The Fifth Circuit should overrule the federal district judge in M.D. v. Abbott and put an end to the judicial interference with Texas’ foster care system.
The Guilty and the Oppressed
Growing up the son of a criminal defense lawyer who represented all sorts of unsavory people led to many strange experiences in my youth. I accepted collect phone calls from imprisoned felons, many of whom insisted, even to me—a kid answering the call—that they had been “wrongfully convicted.” I listened to my father rail against the abuses of unchecked executive branch power, as well as the ethical corner-cutting and sometimes flat out lying by the police. And I learned to balance the moral conflict—we could live in a world in which law enforcement did break rules and abuse power, while at the same time people who looked guilty, and were probably guilty, still deserved their legal rights. Innocence, my father always said, went out with Adam and Eve, but not guilty is a different kettle of fish.
My dad told me a joke about a young law student interviewing at a large firm for a job. After speaking to the well-heeled members of the firm who handled corporate and commercial law, the student sat down with a grizzled partner who handled criminal work. The partner began by asking the student how she might feel about defending someone who came into the office with a highly credible and believable story about how the police had wrongly arrested and charged him. The student enthusiastically responded she’d be thrilled to represent such a person. The senior partner then asked how the young student would feel about representing someone who looked guilty and had a much more difficult story to tell. The student said that would make her much less comfortable. “IF” the senior partner replied, “anyone ever comes into this office who doesn’t look guilty, I’M representing them not you. All of our clients have problems, and that’s what we do.”
As All-American smirker Tom Brady strolled out of federal court in New York last week, I couldn’t help but remember my father’s joke. As a Colts fan, I cannot claim objectivity in the case of Brady, but really that same sentiment should extend to any reasonable fan of the NFL. The Patriots have been caught bending the rules repeatedly and flagrantly for years. To look into the eyes of Bill Belichick is to contemplate a soulless gridiron demon who performs evil football experiments in a dark, cobweb-filled laboratory. He looks the part of a zombie and has the record to show it.
And who elicits less sympathy or looks guiltier than a cell phone-destroying, whiny multimillionaire married to a super model, who has fathered a child out of wedlock with a Hollywood actress? Unless you are a legitimate fan of the Patriots, how can you feel anything but contempt for Tom Brady?
And yet, he was treated unfairly by the system. I think he’s guilty, but Tom Brady didn’t get a fair shake. When a system is designed to place investigative, executive, and judicial authority into one person’s hands it does not dole out fairness. It is much more likely to dole out injustice seasoned with a touch of vengeance at the hands of a commissioner who has little public support, and public support is the key factor that any good King Solomon or Justice John Marshall needs to survive.
The accused regularly look guilty and may very well be guilty. However, the accused have difficult cases to present, which only highlights the need to rely on the impartial processes and procedures that a proper system of justice provides. None of us would want to live in a world without those protections, because as much as we might complain about the limitations and biases of the criminal justice system, “justice” arbitrarily handed out based on the whims of a dictator, whether that person is a Third World tyrant or Roger Goodell, is seldom just. Placing that much power into the hands of one person is simply too risky.
Making it worse for me as a Colts fan is that my father called this—weeks ago. While the mainstream media had long condemned Brady for his obvious guilt, my dad had complained, loudly, to the television that he had been denied due process. He asked, correctly, what the process and procedures were. He said if he had been Brady’s lawyer he would have appealed the four-game suspension in federal court and asked a judge to rule on the way the NFL handed down capricious punishments without due process.
At the time, sitting over coffee and looking up from a newspaper, I had waved my hands and laughed. Brady, I said, was obviously guilty and he deserved whatever he got. Due process be damned—because while I understood the vague outlines of labor law and monopoly exception, all I really knew was what I had read from sports writers and my own bias. I was sick of Tom Brady and the Patriots, convinced he had cheated, and more than willing to convict and hang without a trial.
But we all lose if the Tom Bradys of the world, guilty though they may be, are punished through an absolutist process. The NFL couldn’t really “prove” anything other than that Brady destroyed potential evidence and wanted to avoid talking to the league. But by failing to have proper institutions that impartially and fairly administered justice, the league besmirched itself. Roger Goodell can no longer act like an emperor being fed grapes and calling for beheadings as he fancies. The NFL is a multibillion-dollar business. With each passing year the league is going to be treated more like Microsoft and less like the WWE in the eyes of the legislature and judiciary.
But in a lot of ways, that’s the rub. The NFL needs to present itself as transparent and rule-abiding. It has a giant gambling and fantasy football audience that needs to know the game is not fixed. The league is trying to ride out public relations disasters on a number of fronts. It didn’t need a cheating scandal. And it certainly doesn’t need the quarterback of its defending championship team looking like a cheat and a liar hiding behind lawyers and spokesmen.
And yet here we are. Tom Brady did get treated unfairly by the NFL, but anyone who seriously believes he didn’t cheat and break the rules is living in a fantasy world. Those convicted felons in jail who called my father’s house collect when I was 12 and droned on about their innocence looked and sounded guilty. That didn’t mean that at least some of them (who could afford appellate lawyers) didn’t have a legitimate case, which merited the attention of an appellate court. It also doesn’t mean that Brady didn’t cheat or that we all shouldn’t harbor deep and reasonable suspicions.
I’m actually glad that he can play this season, mostly because I’m looking forward to watching the forces of universal payback do their worst—hopefully on October 18 of this year when the Patriots visit Lucas Oil Stadium.