Still more

It is a bold claim for any defense lawyer to make, in any case. It was especially bold in this case, which involved same-sex phone-sex.

Years earlier, my then-quite-young-and-poor client had met a not-poor, then-in-the-prime-of-his-life man. For decades they were often apart yet still in touch, often communicating by phone. By the early 1990s the elder man was quite elderly. His grown daughter discovered the still-continuing phone calls, and the consequent transfers of her father’s funds. The discovery spurred shock, then outrage, and then a federal complaint, trial, and conviction.

The trial transcript indicates that many in the courtroom found the underlying conduct and calls (the sexual content of which was discussed in graphic detail) distasteful, perhaps even repulsive. Perhaps it was for that reason that the prosecutor forgot to elicit any evidence of an essential element of this charged violation of the Hobbs Act; in this extortion case, to be precise, the prosecutor forgot to elicit even a scintilla of testimony to the effect that the alleged victim paid money out of fear.

It was my position that this utter failure to prove a material element of the offense compelled reversal of the conviction:

“The defendant before you is an innocent man.”

On hearing these words, 2 on the panel looked annoyed – no surprise given the overall tone of the case. But the 3d sat up straight and began asking questions. It was Judge Noonan, a Berkeley Law professor and noted scholar of law and Catholicism, whom President Ronald Reagan had appointed to the 9th Circuit in 1985. Noonan’s questions and my answers eventually produced the passage quoted above, published in dissent from the panel majority’s decision to sustain the conviction.

Anyone who has practiced federal criminal defense will understand this as a kind of victory, despite the larger loss of the appeal.

I met Judge Noonan in person not long after, in a lunch arranged by my supervisor, then-Federal Public Defender Barry Portman, another giant in the San Francisco federal courthouse. Only then did I learn that the question of when – even whether – words alone can provide the basis for criminal punishment was an issue with which the judge long had grappled. His thoughts gelled in one of his several significant writings, Bribes: The Intellectual History of a Moral Idea (1987). (Other works inclined toward legal history and philosophy, among them his masterful book-length case study, The Antelope (1990).) The judge was erudite, a gentleman – even courtly – and I was honored to have met him.

When I entered academia, Marsh joined the repertoire of practice stories I deployed to engage my Criminal Law classes. The experience stayed with me – and long after the decision, I learned that this lingering effect was not mine alone. A student alerted me to the following passage in a symposium piece, “The Foxboro Referee, the Boston Judge, the County Juror, and the Conscience of the Court,” 2003 U. Ill. L. Rev. 1403:

Call it the heart or the spirit or the inner person, there are in each of us perceptions and convictions that cannot be reduced to rules external to us. It is that internal core of the judge that a good advocate seeks to reach. “I represent an innocent man,” declared Diane Marie Amann in a criminal appeal I heard argued six years ago. I had never before heard such a claim. It spoke to something in me more tellingly than a reference to due process of law would have done. It set in motion thought and action …

The author, of course, was Noonan, discussing judges’ professional responsibility.

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