Equal Justice?
Excerpt from the oath taken by new members upon admission into the Bar:

“I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.”

A Miami-Dade County Circuit Court judge once said: “Remember, your reputation as an attorney is established as much by the clients and causes you choose to represent as it is by your legal skills.”

Doing exhaustive legal research and creating brilliant legal arguments is facilitated by generous funding from clients. Good reputations are built that way.

Far more than 50 percent of our citizenry cannot afford equal justice. Most have difficulty paying modest attorneys’ fees and minimal court costs. Justice may mean that opposing parties are equally impoverished. But our system of justice is economically unequal and unjust to a greater or lesser degree.

Over time the judiciary has suffered attacks from political demagogues. Lawyers as gatekeepers to the courts have been under unyielding assault and ridicule for decades. All of this undermines the third branch of government.

This morning I mentioned to a court bailiff that the clerk’s office was badly underfunded; that hard copies of pleadings were stacked on the floor, not filed in the hard copy case files for a year or more. He said the problem was felt in the judge’s chambers. I said taxpayers do not fund the third branch of government.

The law library in the Miami-Dade County Courthouse is financed through private subscriptions. Public servants are willing to let the primary law library in the county open to the public, rich and poor alike, be closed.

Now, even rich lawyers and rich clients have to worry about access to, and the quality of, our system of justice.

The public is apathetic, showing no outrage over justice denied. Why should they? A good reputation depends upon carefully choosing clients who are neither defenseless nor oppressed.

Gary D. Malfeld
Miami

Mr. Orange and Blue
I was pleased to see my fellow University of Florida law school classmate, Richard Johnston, recognized for his many years of school spirit as “Mr. Orange and Blue” in the October 15 News. He has become my generation’s “Mr. 2-Bits.”

I first became aware of Richard during the 1979 football season. He was, without a doubt, the loudest and most spirited law school student at Gator football games and the only law school student wearing a gator-head hat. His behavior and attire were pretty brave for that winless season when there wasn’t much to cheer about (except when we hit Bear Bryant with our Coke cup lids thrown like Frisbees between the third and fourth quarters).

I was not surprised to learn later that season that Richard had been a cheerleader as an undergraduate. The next season, I was surprised when Richard was absent from the football stands; he was on the field as a cheerleader. Now, I am not surprised that he has continued to lead cheers over the years.

Richard’s enthusiasm is one of the things that makes it great to be a Florida Gator.

Thomas H. McDonald
Orlando

The Best Minds
First, I read Mr. Luis A. Fors’ letter in the October 1 News bemoaning work being taken away from lawyers, then came upon what Justice Scalia recently opined in a June interview with C-SPAN, published in the Wall Street Journal:

“Well, you know, two chiefs ago, Chief Justice Burger used to complain about the low quality of counsel. I used to have just the opposite reaction. I used to be disappointed that so many of the best minds in the country were being devoted to this enterprise.

“I mean there’d be a, you know, a defense or public defender from Podunk, you know, and this woman is really brilliant, you know. Why isn’t she out inventing the automobile or, you know, doing something productive for this society?

“I mean lawyers, after all, don’t produce anything. They enable other people to produce and to go on with their lives efficiently and in an atmosphere of freedom. That’s important, but it doesn’t put food on the table and there have to be other people who are doing that. And I worry that we are devoting too many of our very best minds to this enterprise.

“And they appear here in the Court, I mean, even the ones who will only argue here once and will never come again. I’m usually impressed with how good they are. Sometimes you get one who’s not so good. But, no, by and large I don’t have any complaint about the quality of counsel, except maybe we’re wasting some of our best minds.”

Perhaps Mr. Fors is one of those best minds trying too hard to hang onto practicing law. After a law stint, many of us decided to move on and are glad we did.

Ken Leffler
New Smyrna Beach

Gay Adoption
Mr. George L. Metcalfe’s most recent pronouncement against gay adoption in the October 15 News cites the Bible, and more specifically Leviticus, as authority for his vehement anti-gay views. He also purports to be a social scientist with knowledge of the cause and effect of child-rearing in households with “gender disorientation pathology” (whatever that is), but that is a different problem.

Leviticus, read literally, justifies the use of slavery and the killing of adulterers. Leviticus also prohibits the practices of harnessing a horse and an ass together, or the creation of garments made of mixed fabrics (among other inanities). Mr. Metcalfe does not make his position on those issues known, but assuming he believes all components of the Bible should be literally imposed, he should at least be consistent. Incidentally, that same Bible was used to convict Galileo of heresy for daring to state that the Earth revolves around the sun, burn witches, et cetera.

Fortunately, the Constitution prohibits enactment of the Christian equivalent of a Biblical Taliban. The Earth does, in fact, revolve around the sun. Gays can (and do) make good parents.

Jonathan S. Coleman
Tampa

Pro Bono
I read with interest the October 1 article “Pro Bono Challenge: Take one case.”

As a personal injury lawyer, I routinely not only discount my fees, especially when we are faced with severe injuries and low limits, but there are times when I have charged no fee whatsoever.

However, The Florida Bar has not recognized my conduct as pro bono work and, therefore, I pay $350 a year to our legal aid organization.

At this stage in my career, I do not think I am competent to handle family law issues nor real estate matters, and even though The Florida Bar may not think so, I know in my heart that I routinely conduct pro bono work for my clients.

Terence A. Gross
Pensacola

Death Penalty
The October 1 story, “Panel: Death penalty needs fixing,” echoed the chorus of learned voices expressing the opinion that it is time to repeal or enact a moratorium of the death penalty in Florida.

It has been three years since the release of the ABA’s Florida Death Penalty Assessment Report, yet the Legislature has taken no action to discuss, much less implement, any of its suggested reforms. Every member of the diverse group of lawyers, judges, legal scholars, and individuals intimately familiar with the mechanism of death sentences who assembled for the forum expressed the same sentiment: It is time to put a halt to executions in Florida.

The death penalty in the U.S. has become increasingly unwieldy. In most states, executions are rare; the delay between sentencing and executions has lengthened; and the costs of implementing the death penalty have grown considerably. Enforcing the death penalty costs Florida $51 million a year above what it would cost to punish first-degree murderers with life in prison without parole. The public and the families of victims have a right to be frustrated with this system. The truth of the matter is that with all of the additional effort put forth and money allocated, death penalty cases are still prone to error. There is simply no way to ensure that innocent lives are protected — especially when lawmakers are seeking ways to reduce costs and shorten delays.

Since the reinstatement of the death penalty in 1972, 138 people have been freed from death row after their convictions were reversed. It has become a recurring story in the media when men and women are released from death sentences after their innocence has been established by dedicated attorneys, law students, and the media. If one innocent person is robbed of his or her life by government sanctioned murder, it should be more than enough for each one of us to recognize that the death penalty is morally repugnant.

The Florida Association of Criminal Defense Lawyers strongly urges the Legislature and Gov. Crist to follow the courageous lead of New Mexico Gov. Bill Richardson, and the governors and legislatures of Ohio, Illinois, Maryland, New Jersey, and New York, and pass a law abolishing the death penalty. At a minimum a moratorium should be instituted and a legislative committee convened to examine the flaws in Florida’s mechanism of death. Whether the analysis is based on morality, ethics, or economics, the conclusion remains the same.

Paula S. Saunders
President, Florida Association of Criminal Defense Lawyers

Barry M. Wax
Chair, Death Penalty Committee, FACDL

_________________________

I was taken by Lee Atkinson’s letter, in the October 15 News regarding the death penalty. Particularly, one must wonder at the proposition that a killing in mistaken self-defense is the equivalent of a mistaken application of the death penalty.

The former, although regrettable, is the result of an individual decision made necessarily in haste on the basis of facts perceived in an instant. The latter is the culmination of a lengthy and unhurried deliberative process that leads to a mistaken killing as the act of the entire society. There is a significant and obvious qualitative difference between these mistakes to the society, even if not to the deceased.

I am not intrinsically opposed to the death penalty where we know it is absolutely justified. I was not moved by the death of John Spenkelink and celebrated that of Ted Bundy. However, there are two factors that, combined, should make anyone support abolition. First is the substantial likelihood of erroneous conviction. The Innocence Project has conclusively exonerated 10 Florida convicts in the last nine or so years, four of them convicted of murder, and we have currently 387 people on death row.

These are not reprosecutions dropped due to deterioration of the “prosecutability” of the case over time, but innocent people convicted. Given the gravity of the consequences of a mistake, these are rather poor odds.
 
Bob Hustead
Everglades City

Promoting the General Welfare
I have a question about Stephen Schoeman’s letter to the editor in the October 15 issue: Say what? Mr. Schoeman might remember that the fellows who wrote the document in question did not have “universal health insurance, Medicare, Medicaid [or] Social Security.” Their ideas of environmental protection were virtually nonexistent, and usually meant displacing Indian populations, cutting down trees, and planting as much as they could (yes, even tobacco!). Consumer rights were summed up in one Latin phrase, caveat emptor. And civil rights included enslaving hundreds of thousands, soon to be millions, of people. And yet, I dare say, they were decent men, and quite concerned with the general welfare of the new nation.

Now, I’m not saying that there has not been a moral and ethical evolution that has taken place since the founders wrote those words, and which has molded, often for the better, a new nation. One that I’m fairly certain the founders would not recognize.

But I dare say that we would all not agree on what the words in the preamble mean, and what is best for the “general welfare,” or indeed what steps should be taken to “promote the general welfare.” The founders themselves were not in total agreement either.

All I’m saying is that I would not be ashamed of defending companies that have been “alleged” to have polluted the environment, or made cigarettes that “allegedly” kill, or have been charged with discriminating against women, or anybody else for that matter. As lawyers, that’s kind of what we do.

In fact, I don’t agree with Mr. Schoeman’s description of what is in the “best interests of society” at all.

Raul A. Cuervo
Washington, D.C.