Trial lawyers traffic in justice. When the American Trial Lawyers Association decided that decades of insurance industry funded propaganda attacking "trial lawyers" had paid off, they changed their name to the American Association for Justice. (Frankly, I would have preferred they changed their name to The Justice League of America, but I suppose that would create trademark issues.)
Even when we’re not making justice (or injustice, depending on your perspective), we’re talking about it. Two weeks ago I contributed to a debate at The Jury Expert over the ethics of using David Ball’s and Don Keenan’s Reptile to persuade juries.
It’s what trial lawyers do all day, whether they’re prosecutors, plaintiff’s attorneys, criminal defense attorneys, or civil defense attorneys: argue over justice and injustice, trying to convince a judge or jury or both that justice just happens to demand the best result for their client.
But some people have radically different conceptions of justice from others.
Consider SPC Bradley Manning, currently detained for one of the largest releases of classified information in United States history:
Federal officials have arrested an Army intelligence analyst who boasted of giving classified U.S. combat video and hundreds of thousands of classified State Department records to whistleblower site Wikileaks, Wired.com has learned.
SPC Bradley Manning, 22, of Potomac, Maryland, was stationed at Forward Operating Base Hammer, 40 miles east of Baghdad, where he was arrested nearly two weeks ago by the Army’s Criminal Investigation Division. A family member says he’s being held in custody in Kuwait, and has not been formally charged.
Manning was turned in late last month by a former computer hacker with whom he spoke online. In the course of their chats, Manning took credit for leaking a headline-making video of a helicopter attack that Wikileaks posted online in April. The video showed a deadly 2007 U.S. helicopter air strike in Baghdad that claimed the lives of several innocent civilians.
We obviously know very little about the situation at this time, but we know this much: Manning didn’t arbitrarily leak secrets for sport, nor exchange secrets for money like a traitor, nor give information to enemies with the intent to disrupt current operations like a spy. He leaked specific information pertaining to particular episodes in which he thought the United States government had engaged in wrongful conduct:
He said he also leaked three other items to Wikileaks: a separate video showing the notorious 2009 Garani air strike in Afghanistan that Wikileaks has previously acknowledged is in its possession; a classified Army document evaluating Wikileaks as a security threat, which the site posted in March; and a previously unreported breach consisting of 260,000 classified U.S. diplomatic cables that Manning described as exposing “almost criminal political back dealings.”
He claimed to have been rummaging through classified military and government networks for more than a year and said that the networks contained “incredible things, awful things … that belonged in the public domain, and not on some server stored in a dark room in Washington DC.”
He first contacted Wikileaks’ Julian Assange sometime around late November last year, he claimed, after Wikileaks posted 500,000 pager messages covering a 24-hour period surrounding the September 11, 2001 terror attacks. ”I immediately recognized that they were from an NSA database, and I felt comfortable enough to come forward,” he wrote to Lamo. He said his role with Wikileaks was “a source, not quite a volunteer.”
Few people think of themselves as the bad guy. It seems Manning didn’t. He thought the public deserved to know what their government was doing. It’s hard to dismiss that outright as a mere rationalization, considering that Scooter Libby and Daniel Ellsberg thought the same in their cases. Manning seemed to genuinely believe he was doing the right thing.
Then there’s Bernie Madoff, who is at peace in the Federal correctional facility in Butner, North Carolina:
But that evening an inmate badgered Madoff about the victims of his $65 billion scheme, and kept at it. According to K. C. White, a bank robber and prison artist who escorted a sick friend that evening, Madoff stopped smiling and got angry. “F— my victims,” he said, loud enough for other inmates to hear. “I carried them for twenty years, and now I’m doing 150 years.”
For Bernie Madoff, living a lie had once been a full-time job, which carried with it a constant, nagging anxiety. “It was a nightmare for me,” he told investigators, using the word over and over, as if he were the real victim. “I wish they caught me six years ago, eight years ago,” he said in a little-noticed interview with them.
And so prison offered Madoff a measure of relief. Even his first stop, the hellhole of Metropolitan Correctional Center (MCC), where he was locked down 23 hours a day, was a kind of asylum. He no longer had to fear the knock on the door that would signal “the jig was up,” as he put it. And he no longer had to express what he didn’t feel. Bernie could be himself.
Poor guy. He obviously does not recognize the justice of his situation and injustice of his victim’s losses; indeed, he blames them most of all:
One day, Shannon Hay, a drug dealer who lived in the same unit in Butner as Madoff, asked about his crimes. “He told me his side. He took money off of people who were rich and greedy and wanted more,” says Hay, who was released in December. People, in other words, who deserved it.
Neither Manning nor Madoff is a super villain or a madman. They were both ordinary folks, folks who could have walked into a lawyer’s office as potential clients or could haven been called to serve as potential jurors.
There’s a lot we can learn about the human condition from Manning and Madoff — both of whom broke bonds of trust that most of us consider sacrosanct — but the point here is how everyone has their own conception of what justice is and how it should be done.
Trial lawyers should be guided accordingly.