Memoir excerpt on Judge Bazelon’s courtroom practices and historical court cases

4.2.12 WC: 191694 Subsequently, I later learned a series of related lessons that parallel the above: even when there is a firm basis for reversal, a bad job of lawyering will not bring it about in most cases; a court that is determined to affirm a conviction—because they don’t like the defendant or for some ideological reason—will not be convinced even by the most compelling arguments and the most egregious record; without hard work, many of the most persuasive reasons for reversal are never uncovered. I learned these lessons later, because in Judge Bazelon’s court, the judge and the law clerks often did the jobs that the lawyers were supposed to do. Not in the case of Daniel Jackson Oliver Wendell Holmes Morgan, because his lawyer, Monroe Freedman, had done all the hard work and made all the plausible arguments. Eventually Freedman and I became friends and colleagues, and he went on to become Dean of Hofstra Law School and one of the nation’s leading experts in legal ethics. I tried to follow in his large footsteps but I’m not sure I ever made as good an oral argument as he did in the Morgan case. It was quite a way to begin my career as a law clerk. The remaining cases during my year were in many ways representative of the Supreme Court’s future docket during the haydays of the Warren Court. Many dealt with the rights of indigent defendants—an issue that came to the fore in the Supreme Court’s decision in Gideon versus Weinright, decided toward the end of the year of my Bazelon clerkship. That decision ruled that every indigent criminal defendant in a serious case had the right to appointed counsel. The opinions of Judge Bazelon over the years had the laid the foundation for this decision and several of them were cited in the briefs filed by his friends Abe Fortas and Abe Krash, who had been appointed to Represent Gideon. (My friend John Hart Ely was working for the Fortas firm during the summer the briefs were being prepared and I reviewed and edited several drafts with John.) Bazelon’s opinions—more often dissents than majority—had established the conceptual framework for a broad-based claim of equality in the criminal justice system. He had gone considerably further than the Supreme Court would ever go in seeking to assure that indigent defendants were treated no differently from wealthy ones. Many of the cases my year dealt with this issue. Other cases dealt with the pervasive problem of police perjury—today it’s called “testilying”!°—especially in the context of searches and interrogations. Ifa search or interrogation is found to be unconstitutional, its fruits are generally excluded, even if they would conclusively prove the defendant’s guilt. Not surprisingly, many police officers (as well as prosecutors) hate these “exclusionary rules” and do whatever they can to circumvent them. Some policemen even resort to perjury, occasionally assisted by prosecutors in making their “testilies” fit the law. I was shocked when Judge Bazelon first told me about this phenomenon. We didn’t learn about this dark side of the law at Yale, and at first I was skeptical. But then when I read case after case in which police officer—often the same ones from the same drug unit—would give essentially the same scripted testimony, I began to believe it. Bazelon had no patience for testilyers, for the prosecutors who coached them, or for trial judges who pretended to believe their obvious lies. He would call them on it, much to the chagrin of See Reasonable Doubts, Best Defense 56 HOUSE_OVERSIGHT_017143