This is THE most common question lay people ask lawyers. Until I began living an unconventional life, not in conformity with the the expectations of my community, I used to give a mostly abstract answer to this question. Now I understand the problem in an urgent, existential way which I didn't before.
If you've been following the Comments to my recent blog post about why I am nasty to people who are nasty to me, you will have read a number of Comments from people who think I should be locked up at the local state mental hospital. Some of these people have predicted my probable fate is to wind up hanging from a rope above a kicked-away stool or lying in a back alley, dead from a bloody beating. Without "proper" medication or other unspecified "help," these fortune-tellers are cock-sure I am destined to an early demise. I have been called psychotic, grandiose, narcissistic, and other less clinical names.
If a vote could be taken in Middletown of people who knew me then and know what I'm doing now, I would not be surprised if a majority would like to see me locked away in a ward for the mentally ill at Connecticut Valley Hospital, which is only a few miles east of where I'm sitting writing at this moment. The motives of these voters would vary from true concern for my well-being and the happiness of my wife and children on the bright side to anger, hostility, jealousy, and envy on the dark side. For purposes of my analysis, it matters not what the motive is, just that the majority probably would like to see me forcibly treated psychiatrically with in-patient treatment in a mental health facility.
It matters not to them that I have fully discussed on my blog that I saw Dr. Allan Jacobs, M.D., of West Hartford, a psychiatrist, from September, 2010 until July, 2011 for medical management of psychotropic medication during my severe, suicidal depression and subsequent recovery. And I have repeatedly revealed that I continue to see my psycho-therapist, Raymond Oakes, of Essex, a clinical social worker and very experienced therapist, weekly, from September, 2010 until the present and I have no plans to ever stop seeing him. I have also explained that one reason I go for therapy is to hold my feet to the fire to continue to make big changes in my life rather than remain complacent or get stuck in a rut. I don't feel I need therapy, because I no longer have a mood disorder, as I did when I was depressed, but I do want the benefit of the self-awareness which therapy can bring and the functional benefit of life-change motivation which I also get out of it.
I don't think any of the allegedly well-meaning Commenters on my blog have ever asked me what Dr. Jacobs or Ray Oakes think about whether I "need" any treatment other than what I've sought voluntarily. Dr. Jacobs is on my email list of people who get notice of new "Bobs blog" posts. The only response I've gotten from Dr. Jacobs is last summer when he briefly stated he was happy I was doing things in life which made me happy. Ray Oakes has not told me he thinks I "need" any other treatment.
Last spring, in my former men's group at my old church, the Jacob Group, when several of my old friends aggressively informed me I "needed" to be on mood stabilizers or other "appropriate" psychiatric treatment during one Tuesday afternoon session, one of them suggested that a man in the group who is a psychologist contact Dr. Jacobs and Ray Oakes to make sure they knew how I was acting. My immediate reaction was to invite the entire Jacob Group to my next sessions with Dr. Jacobs and Ray Oakes. I emailed Dr. Jacobs about this and he said he didn't think that would be particularly helpful. I don't have Ray Oakes' email address, but I told him of my offer and he said he didn't think it would be helpful to him either. My offer to the Jacob Group totally killed their enthusiasm for being in touch with either Dr. Jacobs or Ray Oakes.
What does any of this have to do with defending a guilty person? Here's the connection.
Lawyers who defend guilty people are really defending, enforcing, and upholding the United States Constitution and the constitution of whatever state is prosecuting the defendant. My friend Jerimiah Donovan did not think it was good for his client, Joshua Komarjevsky to rape and kill Dr. Petit's wife and daughters. But Jerimiah did believe, with every fiber of his being, that it was a good, really essential, thing to stand up for Joshua's constitutional rights to due process of the law. Many of the Commenters on the website of The Hartford Courant could not understand why a jury trial was necessary in the Petit Home Invasion Case. The defendants should have been summarily executed without due process of law.
Why are those vigilantes dead wrong? For starters, unless lawyers protect the constitutional rights of guilty people, those rights may not be available to protect and vindicate innocent people who are wrongly charged with a crime they didn't commit. Russia and China have written contitutions which confer various rights on their citizens. But Russian journalists who expose corruption are sometimes found murdered in alleys. And Chinese lawyers who boldly stick up for their clients are sometimes jailed.
If lawyers don't stand up for the constitution, even for the guilty, the constitution may not be there to protect the innocent when they need it. And that means you and me and everyone else.
But, you may say, you're a law-abiding citizen. You don't commit crimes. Why should you care?
Part of me used to feel the same way. But I don't feel that way now. Why's that? Let me explain.
In yesterday's New York Times, a letter writer, David Raines, pointed out that the French philosopher, Alexis de Tocqueville, called a community's power to enforce conformism "the tyranny of the majority." This, Mr. Raines wrote, "gives us all more personal freedom. But at the same time, we are biologically programmed to see those like ourselves as allies and those different from ourselves as competitors, if not enemies. The end of conformism has left us uncomfortable with our social environment, with our fellow citizens." Mr. Raines was commenting about a new book about the class divide in America by Charles Murray, not constitutional rights, but those sentences flipped a switch in my mind and led me to write the present blog piece.
I do think a fair interpretation of a least some of the people who don't like the way I'm living my life now is this. They see me, as Mr. Raines wrote, as a competitor, if not an enemy. They are uncomfortable with me, their fellow citizen, who once conformed to their standards of what's appropriate for a retired lawyer, husband, father, and friend, and what's not acceptable. And that's the precise point where my life, as I wish to lead it, and the constitution come into play.
In Victorian times, according to a biography I read a long time ago of Sigmund Freud, young women who were thought to be sexually promiscuous could be involuntarily committed to what were then called insane asylums for psychiatric treatment, barbaric as it mostly was in those days. These young women were classified as "morally insane." Imagine if such legal processes were in use today. How many sexually-active young women would be involuntarily committed to the local state mental hospital for "treatment" of their "sexual promiscuity disorder"? Don't think this is an academic matter. In other cultures, women of any age are stoned or worse for all kinds of behavior which in our society would might elicit a yawn, a roll of the eyes, or no reaction. Think Saudi Arabia and Pakistan, to take just two examples. If you haven't been living on Mars the past few years, you know what sorts of cases in those societies I'm talking about.
What prevents a family from having their promiscuous daughter involuntarily hospitalized at the state mental hospital for forced psychiatric care, to restore her to a chaste and virtuous lifestyle? The United States Constitution.
Our mental hospitals used to be full of people who were not a genuine danger to their own physical well-being or the physical well-being of others. Many there were who were hospitalized because they "acted strangely" or did not "conform" to "appropriate" standards of behavior. This all changed in the 1960's as the psychiatric community began to re-think who should be forced to get psychatric care. Eventually, the United States Supreme Court held that a person could only be forced to get involuntary treatment if he were a demonstrable and substantial danger to himself or to others. Mere unconventionality was not sufficient to put the white strait-jacket on a person. And such treatment was held to be appropriate only for people whom a psychiatrist testified under oath needed such treatment.
Which brings me back to my situation. If I, or anyone else, commits a crime, the police can arrest me or anybody else. Then a prosecutor, who is a lawyer, decides whether to continue the prosecution or drop the case. This happened to me at the KKK (Koji Komedy Klub) in New Haven. I've written about the case, extensively, on my "Bobs blog." The prosecutor eventually asked me for permission to drop the charge; had I objected, I could have demanded either a trial on the charge or an immediate dismissal (acquittal) of the charge. I agreed to the dropping of the charge because I saw no advantage in being tough with the prosecutor at that point. His decision to drop the charge was a vindication of my position that the KKK permittee wrongfully called the police and the police wrongfully arrested me However, I'm just glad the prosecutor agree that while I look and act unconventionally, I did not commit a crime.
Similarly, I know that anyone seeking to involuntarily committ me to the state mental hospital would be hard-pressed to find a psychiatrist willing to testify, and maintain his position under cross-exmination, once he talked to me, that I am a danger to myself or others. The mere fact that I take risks which others don't take is not enough to committ me or anybody else. Plenty of conforming people take all kinds of risks, without being locket up on a mental ward. Think NASACAR drivers, professional football players, sky divers, climbers of Mt. Everest (50% of whom die in the process according to Jon Krakauer's book, "Into Thin Air").
Ellin Sacks, a USC law professor, wrote an interesting book called "Refusing Care," with a well-thought-out and presented discussion of whom we should force to get care and whom to just leave alone. Professor Sacks reports in the book that when she was a student at Yale Law School, she was hospitalized at Yale-New Haven Hospital at least twice for acute schizophrenia, involuntarily, for treatment with medications.
Even if a "hired-gun" psychiatrist gave the requisite testimony to put me away in a locked ward, I am certain that Dr. Jacobs and Ray Oakes would testify that I am a bit eccentric now, by the conventional standards of "polite" society, but not a danger to myself or others. Knowing how probate judges, who make these initial calls about committment petitions, think about such matters, along with judges and appellate judges, I am quite certain the judicial system would not be an accessory to an involuntary stay for me at the local mental hospital.
Gadfly, royal pain in the ass, non-conformist, needs a haircut and a shave: all these can fairly be said of me. Call me the Crazy Old Dancin' Dude if you will. But I'll never agree to be locked up in a mental hospital. Think of one big problem with that scenario. I'd drive all the psychiatrists and nurses CRAZY, and THEY'D commit themselves, just to get away from me.
Vive la Constitution!!!!!
Thanks for reading. Please put any of your questions or Comments in the window below.