JUDGING CRIMES

In Michigan a few years back, a police officer shot and killed an unarmed person while on-duty.  A well-known lawyer publicly called the officer a "murderer" and "executioner."  The officer sued the lawyer, and the Michigan Court of Appeals affirmed the trial court's grant of summary judgment, explaining that "rhetorical hyperbole" and the use of "vigorous epithets" and "exaggerated language" is never actionable defamation. 

The same lawyer, referring to a different decision from the same court, characterized it as the work of "three jackass court of appeals judges".  He also said the members of the panel had changed their names from Hitler, Goebbels and Eva Braun.  Mere vigorous epithets and rhetorical hyperbole?

Well, no.  The attorney in question is Geoffrey Fieger, Michigan celebrity lawyer, publicity hound, political martyr and sometime politician.  Every state seems to have its own alpha lawyer.  Out West the fellow dresses in a fringed leather jacket or bears a catchy nickname like Racehorse.   But Fieger is from Detroit.  Not the smoothly harmonious Detroit of the Four Tops and Smokey Robinson, but the rude white-boy Detroit of Eminem, Iggy Pop and the MC5.  

As Law.com reported yesterday, the Michigan Attorney Grievance Commission is going after Fieger, contending that he violated Michigan Rule of Professional Responsibility 3.5, which provides: "A lawyer shall not: ... (c) engage in undignified or discourteous conduct toward the tribunal."  

The Commission lost in front of the Michigan Attorney Grievance Board, which concluded that the rule didn't apply to statements made outside the courtroom, and anyway there are some pretty obvious first amendment problems associated with depriving someone of the right to practice his profession on the ground of impoliteness.  The Commission then appealed to the Michigan Supreme Court ( I wonder how often that happens).

The Commission describes itself on its website as "the investigative and prosecutorial arm of the Michigan Supreme Court for allegations of attorney misconduct. "  You might expect that anyone who served as the prosecutorial arm of a court would want to disguise the confusion of roles, but apparently not.  At any rate, the Commission's position seems to be that "rhetorical hyperbole," "vigorous epithets" and "exaggerated language" are protected by the first amendment only when directed at people less exalted than judges.   Such as, say, police officers.

It's a bit hard to believe the Commission would pursue the matter so relentlessly without a few pats on the head from the hand that feeds it.  Could it all be related to the fact that Fieger devoted nearly half a million dollars to an unsuccessful attempt to unseat a justice of the Michigan Supreme Court?

A few days ago the AP ran a story headlined  "More Blacks Live With Pollution", the first paragraphs of which read:

CHICAGO - An Associated Press analysis of a little-known government research project shows that black Americans are 79 percent more likely than whites to live in neighborhoods where industrial pollution is suspected of posing the greatest health danger.

Residents in neighborhoods with the highest pollution scores also tend to be poorer, less educated and more often unemployed than those elsewhere in the country, AP found.

This might seem like another example of proving the obvious: people with the means to get out of heavily-polluted areas do so.  But today the AP sent out a follow-up story that began:

CAMDEN, N.J. - Lula Williams doesn't take a whiff of fresh air for granted. Not after living for nearly a quarter-century in front of a sewage treatment plant, around the corner from a factory and down the street from three scrap metal recyclers.

Note the dateline.  Camden, you may recall, was recently named the most crime-ridden city in America for the second year in a row.  (See post 9.)  This isn't coincidence.  Those with the means to do so move away from crime-ridden areas, just as they do from polluted areas.  But more broadly, the American society accepts high levels of pollution in our inner cities for the same reason we accept high levels of criminal violence: because those burdens are borne by the poor.  (See post 1.)

In Flaubert's story The Legend of St. Julian Hospitator, the penitent rich boy/animal slaughterer Julian is visited by a leper, whose infirmities are described in appalling detail.  Everything he touches, including inanimate objects, turns leprous.  The leper demands Julian's food, and his drink, and then demands to lie in Julian's bed, and finally that Julian take off his clothes and lie beside him to share his warmth.  Julian does all that is demanded of him: "against his thigh he felt the Leper's skin, colder than a snake and as rough as a file."  Only when Julian surrenders utterly is the leper revealed as Christ, who carries the saint into heaven.

Federal judges are overwhelmingly white (84%) and male (82%) and without exception well to do (salary $162,000).  They work in buildings with tighter security than airports.   The perks are nearly unbelievable.  They don't live in places with high rates of violent crime that are choking on industrial pollution.  When they order the release of dangerous people, they are releasing them into places like Camden.  They are inviting the leper into someone else's bed.