Oregon State Bar Bulletin — OCTOBER 2002


Read the Decision
Bashing the 9th Circuit in general and Judge Goodwin in particular by so many employees of government concerns me on a number of levels. At one level is this concern. The discussion evidences the fact that the involvement of our government with the lives of citizens has become so overwhelming and intrusive that many have lost the distinction between government activities and public ones. Not all public activities are government ones; government is not pater noster.

I have no problem with God being in the public forum or marketplace, and I encourage it. I do have a problem with government putting Him there and clearly, the two challenged words have no other reason for being. If they are unimportant in a government setting, they need not be there, and, as a lifelong devoted Lutheran Christian, if they are to be excused as trivial, I am offended that they are there at all.

The opinion’s challenge was not ideological, personal or political, it was built upon the tests earlier developed by federal courts, including the Supreme Court, with which to measure actions of government against Constitutional restraints. Whether the tests were correctly applied here will be examined by other judges, and I am not writing on that level. But I do hope that the examination will not be ideological, although it is clear that, like everyone else, judges read the newspapers.

That they do is the only justification for this little ideologic input from a country lawyer. After practicing law for more than 50 years in many federal and state courts, I do not claim that I have not done my share of cussing judges. But I do have a rule that I would respectfully recommend to others, including my fellow Republican George Bush: and that is to read the decision first. Then, if one wants to consider it on an ideological level, think about whether you want your God (whomever or whatever he, she or it may be) to be subordinated by the endorsement of any government. My God doesn’t need such an endorsement, and I am offended that any government would presume to give it. On this level it seems to me that this was an easy case.

I suggest that on all levels we get off Goodwin’s back.

William Schroeder
Vale, Ore.

Questions Raised
While I found Josh Marquis’ article 'Just Punishment' (May 2002) to be among the most respectful articles in favor of capital punishment in Oregon, the article raises many questions, that if answered, may leave readers to reject his conclusion that many of the arguments raised by death penalty opponents do not apply to Oregon.

For instance, he states that only one of 26 death row inmates is African-American. The more telling statistic to determine if the death penalty has a disproportionate effect on people of color is to identify what percentage of those (African-American, Latino, Native American and other) populations are on death row.

The article states that nobody on death row has raised a 'credible claim of actual innocence.' Who decided what claims were credible and what claims were not?

According to the article, Oregon spends more on capital indigent defense than any state in the country. That’s good, but is only one factor to evaluate whether the capital punishment system is flawed. A comparison of the federal public defender budget with the prosecutor’s office budget would shed some light on this question. One should also compare the hourly rates paid to private attorneys assigned capital cases to the same lawyers’ market rates.

Finally, any discussion of the death penalty must reference whether and to what extent that mandatory minimum sentencing guidelines affect a prosecutor’s decision to seek the death penalty. If one accepts as fact that people of color are arrested at rates disproportionate to their population one would expect that people of color end up subject to the risk of serious penalty — including the death penalty — at a rate disproportionate to their population.

The death penalty is the severest of penalties and deserves the fullest discussion and consideration of facts.

Maria Andrade

An Open Letter
My Fellow American Lawyers: The seasons have now cycled since that moment when we saw a blue September sky turn the darkest of gray. One year ago, forces from outside our imagination attacked innocent and earnest people for no other reason than they were workaday participants in the wondrous journey that is America.

September 11th was not the first time we, as a nation, have endured such a stunning shock to our sensibilities and faith. Nor, in all probability, will it be the last. The deep outpouring of grief and sympathy from ordinary people all over the world was the manifestation of an almost universally-held belief that, despite the disagreements that invariably exist between nations, America is a phenomenon unlike any other in the history of mankind. That in power we find compassion; in wealth we find conscience. That we are a nation of individualism, fiercely protective of all manners of our freedom, a place where one can believe in any God, speak any idea, maintain any belief. The United States has been a salvation for millions and millions because we are a nation of democracy, tolerance and the deeply-held conviction that the human spirit, left to flower, can triumph over almost any challenge.

Such an allegiance to these ideals is not just rhetorical. It is written into, and facilitated by, our laws. It is our law, above all else, that binds us all to a common moral code. Our law protects us from tyranny, rewards our creativity, punishes our corruptness. Our law facilitates that which is the greatest moral concept our species has ever had the temerity to develop — the concept of justice.

As lawyers, you and I see justice every day. Fair hearing, due process and presumption of innocence are the foundations on which everything else rests. It is you and I, American lawyers, whose calling is to ensure that justice is done.

Most of us became lawyers because of a desire to be involved in the operation of the social construct. As officers of the court, we seek to ensure that our vast universe of human endeavor moves with the grace of justice. We are sworn to pursue this calling with our common oath to 'uphold, defend and protect the Constitution and the laws of the United States of America.'

I hope all lawyers have felt, as I have, a renewed passion for our chosen profession in these new times. No matter how far removed our daily work seems from the founding principles of this nation, we know that it is not. Justice exists every day, each a fair hearing, each served by due process.

The law is, and always will be, our collective shelter from the storm.

Alfred P. Carlton
President, American Bar Association
Raleigh, N.C.

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