilton and Jay and Madison to try to sell the Constitution to the New York ratifying convention. Finally, Massachusetts–meeting in the Long Wharf in Boston and led by Elbridge Gerry–had an idea: Massachusetts will ratify if you agree to have a bill of rights in the first congress. There was agreement on that score and the three big states voted narrowly–three votes in New York and ten in Virginia–and the Constitution became law.

There was an election, George Washington and John Adams were elected president and vice president, and a congress was elected. It met in Federal Hall (still standing in New York) in 1791 and there was a vote on a bill of rights. After thrashing it out for months, they finally got a bill of rights.

The Senate voted that it should not be binding on the states; the House voted that it should be binding on the states. The Senate won. It took six hundred thousand lives between 1861 and 1865 to begin to make the Bill of Rights binding on the states. It went out for ratification. Virginia ratified on December 15 of that year, and that became the anniversary year of the Bill of Rights.

It had twelve amendments. The first two were meaningless for present purposes; they were never voted in. They had to do with salaries for representatives and senators. You can see what was on their mind with reference to what came first. The third, Freedom of Speech became the First, and so on.

And this great ideal of the Revolution, theoretically at least, became the Bill of Rights. We were the first nation on Earth to have crystallized human rights in a document that was binding at least on the Federal government.

And, yet, over the years it has been demolished amendment by amendment by amendment. One after the other, you’ve had these terrible onslaughts, until today, the Contract With America–as you know the lunatics are running the asylum these days–the Contract With America takes out of the Bill of Rights the Fourth Amendment entirely. It consecrates all searches and seizures, whether there is or isn’t a warrant, with the phrase, “if the constable believes that he or she was acting constitutionally.” That obviates the application of the Fourth Amendment.

The Fifth Amendment with its due process of law: this execution in Alabama yesterday of an insane man who did not even know he was being executed will show you how far the inroads go into the Fifth Amendment. You also know that they are executing fifteen- and sixteen-year-olds and they are going to work on fourteen-year-olds very shortly. We have become the charnel house of the Western world with reference to executions; the next closest to us is the Republic of South Africa. We are the only nation in the western world to have capital punishment today. All of western Europe has abolished it.

On the Sixth Amendment: we have taken lawyers away from their clients. Just witness John Gotti losing his lawyer, Bruce Cutler, on the eve of trial. We’ve utilized all sorts of devices to neutralize lawyers across the country, such as contempt citations and Rule 11 of the Federal Rules of Civil Procedure, which gives them the right to penalize lawyers, fine them, if some judge says the civil rights action you brought should not have been brought. I stand before you, the recipient of a $125,000 fine; the head of the NAACP legal defense fund, $40,000; the Christic Institute, a Roman Catholic civil rights legal and educational foundation–one million dollars and out of business today.

I could go through all the amendments, one by one and you would see how the First has been whittled down. Doctors, for example, not permitted to tell patients who are before them of the option of abortion.

The Second Amendment is very lively, of course. The only ones who subscribe to it are members of the National Rifle Association. So, it is of small importance to us, except they only read the gun part of it–”all citizens shall be entitled to bear arms,” and they don’t read at all the part saying those citizens should be in “a well-regulated militia.” But that’s not one of the Bill of Rights that gives any meaning today to us.

The Third doesn’t either. That’s about quartering troops in private homes. I don’t think any of you have troops quartered in private homes, unless it be your sons and daughters occasionally home from the post.

The Fourth Amendment was so vital to the colonists, because, you will remember, the King of England issued what were called writs of assistance–open-ended search warrants. They lasted as long as the king lived, and all the constable had to do was fill in the name. There was a famous case in Boston in the 1760′s where James Otis, a fiery lawyer, defended sixty-eight ministers to try to end writs of assistance. John Adams was a young lawyer in that courtroom, and when he heard Otis address the court, he said, “Then and there was the child independence born in that courtroom.” In any event, it was so important to them they enacted the Fourth Amendment: no unreasonable searches and seizures. But now, it has been dribbled away, bit by bit.

The Fifth Amendment, I’ve already mentioned–due process.

The Sixth Amendment, right to counsel. I’ve already hinted at it, and this is not a law school class, so we don’t have to go into all the details.
The Seventh doesn’t mean anything to you. It has to do with juries and civil trials.

The Eighth is the Amendment that talks about unreasonable penalties, bail, and so on. We’ve completely eliminated that. Our penalties are draconian, from the death penalty to sentences of life imprisonment for possession of cocaine, for example, and the famous “three strikes and you’re out” concept of the Contract With America. And bail has gone out the window. We have a new statute from 1984, one of Reagan’s little droppings, that says essentially that the judge can deny you bail in bailable cases if the judge comes to the conclusion you are a risk to flee or you are essentially a danger to the community. But it is not decided on ‘beyond a reasonable doubt’ or even on ‘probable cause.’ The statute says clear and convincing evidence and no one knows quite what that means.

We also have anonymous juries now, as you know–that would probably come under the Fifth Amendment or the Sixth Amendment–where the jurors have numbers instead of names. I tried a case in New York some years ago where juror 318 took the stand to be questioned, a white woman. My co-counsel leaned over to me and said, “Bill, Is 318 a Jewish name?” Because you cannot tell anything except from physical characteristics of the identity of the jurors, whether they are Italian, French, German extraction, Scandinavian, or what have you. Because you don’t have the names.

I also throw into the Bill of Rights the Thirteenth, Fourteenth, and Fifteenth, Amendments, which are the great Civil War Amendments. The attacks on affirmative action and so on are gradually destroying them as well.

We’ve come to the point, I guess, where we fear so much–crime in the streets, bombings, domestic terrorism, and the like–that we are virtually willing to countenance giving up of rights because we think it will safeguard us in our daily lives, particularly in the urban centers of this country. We are succumbing, in a way, and I don’t make the analogy too close, to what the German people did when the Third Reich began to plant its foot on human rights in Germany. It was better to have a strong man; it was better to curtail rights, to be safe from the Bolsheviks, to be safe from the Versailles Treaty, and so on. And they gave in to that fear, and fear is the most dangerous quotient in any community, democratic or otherwise. Once fear takes root, then people will say, “What does it matter really if he didn’t get his Fifth, or Fourth, or Sixth or Eighth Amendment rights? That doesn’t affect me. I’m not on trial for anything; I’m not in jail. What does it matter? That’s the question Pastor Niemoller faced, when he said, “They first came for the Jews and I did not raise my voice, and then they came for me.”

It’s a hard question. Politicians pander to that fear. They talk about getting tough on crime, more executions, more prisons, prisons that would put the Marquis de Sade to shame. They thrive and get re-elected on that score and the public duly applauds: “We’ve got a man, a woman in there who’s tough on crime, ergo, let’s follow whatever he or she says. Let’s put the elected stamp of approval on the trampling of the Bill of Rights.”

Last night I watched Judge Ito cry on television when he attended an anniversary meeting of the time when Japanese-American citizens of this country were snatched from their homes and put in concentration camps, their property confiscated for the sole reason that they were Nisei, American citizens of Japanese ancestry. And that was countenanced by a supine Supreme Court as being perfectly valid and constitutional. Slavery was countenanced by another supine supreme court as being perfectly constitutional. Segregation of the races after the civil war was countenanced as being perfectly constitutional. So we have these terrible lapses, because the ethics, the ethos, somehow vanishes in the exigencies of the moment, the perceived exigencies of the moment.

Every generation has its time to struggle. There are no green pastures.

Jefferson warned against this when he said if anyone really starts to trample on the Bill of Rights, we ought to throw over the traces once more. Not quite his language, but the gist of it was there. He also said “I tremble for my country when I think that God is just.” No sooner had the ink dried on the Bill of Rights when John Adams became president, succeeding George Washington. Then we had the Alien and Sedition laws, as evil a set of statutes against civil rights and human rights as ever been enacted in this country. President Lincoln suspended the Writ of Habeas Corpus. The know-nothings take control from time to time. All sorts of things are done that show how weak and fragile this Bill of Rights is.

Last night I watched Judge Ito cry on television when he attended an anniversary meeting of the time when Japanese-American citizens of this country were snatched from their homes and put in concentration camps, their property confiscated for the sole reason that they were Nisei, American citizens of Japanese ancestry. And that was countenanced by a supine Supreme Court as being perfectly valid and constitutional. Slavery was countenanced by another supine supreme court as being perfectly constitutional. Segregation of the races after the civil war was countenanced as being perfectly constitutional. So we have these terrible lapses, because the ethics, the ethos, somehow vanishes in the exigencies of the moment, the perceived exigencies of the moment.

Every generation has its time to struggle. There are no green pastures.

What makes it worse is within our own ranks, there has developed a sickening culture of the quasi-professional talking heads. As a group of colleagues we allow and perhaps even foster this culture of the “talking head” commentators on television and in the broader media who take to the airwaves and criticize the abilities of our fellow defenders of liberty. Too frequently, those talking heads and related folks presume incompetence of counsel when they are seldom fully informed and even dreadfully ignorant.

Why would anyone in this day and age ever want to be a criminal defense lawyer?

It takes courage. It takes strength. It takes personal integrity. All of these need to be the driving force in all criminal defense attorneys.

If, we want the definition of courage and personal integrity above all else, I would offer this scene to you:

Imagine this scene.

Judge Julius Hoffman had Bobby Seale bound shackled and gagged in his own trial where he was acting pro se (in defense of himself) as part of the 1968 Democratic National Convention trial (the Chicago 7 trial).

William M. Kunstler: “Your Honor, when are we going to stop this medieval torture that is going on in this courtroom? This man wants to defend himself. Your Honor, this is an unholy disgrace to the law that is going on in this courtroom.”

Judge Hoffman: “When you begin to keep your word around here that you gave to the Court perhaps things can be done.”

Kunstler: “I just feel so utterly ashamed, Your Honor, to be an American lawyer at this moment.”

Judge Hoffman: “You should be ashamed-“

Kunstler: “I know I should be! And I am!”

Later on…

Kuntsler: “Your Honor, I have the right to stand here and talk about the defense of a client.”

Judge Hoffman: “I asked you to sit down.”

Kunstler: “Your Honor, I think the Marshal is going to have to this time put me in my seat. I am not going to sit down unless I am forced to sit down.”

Judge Hoffman: “I have had enough of your insults this morning.”

Kunstler: “Your Honor, I am not being insulting.”

Judge Hoffman: “You sit down sir or we’ll…”

Kunstler: “What?”

Judge Hoffman: “arrange to have you put down.”

Abbie Hoffman (one of the 7 accused): “You’re going to gag the lawyers too?”

Thereafter, William Kunstler who had literally stood up for what was right and refused to sit down to the government and the abusive system was sentenced to 40+ months for contempt of court. The conviction was later overturned. This is a remarkable profile of courage and personal integrity.

Not every criminal defense attorney is called upon to be “radical,” but every criminal defense attorney is called upon every day to stand up against wrong. I used to openly wonder (and to a degree I still do) that if called upon would I have the courage to take on such an opponent as the full strength of our federal and state government as William Kunstler did on a frequent basis. I would like to think I would. But I wonder if I would recognize it when it comes? Sometimes the greatest opportunity to exercise courage might not be on a big issue, but in every day overall small scale issues that are instead a big issue to the particular person accused.

I would commend to you all to view and then own “William Kunstler: Disturbing the Universe.”