Was Suspension of Miranda After Boston Bombings Appropriate?

Gary Stuart speaks on Miranda rights.

How central is Miranda to our constellation of rights? When and how would we ever agree it would be acceptable to abrogate the rights gathered under the Miranda rubric?

That issue never arises on the easy cases, of course. In the workaday world, every police officer in the United States knows that the reading of the Miranda rights is an essential part of their role.

Arrests following a terror attack are not the easy cases.

That’s what we saw after the arrest of a suspect in the bombings at the Boston Marathon. The federal government announced that it was interrogating the suspect in advance of reading his rights.

We’ve understood for years that there may be emergencies that militate toward questioning-before-rights. For instance, if officials believed there could be timed explosive devices secreted around the city, they arguably should begin questioning immediately. Time will help explain if that is the situation that faced officials.

This Sunday, Gary Stuart examined the uneasy choices we make when we set aside basic rights. Gary is an experienced lawyer and author of “Miranda: The Story of America’s Right To Remain Silent.”

In his Arizona Republic op-ed, he traces the history of Miranda and subsequent rulings that have carved out exceptions to the rights.

Cagily, he leaves his powerful conclusion for the last three paragraphs. In case you are as impatient as I am, here they are:

“We should be wary about doctrinaire Miranda compliance in terrorist cases, especially where the public safety is at risk—as the Boston Marathon bombing clearly was.”

“Even so, balancing too far in favor of gathering intelligence by minimizing suspects’ rights might reverse five decades of Miranda application. While we want to win the war on terrorism, it cannot come at the price of returning to the bad old days before Miranda, when law enforcement was silent on the rights of suspects.”

“If law enforcement is silent and suspects are not, we might advance the war. But if domestic suspects have no rights, especially in terrorist cases, then those seeking to destroy democracy itself and replace it with a radically fundamental theocracy will have obtained one of their objectives.”

Read Gary’s entire editorial here.

What are your thoughts? Do we risk too much when we allow the pendulum to swing? Or does the government adopt a permissible position when it acts as it did in Boston?

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The Book Lady Law Examines Justice Lorna Lockwood, Reviewed in Arizona Attorney

Former Arizona Chief Justice Lorna Lockwood

I’ve written before about how much I enjoy a good book review. And as January is about to close, I point to another great review in this month’s Arizona Attorney.

The author this month is esteemed lawyer (and past State Bar President) Mark Harrison. He is a good writer, but to make his task easier, he wrote about a great woman—Lorna Lockwood.

Arizona’s first woman Chief Justice is described well in the book Lady Law, by author Sonja White David. Here is how Mark opens his review:

“In 1960, Lorna Lockwood became the first female Justice on the Supreme Court of Arizona. In 1965, she became the first female Chief Justice of any state Supreme Court in the nation. Justice Lockwood’s remarkable story is beautifully captured in Lady Law, a book written by Sonja White David, a resident of Mesa. In a way that Justice Lockwood surely would have appreciated, the author describes how a small-town girl from Douglas and Tombstone, Arizona, defied the odds and blazed the way for women in the law. In the process, Justice Lockwood left a significant and indelible mark on the law of Arizona.”

“Lady Law would be an enriching read for all Arizona lawyers, but it will be an inspiration for young girls and women. As Ms. David describes Justice Lockwood’s journey, she explains how Justice Lockwood was rebuffed and discouraged, not surprisingly by the male establishment, from pursuing her ambition to become a lawyer. As we now know, the pioneering role of Justice Lockwood was a harbinger of things to come; in the half century since Justice Lockwood was elected to the Supreme Court, the percentage of women in law schools has equaled and occasionally exceeded the percentage of men. In addition, women have come to play an increasingly influential role in the profession and on the judiciary.”

Read the entire book review here. And if you’re interested, the book is available here.

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Speaking Simply on Complex Issues a Huge Talent

Before January passes, I will pass on a few reading suggestions from the current issue of Arizona Attorney Magazine.

The first recommendation is an article by an accomplished expert who is not a lawyer himself. Brian K. Johnson, an award-winning author, instructs readers on how to communicate best with others on topics that may be complex. Titled “Lawyers Talking, Fast and Slow,” his article opens:

“When conferring with a lawyer, my brain is focused on just one thing: Help me figure out this thorny issue! Whether talking to my trust lawyer about choosing an executor, or the real estate lawyer who advises me about my 94-year-old father’s 40 acres of farmland with the problematic deed, my goal is the same. Has my money been well spent on sound advice?”

“Your clients most certainly share a similar desire. They need you to explain—clearly—an arcane or troublesome legal issue, and they want you to provide counsel on a course of action. Once the issue is fully dissected and understood, you and your client can figure out how to proceed.”

“Of course, all of that is more challenging than you might think.”

You’re not joking. The author is adept at setting out some lessons you wish were common sense but often are not.

Continue reading Brian’s great article here.

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Happy Halloween, or, The Scariness of Lawyers

Yes, that is C.J. William Rehnquist carved into a pumpkin. Be very afraid.

There is certainly no better day of the year than this one to connect the dots between lawyers and the underworld. And no, I don’t mean the Mafioso.

Happy Halloween. Perhaps I should have waited until today to share the story about an ASU Law School professor who chose to examine the relation between zombies and the tax code. But that tale already walks the earth, and I won’t dig it up again. (But if you missed it, here it is. Click at your own peril.)

If you read that haunting tale and still have a wooden stake you’re aching to use, then turn to this fascinating tale about a law professor (what’s up with the law professors?) named Victoria Sutton and her new book, titled Halloween Law: A Spirited Look at the Law School Curriculum.

In it, Sutton “examines the scarier side of first year law school subjects like torts, property and criminal law.”

You can read all about her attempt to terrorize the already terrified in this great blog post by John G. Browning.

As the ghoulish professor notes:

“I thought I might do something on vampires and the law,” says Sutton, “[b]ut there wasn’t enough variety.  But in my research I noticed a great number of cases revolving around Halloween, and it occurred to me the subject areas fell into the same categories we teach in the first year of law school.”

Many of us need only read “first year of law school” to begin uttering, “The horror, the horror.” But for those hearty souls who want to enter the dark cavern, push aside the cobwebs, and perhaps find a treasure (or at least a Halloween Snickers), here is where you may find Sutton’s volume of unspoken woe.

Be strong, and here’s hoping all your candy bars are full-sized.

Speaking of strong: Yes, that is Ipso Facto Halloween-ish brew. Don’t judge.

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In Praise of Book Reviews

I just finished reading a book review sent to me by a great Arizona lawyer. And I was pleased to discover that it was a terrific read and on a topic that fits Arizona Attorney Magazine. We’ll run it in an upcoming issue.

And that reminded me about how much I like book reviews—when they are executed well.

Here is another review in the September issue of the magazine. It’s written by Judge George Anagnost, a frequent contributor.

If you read Judge A’s review, you’ll spot some of the elements that make a good review:

• It tells its own story; it is not a forced march, chapter by chapter, through the volume.
• It evinces an understanding that a book review is still a magazine article, which needs somewhat of a narrative arc.
• It contains an author’s voice, rather than relying on the importance or prestige of the subject-book.
• It ties the book to contemporary issues, recognizing that readers will wonder, “What does this have to do with my life?”
• It reviews a recent book, rather than waits until the book is old and stale.
• It is written well and in a tone that matches the volume reviewed, rather than sounding like a high school book report (no offense to my high school readers).
• It is not a review of a textbook, or of a practice-specific volume, which would better serve a subset of Bar members.
• It’s brief—or at least brief-ish. The New York Review of Books we ain’t, so a book review for us has to be a delightful break rather than a full-fledged escape. Aim for 700 to 1,200 words. Readers and I will thank you.

Given my own criteria above, you’re likely to see a good number of history books reviewed. I do enjoy history, and I’m hoping readers do too. (Here is one exception, a charming review of Reading the Green: The Real Rules of the Game of Golf by lawyer Faith Klepper. She describes the book—concisely—and leaves no snark unturned. It’s not quite history, and it’s maybe a little specific of a topic, but golf, lawyers and humor seemed a perfect mix.)

But any review, even a treatment of history, that doesn’t touch on the modern day, or that doesn’t “reach” readers in a deeper way, will not make it into print—at least, not at Arizona Attorney. Instead, those authors get a polite “decline to publish” letter.

Do you have your own ideas for books to review? Contact me anytime at arizona.attorney@azbar.org.

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Why a “True Short Story” Is the Ideal for Profile-Writers

David Remnick, The New Yorker editor in chief who carves out time to write

The role of magazine editor ain’t exactly digging ditches, as a sometime-friend has advised me. And he’s right: My work tasks never involve picks, hoes or laying pipe. A fellow appreciates that, especially when the Phoenix temperatures hit 116 or so.

But (you knew a “but” was coming) sometimes when I face a stack of documents requiring close scrutiny, or when I have to somehow trim a lawyer’s sentence that is as long as a page, or when I must decide whether an attorney’s success on the tennis court is really (really?) worthy of inclusion in the People column … then, I begin to gaze out the window into the shimmering heat island and think, That’s not so bad.

Of course, that’s just temporary insanity, because I’m always able to remind myself of an important fact: Despite an ever-flexible list of “Other Tasks as Assigned,” I am, to a large extent, paid to write. So, dammit, stop gazing out the window.

That fantastic job benefit comes to mind on this Change of Venue Friday, as I think about the recent new-President profile I was privileged to write last month. And I am reminded every year that although that annual profile holds its challenges, it never fails to be a rush to interview people about important matters, and then to transform those conversations into something—occasionally—revealing.

The “revealing” part of the profile-writing job can make you feel you’re on a ledge, let me tell you. For it is straightforward enough to put someone’s resume into narrative form—and I’ve done that, when on a short deadline. But to go beyond, and to say something essential and insightful about a person, requires a large investment of time and energy. It requires that a writer become so conversant about the subject that she or he can confidently draw some conclusions—conclusions that may not be inked in the four corners of a notepad, or uttered in the stream of anecdotes from secondary interviews.

Besides the views into Bar leaders, I’ve gotten quite a few chances to write profiles, and I always feel like I have more to learn. And one way I aim to learn is by reading as many profiles as I can. One of my favorite spots to locate fantastic, rip-out-and-save profiles is The New Yorker. I routinely find myself drawn into a profile on a topic or on a person for whom I have had zero interest before I opened the magazine. But before I know it, I’ve encountered a new favorite “true story.”

The idea of the best profile being a “true short story” is an ideal, and it comes from a terrific magazine editor. If you have a few minutes on this Friday, watch this brief video with David Remnick, New Yorker editor in chief, on “The Art of the Profile.” I have to agree with his assessment of how fortunate the profile-writer is. For, as he points out, writing is an opportunity to carve something artful from what is almost always a mundane task-list of a day. Much better than ditch-digging.

If you’re in a hurry, here is some of Remnick from the video:

“Let me be honest with you: You’re failing all the time, all day long, all week long, all year long. And when you can write something, and publish something, do something out of the ordinary, that is a little funny, or a little insightful, or more artful, maybe—maybe maybe maybe—you don’t disappoint. I think constant disappointment is a very good spur to sometimes doing something halfway decent.”

“If you’re really self-satisfied all the time, you probably are a lousy writer.”

Or a lousy lawyer, chef, or ditch-digger, I would guess.

(Remnick reminds me of writer David Rakoff, who passed away this week. Among many things, Rakoff was the author of Half Empty, a paean to pessimism.)

Let’s hear it for the creative power of disappointment! I wish for you an unsatisfying—but creative—weekend.

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Enchantment: A Book Review

Today, a book review, of sorts. And boyoboy, when I cracked that spine, did I ever expect to dislike that book (more on why in a moment). But I found I liked it, quite a bit.

Self-portrait: Gaining management Enchantment by Guy Kawasaki

The book is titled “Enchantment,” and it came across my desk a few weeks ago (it goes on sale beginning tomorrow, Tuesday, March 8). Like all such unsolicited offers, this one came with a request: Review, please.

My first inclination was not to do that very thing—and not just because the subtitle had an unnecessary comma.

No, a better reason made me skeptical of “Enchantment: The Art of Changing Hearts, Minds, and Actions,” by Guy Kawasaki.

You see, there are a few sections I tend to ignore in Borders (when they used to be open): self-help, or management, or marketing.

I do understand that there is much to be learned in all of those segments of a store—and of our minds. But most of the offerings are so cripplingly bad, it makes your teeth hurt.

Message to authors: The bullet point is a tool to be used occasionally; it is not a magical roadmap to your entire volume. And unless you are James Joyce, the sentence fragment is a painfully bad mashup of a conversation and a written volume; it is a brain fart, not a stroke of genius.

So Kawasaki’s text had to overcome my own long-held prejudices, before he even got to his message.

And I’m pleased to say he did just that.

But first, for those who prefer to learn visually, here’s a neat infographic provided by the publisher. Charming, that. 

The “former chief evangelist at Apple” achieved success from the get-go, with a cover that is striking and evocative. In fact, the story of the cover’s evolution warrants its own epilogue, where he explains “how it took 260 people to make this cover.” If you decide to get this book (and you should), read that first.

The book’s structure takes you on a natural progression toward what he calls “enchantment,” the skill and art to alter someone else’s views and beliefs—and therefore actions. As he writes, it “transforms situations and relationships. It converts hostility into civility. It reshapes civility into affinity. It changes skeptics and cynics into believers.”

Is it “marketing”? Sure, that’s part of it. But it’s marketing + delight.

The book makes even us cynics recall what it is that we find alluring about our jobs and professions. It examines trustworthiness and likability (the deep kind, not the Facebook variety). It talks about sustaining enchantment once you’ve fostered it, and how to marshal technology in that effort.

Guy Kawasaki, who could enchant a brick wall.

The last few chapters explain “how to enchant your boss” and “how to enchant your employees.” And for me, some of that writing resonated the most of all. Here are two examples in regard to your employees.

First, Kawasaki talks about empowering your employees to do the right thing:

“Your best employees want to serve and delight your customers. … Let your employees do the right thing, and you’ll enchant them. And then they will enchant your customers.”

Easy to say, but how about a specific or two? He provides just that, in regard to performance appraisals.

“People often judge their intentions against the results of others: ‘I intended to meet my sales quota, but you missed yours.’ By doing this, they seldom find fault with their performance and almost always find shortcomings in the performance of others.

“If you want to enchant employees, you should reverse this outlook: Judge yourself by what you’ve accomplished and others by what they intended. This means that you are harsher on yourself than others and embrace an understanding attitude like ‘at least his intentions were good.’”

This passage put me in mind of an excellent article titled “Why Your Boss Is Wrong About You” that ran in the New York Times.

In the op-ed, Samuel Culbert, a management professor at UCLA, dissects all that is wrong with the typical American performance appraisal. Among other things, he argues that they only masquerade as being objective, when in fact they often are self-serving (and not in favor of the employee).

He offers an alternative: the idea of a “performance preview”:

“Instead of top-down reviews, both boss and subordinate are held responsible for setting goals and achieving results. No longer will only the subordinate be held accountable for the often arbitrary metrics that the boss creates. Instead, bosses are taught how to truly manage, and learn that it’s in their interest to listen to their subordinates to get the results the taxpayer is counting on.

“Instead of the bosses merely handing out A’s and C’s, they work to make sure everyone can earn an A. And the word goes out: ‘No more after-the-fact disappointments. Tell me your problems as they happen; we’re in it together and it’s my job to ensure results.’”

Kawasaki’s book also is focused on ensuring results, and I’ll leave you with one anecdote he describes in his book. It is about the power of welcoming the devil’s advocate to your business or organization.

“From 1587 to 1983, the Catholic Church appointed people to argue against the canonization of particular individuals who were being considered for sainthood. The advocatus diaboli, or devil’s advocate, role was to find fault with candidates to ensure saintly saints.

“When the practice ended after the election of Pope John Paul II, an explosion in the number of canonizations occurred. During his reign the church canonized five hundred people, compared to ninety-eight during the reign of all his twentieth-century predecessors.”

Are we all doing all we can to focus on results, and to show that rocking the boat is acceptable—and may even lead to sailing into more profitable streams? Probably not. Have we allowed too many sacred cows to be enshrined in the way we do business? No doubt.

Read this new book. It is practical, whimsical, readable, and occasionally enchanting.

Here’s where to get the book.

And here is the book detail:

Name: Enchantment: The Art of Changing Hearts, Minds, and Actions
Page count: 224
Suggested retail price: $US 26.95
Year of first printing: 2011
ISBN: 9781591843795

 

Fess Up

The confession is a central icon of the law—and of the Catholic Church, come to think of it. And because I’ve operated in both of those worlds, the declaration of guilt should come easily to me—you would think.

Well, I may as well get on with it. My mea culpa for the day? I have never read To Kill a Mockingbird, by Harper Lee.

Yes, I know, that is a standard of the American legal literary sphere. Written in 1960, it won a Pulitzer Prize. It travels deeply into issues of racial injustice and the loss of innocence. But it never passed before my reading glasses.

Strange, I know. I even got a few English degrees, along with a law school education, and still no Kill for me. How could I have slogged through Pennoyer v. Neff but skipped the novelistic moral high ground?

All I know is, I can’t be the only one. Anyone care to share?

The timing of this emotional outpouring is related to a State Bar of Arizona event this evening—a screening of the classic 1962 film version of the novel. People like “Atticus Finch” and “Scout” and “‘Boo’ Radley”—much-loved characters in the American lexicon, I’m told—will come to life on the big screen.

(The showing will benefit the Arizona Foundation for Legal Services & Education. I wrote about the October 14 movie screening here. And more detail is here. One thing to note: Bring cash, which is all the concession stand will take—not To Kill the Classic Movie Feeling, or anything.)

You never read it, son? I'm very disappointed.

I plan to be there in the Pollack Tempe Theater, with my daughters, as I watch and expiate for my literary sins. I’m hoping you join us too, whether you’re a Harper Lee groupie or not.