June 15, 2005 Letters
June 15, 2005 Letters Letters Last Say I am writing regarding the April 30 News article headlined “Bill would give prosecution the last say in some cases.” I am one of the two defense attorneys who represented the defendant, who was accused of raping and burglarizing the woman quoted in the article. This has resulted in an attempt in the legislature to deprive the defense of the second closing argument in criminal cases where only the defendant or no witnesses are called for the defense.First, I would like to say that I take exception with this woman being called a “rape victim.” The defendant was found not guilty at trial. And he didn’t win on a technicality or a small point of reasonable doubt, either. One of the jurors actually went on the local news and said they voted not guilty because they didn’t believe the accuser and they did believe my client. Interestingly, no mention was made of the second close.Additionally, there were no new claims made about this woman in second close that hadn’t already been discussed or introduced into evidence earlier, regardless of her claims in the article. Anyone could order up transcripts of the trial and confirm this. If we are going to change state law based on one verdict, shouldn’t we be a little more thorough? The reality is that trial was over before the second close began.The broader question is, is there a logical or rational reason to change this 150-year-old rule? The reasons cited by the lawmakers quoted in the article would be comical if these people didn’t have actual power over the lives of others. One says most other states give the prosecutor the last say. So does that mean we should follow their lead without having a real reason to do so? Another one says that “for people who serve as prosecutors, it’s a tremendous burden.” Really? Assuming this were true, then wouldn’t the converse also be true? Is his goal to place a tremendous burden on the defense? I thought our court system was there to determine the truth and afford people a fair trial. If it isn’t and the only goal is to give prosecutors a crutch to get more convictions, then by all means change the rule. Another legislator actually referred to the rule change proposal as a “matter of right and wrong.” I can only infer from this language that he is saying that the defense having any opportunity to win a case is actually morally wrong. That kind of comment is crazy and dangerous. Can there ever be a not guilty verdict that is “right?” What if the guy was actually not guilty?Of course, one thing none of these people has considered is the unintended consequences of the rule change to the taxpayer and the court system. There is no doubt that the proposed rule change would increase the average length of criminal trials in Florida. One of the reasons we don’t have marathon trials, like they do in California, is the defense has a disincentive to putting on witnesses and evidence of marginal value, because it doesn’t want to lose the second close. You take that away, and there is no reason for us not to put on every uncle, cousin, and old buddy of the defendant whose testimony might even remotely be relevant. Also, is the legislature going to start fine-tuning court procedure every time it feels like it? That function should be left with the Supreme Court, where it belongs.Shouldn’t our laws be based in reason? Chris Brown Ft. Myers Diversity The May 15 News article on the Bar’s Second Annual Diversity Symposium shows us that, in today’s Florida Bar, the issue is not whether we will aim to have a diverse Bar but what methods we will take to achieve that noble end.Indeed, the forum contributors are correct in that there is a moral and business case for diversity, as it brings about an expanded vision and viewpoint. There are few better instances of this benefit than in the oral arguments during the 2002 U.S. Supreme Court case on cross burning and freedom of speech, Virginia v. Black, in which Justice Clarence Thomas spoke passionately on the history of cross burning. Justice Thomas’ contributions allowed us not only to see the legal and technical aspect of the issue, but also the historical relevance.However, attention should be given on the means to achieving diversity, as the means is the subject often in dispute. Diversity is to be achieved as a goal through a process of inclusion as inclusion naturally arises via a system of free and nonbiased competition. Here, prior walls which were erected to exclude are kept down; current walls of exclusion are torn down, and opportunity, which yields equality of opportunity and not results, is affirmed. Lowering expectations or standards in the name of inclusion is regressive and offensive.Competition, which is a fact of life in our society, need not be sacrificed on the altar of diversity. Natural inclusion of minorities into a competitive market need not oppose the value of diversity, as too many think. The goal is the right to compete and grow in a bias free environment, and not the right to be the “token minority” in some narrowly tailored summer associate program slot.Indeed, at times the symposium went down a strange track all together.On sexual orientation, I find it intrusive to inquire, via survey, on the sexuality of attorneys for purposes of diversity. Mind you, the value of inclusion on the basis of sexual orientation is not in dispute here. We need only press for nondiscrimination in employment and, where family benefit plans exist, benefits for the partners of gay and lesbian attorneys and staff. Inquiring on the sexual habits of lawyers in the name of diversity is awkward at best.In addition, the lack of discussion on the need for diversity on the economic background of lawyers and law students was disappointing and shows an illogical presumption of a disadvantaged status on someone because of their sexual orientation, disability, and race. This presumption is troubling and yields, as we have seen in some affirmative action systems which do not take class into account, inequitable results. Allowing the Bar or law schools to think they have done their social duty by merely establishing a “minority outreach,” which historically reaches mostly middle class or affluent minorities and excludes the underclass, is a false hope at best. Indeed, discussing sexual orientation, gender, race, and disability, as if these are the main four stigmas in our world, omits the divide between our relatively affluent community and the 40 million plus Americans of all backgrounds and races who live in poverty.In the final analysis, the answer to the challenge of diversity lies with opportunity, not an outdated mentality of paternalism posing as outreach. Minorities, gay and lesbians, persons with disabilities, and women are to be judged on their abilities and prospective contributions, not their status or grievances. Our aim should be an environment of tolerance, high expectations for all and affirmation, not artificial methods of promoting diversity. I most certainly hope The Florida Bar will consider this, and not undermine the contributions of excluded groups by well-intended but destructive paternalism, in achieving the noble goal of diversity. Luis Viera St. Petersburg June 15, 2005 Letters