thoughts arising from the death of a defender of free speech

This week's obituaries included the last living link to two landmark moments in the history of freedom of expression.

Al Bendich was just two years out of law school when he wrote the brief that is credited with the victory in the famous "Howl" obscenity case. In 1957, Lawrence Ferlinghetti published Allen Ginsberg's masterpiece "Howl" in book form and sold it in his City Lights bookstore (now a San Francisco institution). Ferlinghetti was arrested on obscenity charges; the story of his trial is tremendous. You can read a bit about it in Bendich's New York Times obituary; the movie "Howl" is also a good primer.

A few years later, Bendich would successfully defend the performer Lenny Bruce. Of the four court trials that Bruce would endure, the case that Bendich defended was the only one to end in acquittal.

* * * *

I noticed Bendich's obituary while the law - and its many uses and abuses - was on my mind. We had just seen the documentary "West of Memphis," about a horrendous injustice perpetrated by the justice [sic] and legal systems in the US state of Arkansas. (A feature film "Devil's Knot" was also made about this case. It is terrible. Skip it and go straight to "West of Memphis".)

"West of Memphis" is the story of how three teenage boys were convicted of a crime they did not commit, while the man who very likely did murder three young boys was never even arrested. Two of the teenagers were sentenced to life in prison; one received the death penalty. Only massive, sustained, unrelenting public pressure - and the involvement of several high-profile celebrities such as musical artist Eddie Vedder and director Peter Jackson - resulted in the release of the convicted men, but not before they served 18 years in prison and without exoneration.

The personal and specific stories of what happened to these young men is awful enough, but far more terrible is the knowledge that these wrongful convictions were not unusual. The only unusual part was the public spotlight and their eventual release.

As we've learned through the work of people like Barry Scheck and The Innocence Project, and Northwestern Law School's Center on Wrongful Convictions, wrongful convictions occur all the time. While they may happen for many reasons, most wrongful convictions have one root cause: political pressure. Prosecutors feel they must produce a suspect and get a conviction in order to retain public confidence in the criminal justice system, and ultimately, their jobs.

What kind of justice is that?

I can think of few things more awful - more frustrating, more anger-producing, more disillusioning - than a person serving time for a crime he did not commit. And I can think of few things more useless in terms of justice. Wingnuts who complain about the (supposedly) liberal fixation on wrongful conviction conveniently forget that each wrongful conviction represents a murderer and/or a rapist who is free to continue to terrorize and kill more victims.

* * * *

I used to refer to myself as a law-school refugee; when I was in university, I was under a fair bit of paternal pressure to take the LSATs, apply, and attend law school. The idea held a certain amount of appeal. (Me and my subconscious puns.) Through my early 20s, I still occasionally considered it, to get involved in constitutional law, as practiced by organizations like the Center for Constitutional Rights and other left-leaning public-interest groups.

"West of Memphis" left me thinking about the many paths lawyers may take. For a long time, I worked as support staff in law firms where wealthy lawyers help even more wealthy corporations make more profit, pay less taxes, destroy the environment, and buy legislation to do more of all three. They're on one end of a spectrum that ends, for me, with the legal warriors who work to overturn wrongful convictions, defend the environment, defend free speech, defend human rights and civil liberties.

So... thank you, Al Bendich!


James Redekop said...

This Washington Post article summarizes a lot of the problems quite well.

Pertaining to your comment about prosecutors pushing for convictions regardless of the truth:

A state judge will quite reasonably suggest that prosecutors shouldn’t suborn perjury, shouldn’t retaliate against political opponents, shouldn’t suppress evidence, and that we should discipline those who do. That state’s prosecutors will revolt, accuse the judge of bias and demand that the judge recuse himself from all criminal cases.

Kirby Evans said...

Thanks for this post! Very interesting stuff. My mother introduced me to the work of Ferlinghetti in the early 80s and I loved the beats. It still amazes me that society tried so hard to silence the voice of poets. (I often think of the vitriol to which Walt Whitman was treated and it makes me sad) But it is also comforting to know that there were people like Emerson was there to speak out for Whitman and Bendich was there to defend our modern poets.

Thanks again.

Amy said...

Although I have much disdain for what many lawyers do, and I agree that there are far too many wrongful convictions, I know enough lawyers who fight for good causes, who represent small families and individuals who need legal help, who work to protect their communities, that I still believe that law can be a noble profession and the there can in fact be justice. I have several friends who were or are prosecutors who did not try to twist the facts or evidence to obtain a wrongful conviction. Most of them would say that there are far more wrongful acquittals than convictions. As with all fields, there are bad people doing bad things. But I still think many lawyers in both public and private practice are honorable. If I didn't, I would not have been able to spend my career training people to become lawyers.

James Redekop said...

While there are plenty of lawyers fighting a good fight, the system itself seems to be becoming more corrupted. Prosecutors cannot be punished for withholding or falsifying evidence, police can get away with murder, etc.

The recent announcement by the AG that police departments can no longer use federal drug laws to seize property from people who haven't been charged with a crime is both surprising and very welcome.

laura k said...

I don't think there is such a thing as a noble profession. There are people trying and succeeding in doing good things - in law, medicine, education, social work, writing, technology, everything. And there are people who care only for power and/or profit doing terrible things in all those fields.

One of my closest friends is a prosecutor in LA. Her work defends low-income and marginalized people from gang violence, and defends incarcerated people from further abuse. She is a person of great integrity, as are many of her colleagues.

There are teachers who bully and abuse students, teachers who are lazy and throughtless, and teachers who work tirelessly to include and serve and inspire.

Doctors who are passionate about patients and healing, doctors who care only about status and wealth.

And on and on.

laura k said...

Hey Kirby, thanks for your appreciation. Although I don't read poetry anymore, I love Whitman and Ginsberg, and I'm a huge huge fan of City Lights.

It still amazes me that society tried so hard to silence the voice of poets.

It is amazing, isn't it?! I suppose they were persecuted for their nonconformity more than anything else.

If you ever have reason to be on Long Island, New York, check out the Walt Whitman Center there. We made a pilgrimage there before we left the area - a great place.

laura k said...

the system itself seems to be becoming more corrupted. Prosecutors cannot be punished for withholding or falsifying evidence, police can get away with murder, etc.

I agree, except I think it has always been this way. In my favourite time period to read about and study - the late 19th century - it was the same way. Except perhaps worse, because there were no checks on the system at all.

Amy said...

I think I said law CAN be a noble profession, meaning that the way it is practiced by some is noble. I think that there are people who do noble things as lawyers, meaning things that are virtuous. So while I agree that no profession in and of itself is noble, there certainly are people in every profession who do noble things.

laura k said...

Yes, I agree. :)

Even before you left this comment, I was thinking, are there professions which are never virtuous, always scummy?

I mean, besides hitmen. :)

The only thing I came up was Wall Street. From my point of view, there are no noble stockbrokers, traders, and bankers.

Or real-estate speculators.

Amy said...

LOL! I am sure there are ways that members of those trades think of themselves as noble--that they are increasing the wealth for the benefit of all through some trickle down Reaganomics way of looking at things. And if they are the few who actually follow the law, then I am sure they see themselves as particularly virtuous compared to their colleagues.

laura k said...

Not everyone cares about being noble or virtuous. For many people, making money is what matters. They might make donations to different charities (also receiving a tax break) and feel that completes any other responsibilities.

In my experience, many many people feel this way. And you're right, they may fool themselves into believing that they are creating jobs or stoking the economic engines in some way.

James Redekop said...

I remember an interview with one Wall Street oligarch, who was boasting about how many yacht-constructing jobs he, personally, was responsible for.

Of course, the fact that he created ~100 temporary yacht-building jobs is kind of offset by the fact that he and his colleagues precipitated a global financial crisis which cost millions of people their livelihoods, but hey! He did create those ~100 jobs (for the time it took to build his yacht(s)).

Amy said...

Oh, I agree. I was thinking of one hedge fund person in particular. He's a "religious" person, so I am sure he has somehow convinced himself is morally worthy of his time. But in the end all they do is make the rich richer.

I remember the line in Pretty Woman when Richard Gere explains to Julia Roberts what he does for a living, and she responds, "So you don't actually make anything or build anything?...It's like stealing cars and selling them for parts."

James Redekop said...

Some non-noble professionals: a rich couple, trying to afford their new $1,100,000 house for them, their five kids, and their nanny.

"Two professionals should be able to afford a modest house, but we can't get the numbers to work and would appreciate some help," Eric writes. He earns $200,000 a year working one day a week in a medical clinic. But his real love is teaching, which he does one day a week at a university; this earns him $100,000 a year.