This is probably the most brilliant piece of advocacy, the best on-the-spot comeback, that I've ever seen, not excluding some rich retort, probably apocryphal, by George Bernard Shaw or Winston Churchill.
The scene is set with defense counsel, Seth Waxman, the former Solicitor-General of the United States of America, under Pres. Bill Clinton, which means he's no slouch, standing at the podium before the nine justices of the U.S. Supreme Court.
Waxman is trying to save this guy's life, Thomas Miller-El, 53, who survives on Death Row in Texas, where they don't fool around. TME has been on Death Row for nineteen years. He's kept the pinball from dropping for that long.
This is Miller-El's second trip up before the Big Nine. He won the last time.
But the Fifth Circuit refused to follow the holding of the Supreme Court.
Composed of former prosecutors who are used to getting their own way, especially with people they think are murderers who deserve the death penalty, the Fifth Circuit apparently thinks it can adopt a one-to-eight dissent by Justice Clarence Thomas as law instead of an eight-to-one holding by all the rest.
In my Con-Law class a student once expressed confusion, asking how he was supposed to regard the dissents that popped up so often in the assigned cases.
What kind of law were the dissents?
They are written in the legal style, I acknowledged, full of citations and language. They look like law.
But there is one thing missing in a dissent.
Enough votes to make it law.
That's why It is a dissent.
It got voted down.
It was what the law was not, not what the law was.
Then why do they put the dissents in, he wondered.
Because that's how you know what the fight was about.
If you know what the loser was fighting for, and what the winner won, you might be able to understand the principle that was at stake.
If you don't know what the fight was about, historically, you are reduced to trying to cram your memory with rules.
That's what Bar Review students are trying to do. Learn rules, not principles. That's a tough way to go.
But I was talking about Waxman. He's arguing before the Supreme Court, which he's done before. He's fighting for the bad guy, Miller-El.
Justice Antonin Scalia is having none of what Waxman is selling. Here's how Linda Greenhouse, the experienced NY Times Supreme Court reporter, describes the incident:
"When Justice Scalia, who did an energetic job of reinforcing the state's argument at every turn, told Mr. Waxman that the state had an explanation for each juror and that "a buckshot attack" on the jury selection "has to be examined pellet by pellet," the lawyer responded:
"Let me switch metaphors on you. It is pointillistic. It's like walking up close to a Seurat and looking at a red dot and saying it's not necessarily a handbag. As a reviewing court, you have to step back and look at this."
Here's the way the world works:
In any trial there are two kinds of attorneys, the Putter-together and the Tearer-apart.
Let's say that your first law job after passing the Bar is as a prosecuting attorney. Your supervisor hands you a half-dozen files and points you toward the courtroom. A panel of jurors is in the jury commissioners room. The supervisor tells you to get pleas on the cases that you can and to try the rest. You get rid of five and wind up trying the weakest DUI in the stack, the one with the most sympathetic driver, the one who could be your uncle, if not closer.
You put the arresting officer on the witness stand. He's sworn-in to tell the truth, the whole truth, and nothing but the truth, so help him God. He testifies that he observed the defendant driving at an excessively slow speed on the freeway, weaving several times in his lane, before the officer decided to pull him over. It took unusually long for the driver to pull over, he stopped with the right front passenger wheel on the curb, and fumbled for his driver's license in his wallet when asked to producer it. The driver's breath smelled of some alcoholic beverage, his eyes were bloodshot and watery, his speech was slurred, he couldn't walk an imaginary straight line on the ground, stumbled on the turnaround, failed to follow the instructions, got confused on the alphabet because he tried to remember the kindergarten nursery rhyme instead of thinking about which letter came next, and blew a 0.08 on the chemical test. Admitted to two beers. Said he didn't feel the effects.
As a prosecutor, you think you've got a dead-bang winner because you've put together all this evidence to paint a picture of guilt.
But a good defense attorney can tear that apart, by holding each piece ups, separately, and casting doubt on it as proof beyond a reasonable doubt of guilt.
"Officer, you don't mean to tell this jury that just because a person in his forties who paints houses for a living, becomes mixed up on the Alphabet, something he does not use in his daily work, as you do, officer, or I, or the prosecutor, or the judge, or many jurors, that this means the person was so under the influence of alcohol that he could not drive a vehicle safely, now, do you Officer?"
The officer is forced to say No.' Of course no one piece of evidence, taken alone, is sufficient to convict, usually.
The defense attorney is performing as the Tearer-Down of the prosecutor's case.
Later the prosecution and defense switch roles.
If the defense puts on a case, the DA will become the isolator, the tearer-down of evidence, while the defense will be asking the jurors to observe how well the defense version holds together to tell cogent story.
Justice Scalia, in the example, is playing the role of the Tearer-Apart. He wants to hold up and examine, pellet by pellet, every piece of the buckshot approach.
Waxman is having none of this game. It's way too old.
Let's take the pointillist approach of M'sieu' Seurat, he suggests, complimenting Justice Scalia's cultural acumen, as well he should. After all, Scalia gave us kulturkampf. You could look it up.
(It means 'culture wars,' as what's been going on for awhile.)
Waxman then shows, using the perfect metaphor under the circumstances, how you can take a good thing too far, Justice Scalia.
If you look too close, all you see are little daubs of paint, just tiny dots.
But if you step back, what do you see?
A pattern!
You must step back, Justice Scalia, to get the bigger picture, otherwise you get no picture at all, just dots.
You will have crossed the line beyond which lives the dreaded "circle of confusion."
It seems to me I wrote about that just the other day. You could look that up too, if you feel like it. That's why I stuck the Google-This-Site feature at top-left. So I could find things. 'Cuz cross-referencing on TypePad ain't so easy.
Well done, Mr. Waxman, I take my hat off to you for trumping Scalia's "Let's look at each pellet" approach with your "pointillist" approach.
I'm not sure you're going to budge Justice Scalia, however. Between his kulturkampf and your pointillism, Germany wins.
Scalia may be just a bit too testadura.
Hard-headed.