The Champion

December 2016 , Page 05 

Search the Champion Looking for something specific?

Access to The Champion archive is restricted to NACDL members. However, this page and others deemed to serve the public interest - as opposed to a narrower benefit to the criminal defense profession - are left unprotected for access by all interested persons.

From the President: Second Acts

By Barry J. Pollack

Read more From the President columns.

 

“I once thought that there were no second acts in American lives . . .” 

— F. Scott Fitzgerald, “My Lost City”

“There are no second acts in American lives.” 

— F. Scott Fitzgerald, “The Last Tycoon”

“You can say you somebody new. You can give yourself a whole new story. But what came first is who you really are, and what happened before is what really happened. It doesn’t matter that some fool say you different, ’cause the only thing that make you different is what you really do, or what you really go through.”  

— D’Angelo Barksdale from David Simon’s “The Wire”
 

F.Scott Fitzgerald scholars have long debated whether Fitzgerald’s belief in the possibility of “second acts” changed over time. In “My Lost City,” he seems to say that he once doubted the possibility of second acts, but had come to believe they could occur. Years later, in “The Last Tycoon,” his earlier belief had not only returned, but it had seemingly hardened. He famously declared there are no second acts in American life. As a criminal defense lawyer, I wonder if Fitzgerald’s seeming vacillation resulted from the fact that he never had the benefit of hearing D’Angelo Barksdale’s insight about second acts.

D’Angelo Barksdale was, of course, a character in David Simon’s “The Wire.” Some of you had the pleasure of hearing Mr. Simon speak at the tremendously successful Foundation for Criminal Justice dinner in Washington, D.C., this past October, where Mr. Simon was an award recipient and keynote speaker.

In one episode, while doing time for a drug conviction, Barksdale joined a book club at the prison library. The book being discussed was “The Great Gatsby,” which Fitzgerald wrote before he began to ponder “second acts” in “My Lost City” and “The Last Tycoon.” Yet, it was from “The Great Gatsby” that Barksdale drew profound conclusions about whether second acts are possible.

Barksdale understood that second acts do not come simply because they are declared. They come from within. They can only arise from “what you really go through.” The only way an observer can determine whether a second act is, in fact, different in kind from the first act is not by listening to declarations, but by judging the actor’s deeds. “The only thing that make you different is what you really do.”

Barksdale understood there is a fundamental difference between the appearance of a second act and the reality of one. A person might be given the opportunity for a second act and may even by outward appearances seem to have taken that opportunity. But it is not truly a second act unless the person has been transformed. If the person learned from the first act, the second act will be fundamentally different from the first. However, if the person has no insight from the first act, the seeming “second act” will merely be a continuation of the first. 

Purported second acts in politics are nothing new. After a career as a businessman and showman, Donald Trump’s new role in American life is as president of the United States. In that role, he has the ability to offer the opportunity of second acts to others. In his first selection for his Cabinet, Trump chose Jeff Sessions to serve as attorney general. In doing so, what Trump offered Sessions was actually a possible third act, or a second opportunity for a second act.

In 1986, Sessions was nominated to the federal district court by President Ronald Reagan. After a confirmation hearing raised serious questions about Sessions’ views on race and civil rights, a Republican-controlled Senate Judiciary Committee voted against recommending Sessions to the full Senate for confirmation. One might have thought that such an ignominious result would be the end of his political career, but 10 years later Sessions was elected to the United States Senate. Now, another 20 years after that, he has the opportunity to serve as the attorney general.

Sessions is not the first person to have the opportunity for a new act as attorney general. In 2000, incumbent Missouri Sen. John Ashcroft lost his bid for re-election to Mel Carnahan. Carnahan had been a popular governor of Missouri, but he had died in a plane crash several weeks before the election. One might think that losing an election to a dead guy would be the end of one’s political career. Yet, just weeks after Ashcroft lost that election, the Supreme Court determined that George W. Bush would be the next president, and Bush named Ashcroft as his attorney general.

In a different context, for a time, Elena Kagan and John Roberts’ respective stars seemed to fade from view, as each saw their nomination to the D.C. Circuit Court of Appeals, widely regarded as the second most important court in the country, expire without action before the president who appointed them left office and was succeeded by a president of the other party who did not re-nominate them. Kagan was subsequently appointed by a different president to the Supreme Court. Roberts was subsequently appointed by a different president to the D.C. Circuit, then as an associate justice and finally chief justice of the Supreme Court.

But are any of these purported second acts authentic second acts? Or did the first act simply continue, with luck or fate having changed the actor’s circumstances so that the first act just played out in a different setting? The mere fact that there has been a set change does not mean that a new act has started. To tell the difference, we need to employ the D’Angelo Barksdale standard.

For anyone, regardless of how they acquitted themselves in their first act, a dramatic change in circumstances permits the possibility of greater empathy, insight, and wisdom. History will judge whether and in what way each of these individuals’ second opportunities were really different from their first acts. Was past prologue for each of them? Or did they grow with their new responsibilities and take actions in their new roles that demonstrated they truly were in a second act?

When he was a businessman and a showman, there was little opportunity for us to learn much about Donald Trump’s beliefs on issues related to criminal justice. What we do know is that in 1989, less than two weeks after the horrific attack on the Central Park jogger for which five men of color had been arrested, Trump took out a full-page ad in all four major New York City newspapers to declare the need to curtail civil liberties to address a sub-population of the city that Trump believed to be out of control and to advocate for bringing the death penalty back to New York. During his presidential campaign, Trump once again declared these five men guilty, despite the fact they had long since been exonerated by DNA evidence and the confession of the single actual perpetrator.

As a candidate, Trump ran on a “law and order” platform. He said he would employ “stop and frisk” policies across the nation. He promised to “load up” Guantanamo with “some bad dudes.” He said “you can bet your ass” he would bring back waterboarding “and more than that,” noting that even “if it doesn’t work, they deserve it anyway.”

Trump has wavered, back-peddled from, and outright reversed some of his campaign rhetoric since his election. Yet, he nominated as attorney general someone whose first act aligned with much of his campaign rhetoric. President Trump and Attorney General Sessions will now each have the opportunity for a second act. But will their new roles result in them seizing that opportunity and having a true second act? To answer that question, Barksdale would ask, what will Trump and Sessions “really go through” as they experience the gravity of their respective offices? What will they “really do?”

At the time I am writing this, President Obama has used presidential clemency to give over 1,000 people the opportunity for a second act. This unprecedented use of the clemency power was facilitated by NACDL and Clemency Project 2014, an effort about which every member of this Association should take enormous pride. Will the clemency recipients have actual second acts? Will what they have really gone through change what they really do? My guess is that some will not transform themselves from their first act and therefore will not experience a true second act that is fundamentally different from the first. But I believe that most will understand the extraordinary opportunity they have been given and will take full advantage of it. They will work to make up for past transgressions and will use their newfound freedom to improve themselves and the world around them. For each person who does this, there will be a second act in American life.

I reserve judgment on whether Mr. Trump and Mr. Sessions will do the same. I hope they each have a real second act, in the D’Angelo Barksdale sense of the term. But I take great comfort in knowing that this Association will be watching their deeds, not just listening to their declarations, and will challenge them at every turn where they fall short.

About the Author

Barry Pollack is Chair of the White Collar & Internal Investigations Practice at Miller & Chevalier. As a former certified public accountant, a substantial focus of his practice is representing defendants in complex financial matters. He is a Fellow of the American College of Trial Lawyers and of the American Board of Criminal Lawyers.

Barry J. Pollack
Miller & Chevalier
Washington, DC
202-626-5800
www.milchev.com
@millerchevalier
bpollack@milchev.com 

In This Section

Advertisement Advertise with Us
ad