So the pseudonymous Atticus of Lawyers on Strike has revealed himself. A few days ago, in a post he called Killing Off Atticus Finch, he announced that he was done with the pseudonym and would shortly reveal himself. Tuesday, he did. He's John Regan (fully, John M. Regan, Jr.), an attorney admitted to practice in New York. One of his clients was a woman named Sephora Davis. She was, he tells us, raped at knife point by a police informant. She was then raped by police, by prosecutors, by judges and justices, by the legal system. He's written about it before, in general terms. Now he's doing it at length, on his no-longer-pseudonymous blog. Beginning with an Introduction. He will, he says, lay it out in detail. And provide the evidence. I'm going to run through all the evidence, step by step, or at least as much as I need to in order to explain the situation. The proof is primarily by documents, which I'll upload so everyone can see for themselves. It's going to take a while, probably quite a few posts over days or even weeks. I invite and deeply appreciate comments and criticisms from colleagues and others. This is an exercise in preparation for the hearing, among other things. A DIGRESSION THAT'S REALLY NOT In 1968, and the years before and after a war was raging in Vietnam, though we had never declared war. The congressional resolution that purportedly authorized our wholesale involvement was predicated at least in part on official government lies. By 1968, and the years before but especially after, while we were fighting in Vietnam, we were fighting the war here, too. The battles here were less bloody, but they tore the country. And so young men (mostly poor young men) were drafted and sent to fight and too often, far too often, die. And so other young men obtained student deferments to avoid the draft. And others fled to Canada or (fewer but still some) to Sweden to somewhere, anywhere, to avoid the draft. And yet others burned their draft cards in public (and felonious) protest. And some marched on Washington and tried to levitate the Pentagon. And were beaten by military police. And civilian ones. And some went underground and blew things up and destroyed in acts of sabotage and what you might think of as mini-terrorism. And in Vietnam a few Buddhist monks doused themselves with gasoline and set themselves on fire. END OF DIGRESSION THAT ISN'T When John Regan first began blogging, as Atticus, urging lawyers to go on strike against particularly pernicious judges and offering to try and coordinate, I wrote about it. More precisely, I wrote about what inspires that sort of anger. The system makes me angry. It's the dishonest cops and the corrupt ones and the violent ones and the blue wall of silence that protects them, even coddles them. It's the prosecutors who sign off on the snitches and the testilying, who hide the evidence and twist it. And it's the law professors who pretend or sometimes even believe that the police and the prosecutors will act on what the courts say and better their behavior because, well, that's the law. And it's the bankers and the oil company executives and the heads of the Fortune 500 and the doctors and the lawyers and the indian chiefs (but not the indians who aren't chiefs) who think and are dammit right that our country runs for them. Because Calvin Coolidge was, sadly, maybe right when he said that "the business of America is business" even if Charles Erwin Wilson wouldn't have been exactly right had he actually said that "What's good for General Motors is good for the country." And it's the media. Not just Fox but the more seemingly neutral networks and even the MSNBC's and the New York Times and Washington Post. Left, right, or center, they're all playing from similar scripts. Oh, juggle a bit, but nobody's seriously talking about holding government accountable for the outrages. Want an example? Take a look at what happened to Helen Thomas when she dared to express a private opinion about Israel and the Palestinians. As she said, I hit the third rail. You cannot criticize Israel in this country and survive. No more than you can publicly say, even as a private opinion, that US policy is part of what inspires terrorists to attack us. Of course it is. That's not a criticism of US policy (which is not to say that US policy is good, just that the particular statement is not a criticism of it). Nor is it a statement that the terrorists have a point. But what the hell is wrong with acknowledging that they don't attack countries that they like? Might it not make some sense to try understanding what motivates those who would destroy us? And god knows it's the judges who enable so much of all that as they craft out of whole cloth things like sovereign immunity which, asNorm Pattis pointed out the other day in reviewing Erwin Chemerinsky's new book, has no place in a Lincolnian system of "government of the people, by the people, and for the people." Norm wrote of, and quoting, Erwin, I was encouraged to read him take aim at sovereign immunity, the bizarre notion that in this republic of ours government is somehow beyond the reach of ordinary justice: "A doctrine derived from the premise `the king can do no wrong' deserves no place in American law. The United States was founded on rejection of monarchy and royal prerogative. American government is based on the fundamental recognition that the government and government officials can do wrong and must be held accountable. Sovereign immunity undermines that basic notion." Amen, I say. And as the Courts made up sovereign immunity, so they made up qualified immunity. Here's Norm again from the same post, the next paragraph, in fact. Oddly, Chemerinsky writes about sovereign immunity but neglects mention of an even more potent tool in the conservative arsenal of weapons used to keep ordinary people out of court, qualified immunity. This most obvious tool of judicial activism gives the benefit of the doubt to government actors in close cases and accounts for more dismissals prior to trial than any other legal doctrine. By way of example, the Practicing Law Institute in New York each year published a two-volume practice aid on litigation arising under 42 U.S.C. Section 1983, a federal statute that permits ordinary people to sue government actors for violating a person's federal rights. Fifteen years ago, one small chapter in the second volume of the aid was devoted to qualified immunity. The second volume of last year's aid was devoted to qualified immunity cases, and was more than 1,000 pages long. Just where did this doctrine come from? No one claims he framers intended it; no statute was passed by Congress to limit these claims. No, conservative judges cooked it up, and when they did, no one complained it was due to activism. I wanted to hear Chemerinsky's take on this doctrine. Strangely, the book is silent on the topic. Because it's about power and the powerless and despite those nice words about "We the people," the framers didn't think women qualified or men who didn't own land or Native Americans or, slaves who didn't even qualify as full persons, let alone some of the "People" of, by, and for whom this union was formed. All that is, of course, true. And now we know what, specifically, motivates Regan. To read his posts over the last 10 months, and to read his comments on this blawg, is to see the work of a cynic. Mark Bennett, who in an early post on Atticus described him as a coward (which seemed fair), now says he's not. No, John, I don't think you're a coward. Cowards don't make grand gestures; cowards slink away and hide. Confronted with blatant and heartbreaking injustice, you made the grand gesture. You tried to resign from the bar and, finding that ineffective, you sought refuge abroad where you hoped to be able to tell your story in court. Mark's right. Mark's also right about wondering whether the particulars of what Regan's chosen to do are likely to achieve anything, and suggests maybe the quotidian work has more value. But then gestures, even grand ones, rarely achieve much. But they have their own point. What Regan's doing may or may not inure to the benefit of Sephora Davis. (I'm not optimistic, but then I'm never optimistic.) It's even less likely that it will have any effect on what Paul Kennedy refers to as the "(in)justice system" in this country. But Regan's trying, as the overused saying goes, to speak truth to power. What we have in this business is a voice. We get knocked down and we get up again. They try to silence us, and we keep talking. Once in a while, we win something. Usually it's just for this client, today. Sometimes it's bigger. When it's big enough, they'll try to take it away – piecemeal if not all at once. So A.L. Kearns, on behalf of Dolly Mapp, got SCOTUS to give the exclusionary rule to the states. So Victor Earle, III, on behalf of Ernest Miranda, got SCOTUS to give us Miranda warnings. And so the politicians and the courts have been whittling away at them ever since. But we keep at it. A few weeks ago, I wrote this. Look, criminal defense lawyers, at least the ones who are serious about it, mostly cynics. If we didn't start out at least a little that way (and I suspect most of us did), we learned and earned our cynicism in the trenches as we watched the facts distorted and the law mangled by prosecutors and judges so that out clients could get screwed. And yet cynicism is only half the equation. It's flip side is romanticism. As we are cynics, so we are romantics. Our role model is, ultimately, a cross between Sam Spade, who won't take the fall for Brigid O'Shaughnessy because every fiber of his being wants him to, and Don Quixote, tilting at windmills and getting battered but by god he gets up again to go after the evil he sees – and to preserve the beauty. The thing is, John Regan turns out to be a romantic. That's what keeps him going on behalf of Sephora Davis. It's what drove him to try resigning his bar card. It's what drove him to Canada. Someday, perhaps, it will bring him back. Regardless, it's good to know who he is. Imperfect. Warts and all. Not quite ready to immolate himself, but that's a level of gesture almost beyond human capacity to imagine. (Hence, the video.) And really, even if he's given up much of the day-to-day in the trenches, he remains one of us. We just didn't know it. Welcome back, John. Glad to meet you. Give 'em hell.
Read more detail on Recent Constitutional Law Posts –