Stalwarts in Defense of Liberty

Stalwarts in Defense of Liberty

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Remarks Delivered Upon Receipt of the Robert Louis Cohen Award

It’s great to be home and back with my family — my New York Criminal Defense Bar family.

Thank you Barry Kamins for your eloquent, and overly generous, introductory remarks. You are an inspiration to our profession, perhaps the most revered criminal defense lawyer in New York state history and a friend and role model for all of us. Please join me in saluting New York City Bar President Barry Kamins for all that he does to elevate our profession.

I also want to acknowledge the extraordinary lawyer for whom this award is named — Robert Louis Cohen. Judge Cohen, you are universally considered one of the nicest, most decent and caring persons ever to don the robes of justice. To receive an award named in your honor is a spiritual spark. I pledge to redouble my efforts to serve the defense bar. The only comparable honor is to be recognized on the same program as the legendary Jack Weinstein — perhaps the most influential and effective federal district court judge in our nation’s history. These two judges, Judges Cohen and Weinstein, epitomize the pinnacle of judicial intellect and temperament.

Before I share some brief remarks, I want to note the history we are sharing tonight. For those who remember the struggle for racial and gender justice in the 50s, 60s, and 70s, how ennobling to pause a moment and realize that so many dreams are now realized.

My soul soars to stand here tonight and receive this award in the presence of three presidents who are all trailblazers: President Tony Ricco of the New York Criminal Bar Association, the first African American to hold that position, New York County Lawyers’ Association President Catherine Christian, the first African American to hold that position in the 99-year history of the great bar association, and Carmen Hernandez, NACDL’s president-elect, who in August will become the first Cuban American president of a non-ethnic national bar association.

I also want to note the presence of President-Elect Bernice Leber of the New York State Bar Association. This is the first time ever we will have back-to-back women as State Bar president.

Everyone of us, and I mean every single one of us, knows all too well of the remaining bars to opportunity in our profession that we must tear down, but how about a robust cheer for the doors that have been opened and those who opened them?

Tonight, I accept this honor with a message of sadness, hope and pride. Sadness, because battles that I assumed were long over must now be refought. Our core constitutional principles are under a sustained assault that threatens to crack the foundation of our liberty.

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High public officials deride the right to counsel. Blatant disregard for human rights is not only tolerated, it is trumpeted as reform. The darkest vices in the arsenal of unrestrained government are celebrated by some as virtues: detention without charge, extraordinary rendition, torture, and denial of access to courts of law. Moreover, there is snooping, monitoring, and poking and prying into the behaviors and private communications of American citizens — without probable cause and without judicial intervention. And there are political litmus tests in the selection of America’s federal prosecutors. Politicians of all parties and philosophies — from the far right to the far left — have either stoked the fires of fear or remained tepidly on the sidelines — too cautious and calculating to stand on principle as this conflagration threatens to engulf our core freedoms.

But these horrific practices — these assaults on liberty — have not gone unchallenged.

That is why I speak of hope. Throughout American history, since John Adams staked reputation and life on his devotion to the sacred right to counsel by representing accused British soldiers on the eve of the Revolution, America’s defense lawyers have ridden to the rescue. Defense lawyers just like us. We are the stalwarts in defense of liberty, champions of justice against long odds and transient hysteria.

We, the defense lawyers of this country, who defend the meek, the mighty, and the high principles enshrined in our Bill of Rights, are the true law enforcement agents in America — and don’t ever forget it.

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The abuses that I described are challenged day in and day out by individual lawyers with courage and guts and stamina. Bar groups like this one, and the State Association of Criminal Defense Lawyers and, increasingly, the mainstream bar, are proving that America’s lawyers will not allow terrorists, the threat of terrorism, nor small-minded political opportunists to turn 9/11 into the first battle in the defeat of American democracy. And your national association, NACDL, on more fronts that I can possibly list, employs a coordinated strategy to challenge the abuses and promote reform.

And so it is with pride that I tell you that in every major case in which the Supreme Court and other appellate courts have been asked to rule on government overreaching, NACDL has been there with an amicus brief. Our struggle against capital punishment and the assault on habeas corpus and access to federal courts is ongoing. Just two weeks ago in Roper v. Weaver, the Supreme Court upheld the granting of a writ vacating a death sentence in a per curiam opinion that expressly relied upon a point raised solely by NACDL in its amicus brief. Also, our legislative and grassroots efforts support America’s defense lawyers as we seek to reform identification practices, secure due process in problem-solving courts, and implement universal recording requirements for custodial interrogation.

I am proud that three of NACDL’s past presidents from New York are here: Gerry Lefcourt, Larry Goldman, and Barry Scheck. In addition, our current president, president-elect, and vice president are all here from out of town. Let me introduce you to an internationally recognized expert on defense ethics, and the sole American lawyer serving on the Disciplinary Appeals Board of the International Criminal Court. He is the man who propelled the story about the political sacking of federal prosecutors by filing a motion to disqualify the Karl Rove political protégé in a death penalty case in his home district of Arkansas. Please welcome NACDL Vice President John Wesley Hall.

As I mentioned earlier, also present is Carmen Hernandez, a Washington, D.C., lawyer who will assume the presidency of NACDL in August. She is a native of Cuba and a product of the Upper West Side. Carmen is a nationally recognized proponent of sentencing reform. Her compelling testimony before the U.S. Sentencing Commission last November helped to persuade the commission to at long last begin to relax the unjust crack/cocaine disparity. Carmen, please stand and let New York welcome you home.

Finally, from Cincinnati, Ohio, President Martin Pinales. Under his leadership, we are on the precipice of securing passage of legislation that will at long last help ease the debt burden on young lawyers who choose a career in public service. The John R. Justice Prosecutors and Defenders Incentive Act has overwhelmingly passed the House and enjoys broad bipartisan support in the Senate. It will provide up to $10,000 per year of debt relief for public defenders. Marty, please stand and let New York’s lawyers say thank you.

So I take great pride in all this, but I also take pride in what defense lawyers do every single day in advocating for the accused. After nearly 30 years at your side, I see an indelible image. In my mind’s eye I will always see the defense lawyer — answering that phone call in the dead of night with the desperate plea for help from a terrified mother, friend, or neighbor whose son has just been arrested. I see her laboriously preparing for trial — missing family events and even when present, mentally absent, fearing that to overlook that one key report could lose a human life to the ages. I see her gearing up for the cross-examination of a vital witness, with little discovery, or worse, a mountain of it, delivered with scant time to prepare through the wee hours.

I see him enduring that slow-churning ache in the pit of the stomach as a critical moment in the trial approaches. I see him struggling over writing pad or keyboard to find just the right phrase that will enable a sterile legal argument to resonate with the chimes of justice. I see the defense lawyer pacing, through agonizing hours and days, the corridors of a deserted courthouse while a jury deliberates, haunted by the hollow eyes of a prayerful family. She wonders whether the human soul to whom she has given every last ounce of mental and emotional energy will return to family or will be consigned to a jail for more decades than a mind can grasp.

I see the defense lawyer basking in the indescribable elation of the not guilty verdict, or striving with earnest creativity — patience strained to the limit — to pierce the hard heart of a cold, self-righteous young prosecutor or callous, jaded judge. And I see the defense lawyer bearing witness to the tears of fear and frustration of the unjustly accused, and the sad and lonely lament of those gentle souls sealed inside a cell for the simple crime of human imperfection.

And I see the defense lawyer always striving valiantly to save a life and give a second chance, and always defending the dignity of the individual and the majesty of law. This is the American defense lawyer. This is who we are. We are the conscience of society, the last refuge of compassion. We wield the check on tyranny and the balance against persecution. To us is entrusted the ever-flickering torch of justice.

Of all the memorable words spoken by the president of my youth, John F. Kennedy, my favorite was how he phrased his call for a vigorous space program. It is a metaphor for the aspirations of humanity. “We choose to go to the moon,” John Kennedy said. “We choose to go to the moon not because it is easy, but because it is hard.”

Well, we choose to be criminal defense lawyers, not because it is easy, but because it is hard. The fight — the ceaseless fight to restrain the excesses of governmental power and to defend the simple dignity of every blessed human life — is a fight worth fighting. No matter the adversity, no matter the attempts to silence, shame, or intimidate us, we fight on. We fight on knowing that the founders who wove the right to counsel into our national fabric did not intend it to be a mere ornament. They intended that right to be an impermeable barrier against tyranny. We fulfill the solemn, sacred mission of the founders every time we enter a courtroom to stand beside the accused.

Now, inklings of mortality prompt me to ponder my life’s choices. A week ago, while away with my wife, Linda, whose support I so treasure, I had time for reflection and reconsideration. Tonight, I reaffirm that my decision to choose the cause of criminal defense as my life’s mission was the right one. There are less demanding callings, and, to be sure, there are more lucrative ones. But there is none about which it can so truly be said: “The journey is the joy.” Thank you for honoring me for the simple act of serving the cause I love.