Philip Rosmarin

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Breathes there the boy with soul so dead, who never to himself hath said, “This is my own, my native land!”

The natives of my early childhood lived in jungles, and the boy I wanted to be was, coincidentally, Boy, of the Johnny Weissmuller Tarzan movies. In the movies, Tarzan never cracked a book, and Jane, who had cracked many, deferentially allowed her mate to christen their foundling.

I eventually outgrew my Boyhood.

The actor who played Boy, Johnny Sheffield, never did. He starred in twenty-eight films, nearly all of them barefoot in the jungle. The last was in 1955. Six years ago, he died after a fall from a ladder. After all that vine-swinging.

You may not be able to catch a vine, but you can catch one of his films, for free, here. Still there’s a price: it starts in the middle, the aspect ratio is all wrong, and it’s in French, no subtitles.

But, it’s Boy. In the jungle. In a loincloth. They don’t ‘low no loincloths in court.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Jail arraignments are a hoot and a half.

On one side of what looks like bulletproof glass is a sleepy-eyed bailiff, a couple public defenders, and two rows of men and sometimes a woman who look like they’ve all seen better days, and they have.

Today they’re waiting to see if their lawyers will find the words to persuade the judge to let them go home till trial, or to the cardboard box they’re living in on the street, or if not back to the forty-eight square feet with cot, sink, and toilet they share with their celly.

On the other side are family and friends of the prisoners, looking more than a little like boosters at a pep rally. A private lawyer or two.

Not much pep among the prisoners. Lot of morose going on there. One giant with a red mohawk looks like maybe he’s doing a Lyndon Baines Johnson impression, till you realize those monster loopy earlobes flopping against his jaws are what happens when the guards confiscate your gauges for your own protection.

Mostly mixed races in there today, but because this is Boulder, Colorado, there are actually a few white dudes, trying to keep their eyes pointed toward the floor.

One guy on the free side of the door flexes a few tattoos menacingly until you realize he’s the other lawyer there.

On the client side, after about ten minutes of point-free waiting, a guard mumbles slackly, “I’ll start the movie.” This is the film advising everyone of their rights. Nobody watches it; most have seen it before.

A lanky public defender natty as hell in bow tie, pocket square and vest, ambles over to talk with the prisoners, assess their cases, tell them how to plead. He’s never seen any of them before. Each gets about fifteen seconds of his time. It’s okay; no one’s going home today anyway. They’ll get another fifteen seconds next month.

The district attorneys are late: “Where are those DAs, man?” a deputy grumbles.

If you listen closely, and take care not to look in his direction, you might hear a guard talk about the fish they humiliated the other day. College kid picked up on suspicion of being a smart-ass. Gets to jail holding where another deputy confuses him with a sex offender just got released. Ain’t you him? No, no, I’m not. Sure, you are.

They strip him, three deputies, take all his clothes, throw him a jail smock that doesn’t quite cover him, play a little grab-cock, bend him over to search for drugs, keep him bent over a while just to be sure. Laughing, Lot of laughing.

They leave him, alone, shivering in the cell. He calls to a guard, asks for some pants. Guard ignores him. For four hours. He begs to go to the bathroom. Ignore him. He pisses himself. They send a woman in to see if he might be suicidal; I’d be suicidal. He says he isn’t. He just wants some pants.

Later they give him his own clothes. Release him. Mistaken identity. Get out of here, kid. Never happened.

The judge comes in and calls the first case.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Remember those ugly-ass size twelve Bruno Magli shoes the prosecution tried to prove O.J. Simpson wore while killing his ex-wife? That and other evidence the prosecution bungled didn’t work then, and according to a federal government report it shouldn’t work now.

The President’s Council of Advisors on Science and Technology (PCAST) has informed the chief executive officer of the United States that shoe-print, hair, ballistics, bite mark, fingerprints, and even DNA evidence are nowhere near as conclusive as prosecutors routinely pretend they are.

And the message to judges is to stop letting them get away with it.

Problems were not only with the reliability of the scientific methods used to rule in, or out, a suspect, but with how the evidence is interpreted by government experts willing to shade findings far beyond their scientific justification, in the interests of convicting defendants.

Experts love to testify — and prosecutors love to hear it, whether they believe it themselves or not — that their conclusions are one hundred percent, or essentially one hundred percent, certain, or at least certain “to a reasonable degree of scientific certainty” (my personal favorite). They like to say their error rates are zero, essentially zero, or negligible. The fact that there is no such thing as a zero error rate doesn’t seem to bother the government experts a smidge.

The FBI, to its credit, began to wonder a few years ago about its own experts. Reviewing the expert testimony in three thousand cases involving hair comparisons, the agency last year reported the science used to convict ninety-five percent of the defendants was either flat-out wrong or grossly overstated by the experts. Starting this year, they’re looking at some of the other dubious methods they’re using to lock citizens behind bars.

Based on its findings, PCAST recommends that judges never permit prosecution experts to claim that error rates are “zero,” “vanishingly small,” “essentially zero,” “negligible,” “minimal,” or “microscopic,” or to state that their conclusions are offered with “100 percent certainty” or proof “to a reasonable degree of scientific certainty;” identification “to the exclusion of all other sources;” or a chance of error so remote as to be a “practical impossibility.”

And it’s up to us ugly-ass criminal defense lawyers to hold the judges to it.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

It’s been a full week since the tallies have been digested in this otherwise indigestible American election.

I’ve mentioned before that I never wanted this blog to be the ravings of one Colorado criminal defense lawyer, plainspoken or otherwise. I’m interested in everybody’s ravings.

I want to hear from you. What are your hopes, your fears, your other feelings and thoughts, for and of this new President. I’m particularly interested in what you think the impacts will be on criminal justice and human rights, but I won’t censor anyone’s thoughts, wherever they take them.

If you will, take a sentence or two to introduce yourselves (“I’m a Rhode Island lawyer;” “I’m a plumber from Dublin;” “I’m the Vice President of the United States”), then say whatever you like.

I’ve heard that enemies lists are already being compiled, so I know this is no small request. I have an enemies list of my own, made up not of names but an oath: the enemy of justice, the enemy of human rights, is my enemy.

Thank you for your courage.

Make your comments just below.

I’m just a plainspoken Colorado criminal defense lawyer, but the way I see it…

Ring the bells that still can ring.
Forget your perfect offering.
There is a crack in everything.
That’s how the light gets in.

The only other songwriter who might have been awarded the Nobel Prize for Literature died the day before the United States electorate awarded its Presidency to a man whose idea of justice toward women is to grab as many as he can by the pussy.

Leonard Cohen, on the other hand, revered and immortalized women, and only months before his own death reached out to his dying former lover Marianne to tell her he himself was close behind, “so close behind you that if you stretch out your hand, I think you can reach mine.”

He was a particular favorite of mine, and millions — perhaps billions — more. His musical truths were widespread: a Buddhist, he was exalted, for example, on a blog dedicated to the development of Catholic legal theory. Israeli leaders mourned him as a voice of peace and justice. He sank beneath no one’s wisdom like a stone. He was everybody’s man. For a long time I used to quote the refrain above, in my email signature line, part of his — and what easily could be the Canadian National — Anthem. Those words have sustained me in many a battle for criminal justice for my clients.

He advised us once, in a line from his grandfather’s journal, to “(l)et judges secretly despair of justice: their verdicts will be more acute.” He read the Bill of Human Rights, and even found some of it was true.

Toward the end of his life, as his golden voice faded to a gravelly stateliness, on many of his recordings he was often backed up by what seemed a heavenly chorus of female voices.

In a perfect afterlife, there would be just such a heavenly choir to welcome Leonard Cohen home.
That would be pretty to think, as many do. But as Leonard Cohen and others have felt, time to time, the siren call of rebirth, it would be prettier still to think of a return of that glorious collection of propensities to the planet the rest of us still inhabit.

We could use a voice like his again, in twenty years or so. Hallelujah.