The year of our Lord 2012 saw the passing of two gifted men, each of whom practiced their craft in the criminal law courts of Bexar County, Texas. More often than I would have thought, these past months I have reflected much on my experience with each man. I realize that it is likely that most of you never worked with or come to know either of these men. Unfortunately for those who never did, it is also as likely that had you been around and worked with either man, you would have felt something special in the experience. Surprisingly, though, the impact on me has assumed a different and much more meaningful character than merely fond memories of a colleague now gone.
Each man lifted the spirit of the room they occupied; each earnestly advocated his position with integrity, passion, and a unique set of skills; each exemplified so many traits of what an attorney should be. I give thanks for Jimmy Parks Jr. and Charles “Chip” Rich III. For me and on behalf of our community, I am thankful for their existence. As I have pondered about their lives, however, I began to realize that I received an unexpected gift . . . a different perspective on justice. More than a pleasant remembrance of two very special people, what has surprisingly unfolded is a different way I now think about our adversarial system. Unexpectedly, I continue to walk away from their funerals toward a new vision of justice.
As we know, the adversarial system of justice in which we live and work is said to be the best in the world. Often in jury selections our judges speak to the panel about how our system is the best (it’s funny how we always want to think we are the best). Contrary to an inquisitorial system, where one or more judges are tasked with investigation and decision, adversarial litigants face off in battle before an ostensibly impartial judge or jury. But, contrary to its assumed crown of superiority, our system is not without its critics. Some have traced our system to the medieval mode of trial by combat, where superior force and ingenuity were determinative factors. Legal scholars continue to question whether justice is truly served in our current system by pointing out that the system is more concerned with resolving controversies rather than finding the ultimate truth. All too often, added fuel for such criticism is the inequitable resource that one side often has over the other. This is particularly true in our criminal justice system, where the weight of the government’s advantage is in manpower, funds, and authorized secrecy. But such becomes the game in winning and losing, where superior force and ingenuity again rule the day. Indeed, truth be told, does not lady ethics also suffer a blow where the higher value is placed on winning rather than the search for truth?
The passing of my two colleagues spurred me to focus on the justice of our adversarial system of justice. Much was written and said about each man after their respective passing: each life commendable, memory of each well deserved. Though each worked in the same courthouse and the same area of law, however, their lives did not often intersect. They were not social friends, insofar as I know; they did not attend the same church or share the same close friends. What they did share were remarkable good qualities in their strident passion for law and justice; they were both outstanding advocates; they both loved their children and families immensely; they both were strong in their faith; they both demonstrated remarkably pleasant and charismatic personalities; and they both carried the name of their respective fathers.
What struck me, however, is neither the differences nor similarities of their lives. That is, I came to realize that it is not their personalities or advocacy skills that have had the greatest impact on my life. Rather, I have been enlightened and intrigued by the crossroad that the proximity of their deaths has brought me to. To me, the most enlightening aspect of their coexistence in our courts and my life (and indeed, the interesting temporal proximity of their deaths) is the fascinating juxtaposition that I discovered.
To clarify, a bit more explanation of each is necessary.
Jimmy Parks Jr. was 61 years old when he passed away. As a criminal defense attorney, Jimmy was a warrior extraordinaire. He took the defense of citizens-accused to a form of art. Having fought alongside him in many battles and shared many conversations about life, I saw, felt, and knew the fiery passion within him for constitutional principles of fairness, burden of proof, and presumption of innocence. His very existence constantly called out for justice.
Charles “Chip” Rich III was 46 years old when he passed away. By all accounts, he too was a warrior extraordinaire. As a felony prosecutor in the district attorney’s office, he passionately and tirelessly argued on behalf of victims and against the ravages of crime. Having worked against him and listening to similar stories of others, I saw clearly that Chip held an unbreakable conviction for righteousness, fairness, and the rule of law. Similar to Jimmy, Chip’s very existence constantly called out for justice.
I attended the funeral services of each of these good men. Central to my new line of thought, it was evident that each was a faithful man, passionately devoted to living the word of God. They each gave of themselves to our community outside of law, truly living out the type of life God desires of all of us. When I shared offices with Jimmy, I came to know him as a Christian man who daily studied the Bible. We discussed the meaning and breadth of chapters 61 and 56 of the Book of Isaiah, where scripture teaches that God “loves justice” and we are to “maintain justice and do what is right.” I later learned the same was true of Chip, as he was a devoted reader of the Bible and an active and involved member of his church community. How did they interpret these Biblical calls for justice in the context of their profession? How do I and others respond? Interestingly, these two devoted followers of Christ chose diametrically opposed tracks in their search for justice.
And therein lies what I see as a juxtaposition: their heartfelt passionate advocacy of diametrically opposing positions in an adversarial criminal justice system, yet each relying on the exact same spiritual force and principles for guidance. I liken it to two trains traveling down parallel tracks in our criminal justice system; two trains consistently taking different parallel tracks of advocacy, never touching each other. Ostensibly, we (and I assume each of these men) have viewed this as a parallelism that is necessary in order to intersect at justice. Now, however, I begin to wonder whether the temporal and substantive crossroad of Jimmy and Chip’s lives and deaths is meant in part to steer me to see justice in a new light.
As noted above, our adversarial judicial system depends on two opposing sides vigorously advocating and defending their position. We are taught since law school, if not before, to conclude that such a clash of titans births justice. And because justice is a spiritual foundational bedrock, it is reasonable for me to conclude that Jimmy and Chip zealously advocated his respective position sincerely believing he was fulfilling his role in God’s will. Heck, we all do!
But is it reasonable to cavalierly conclude that justice is borne through such a system? Should we walk away from the dying of these two men with the simplistic notion that two solid, weary warriors for justice will now rest, and life in our criminal justice system will, and should, ramble down its tracks as before? Or can the duality of Jimmy and Chip’s lives and deaths cause us to re-think our notion of justice and advocacy? That is, is it satisfactory for opposing lawyers to continue to travel parallel tracks separated by a chasm of ideology, fiercely advocate for their respective positions, and simply trust that “justice” is the inevitable destination? If so, how do we rationalize the seeming dichotomy of attorneys such as Jimmy and Chip who are devoted followers pursuing the same Biblical justice? Is this continued parallelism the best route to accomplish what the prophet Isaiah meant when he wrote “do right” under the law? Adversarial advocacy—is this “doing right”?
I’m not so sure. Probably a bit crazy, but I’m unwilling to dismiss the proximity of the passing of these opposing warriors as happenstance. I’m actually foolish enough to think that the juxtaposition of these two lives and deaths is meant to spur me and us to seek greater understanding and development. The duality and ultimate convergence of Jimmy and Chip’s lives and deaths has led me to envision the possibility of a different path towards a crossroad where the spirit of these two devoted God-followers and adversaries ultimately met. A crossroad where the spirit of justice that each man embodied can live as one. A course of direction where strict and separated parallelism is not the best course. I am led to envision a place where I—and all of us—could actually become the embodiment of one spirit of justice. Where one lawyer can zealously advocate for her client, yet still understand, empathize, and wrap herself within the spirit of the other’s position. Is this possible? If so, how?
I sat as a prospective juror in a jury selection months ago, and watched and listened as two opposing lawyers attempted to steer their respective trains toward justice. The prosecutor carefully and meticulously worked to diminish the concept of “proof beyond a reasonable doubt.” Despite its position as the highest burden of proof in our land, if not the world, “reasonable doubt” was cut to shreds—all in the name of “justice.” By the time it was over, any citizen-juror who was naïve to the reasoning for such a high standard of proof was left to conclude that some degree of doubt was the inevitable result in any presentation of evidence. The prosecutor left the distinct impression, if not overt irrefutable conclusion, that it would be absurd to think no one could be convicted in the presence of doubt.
Alarmingly, in his explanation of this time-honored principle, the prosecutor made no distinction between “reasonable,” “unreasonable,” or any other kind of doubt; rather, he suggested that elimination of “doubt” is impossible, and that “doubt” inevitably exists in all determinations one makes in life. Clearly, in his view as an official representative of our great State, “doubt,” reasonable or otherwise, should not pose a stumbling block on the road to “justice.” Interestingly (and in my opinion, tragically), the “defense” attorney sat silent. The prosecutor then cut against another treasured principle of justice by asserting that we were there as jurors to ultimately decide if the defendant was guilty or “innocent” (which, of course, is a wrong statement of the law). Again, the defense attorney sat silent.
As a former federal prosecutor of over ten years, I wondered why this prosecutor felt it necessary to effectively minimize the State’s burden of proof and cut against what clearly our forefathers felt necessary to protect against injustice. Did this prosecutor fear that the quality of his evidence traveled dangerously close to the cliff of loss? I wondered whether the “win” became more important than the principles of justice on which our country was built, and therefore minimizing our treasured bedrock of justice seemed appropriate and necessary. Why not embrace the spirit of justice that is the foundation for this standard of proof, and confidently assert that his proof is more than sufficient to prove guilt? Sure, there were others in the courtroom who could have voiced an opposition to the prosecutor’s explanations, and indeed our “adversarial” system depends on the opposition to voice objection. But I wondered, was exposing these misimpressions to non-informed citizens the best way to reach the intersection of justice?
I wonder whether the “win” we all pursue becomes more important than the principles on which our country was built— indeed, the principles on which our Bible was written. Principles such as that found in Genesis 18 and Exodus 23, where the system of law prioritized the protection of the innocent from punishment. This is the same principle later reinforced by forefathers John Adams (“it is more important that innocence be protected than it is that guilt be punished”) and Benjamin Franklin (“it is better 100 guilty persons should escape than that one innocent person should suffer”), and later recognized by our nation’s Supreme Court as a principle inherent in our Constitution.
It would be good if my experience in jury selection was unusual, but unfortunately I’ve seen this form of antagonistic, adversarial approach many times before. We hear prosecutors and defense attorneys sarcastically and derogatorily referring to the other as a member of “the dark side,” even though both faithfully seek light and understanding from the same Bible and worship the same God. An attitude of antagonism, distrust, and opposition too often pervades their dealings and affects their arguments in court. All too often, opposing attorneys travel down the same exhaustive parallel tracks toward a perceived goal of justice, yet still remain separated by a chasm void of mutual understanding or empathy.
I have a feeling that the juxtaposition and proximity of the lives and deaths of my friend Jimmy and the honorable Chip, their faith, and their passion for justice is too much to overlook. I believe the convergence of their passion and spiritual devotion is closer to the intersection where I should live—where we all should live in our advocacy. I am not for overturning our adversarial system. Rather, I am led to move forward, evolve, and develop a deeper understanding, and continue to examine how I and others can travel our respective tracks with a different perspective. A perspective that weighs heavily toward a more meaningful and active understanding and empathy for the position and argument of our opponent and for the principles on which justice rests.
Where an advocate consciously and intentionally seeks, understands, and appreciates where justice rests in the opponent’s position and incorporates that into advocacy and counsel. A part of me wonders whether such a perspective would betray the zealousness with which we are required to operate and think. But quickly I dismiss the thought. For I believe that justice allows, and indeed mandates, consideration and empathy for the other’s position. And not just a meaningless nod of recognition, but rather a meaningful mutual awareness that we are all traveling toward the same intersection and an intentional weaving of such awareness into the fabric of our craft.
I believe I should examine the lives and work of Jimmy and Chip in the conjunction, and know that there lies in their duality a lesson for me and us. Rather than life in the parallel universe, we seem to have fallen into a lesson about advocacy; about life; and about Biblical and American justice. So, I pose the question: In the wake of their passing, should life in our criminal justice system ramble down the same parallel tracks as before? Or can we draw deeper meaning and lesson from this interesting proximity of life and death?