Judge David Bazelon’s activist approach to indigent criminal defense

4.2.12 WC: 191694 controversies, such as a railroad accident or a conventional contract dispute, into monumental legal decisions. Judge Bazelon did the same with regard to criminal cases, especially those involving defendants who could not afford an adequate defense and those with serious mental illnesses. He would ask his clerks to scour the records of cases—even those not assigned to him—for evidence of injustice. He told me that most indigent defendants—and most defendants in DC were indeed indigent—did not have adequate lawyers: “You're their lawyer of last resort,” he would tell me. “Search the record for errors. Tell me if you find any injustices.” “But the case isn’t even before you,” I would protest, or “there were no objections and so the issues aren’t properly preserved for appeal.” “No matter. We will find a way to secure justice. Your job is to find injustices. My job is to figure out a way to bring about justice.” He told me about a conversation between the great Justice Oliver Wendall Holmes and one of the justice’s law clerks (who were called “secretaries”). After the justice rendered an opinion denying relief to a morally deserving litigant, the clerk complained, “But Mr. Justice, the result in this case is unjust.” To which Holmes reportedly responded: “We’re in the law business, young man, not the justice business.” David Bazelon was in the justice business, though he used the law—sometimes stretching it beyond existing precedent—to bring about what he regarded as a just result. He was a “judicial activist”, at least when it came to doing justice to the poor, the disadvantaged and the sick, and proud of it. That catch phrase had not yet become a term of opprobrium, as it has to so many today. I was proud to assist my activist judge and eagerly pursued my assigned task of searching for injustices. I recall telling Bazelon, who was Jewish but not well educated in Jewish religion tradition, that the Torah commands not merely that we be just, or even that we do justice, but rather that we actively pursue justice, as if injustice never rests. The exact words of Deuteronomy—which I recalled because I recited them in my Bar Mitzvah portion—were “Justice, justice, you must actively chase after.” The traditional translation “pursue” doesn’t quite capture the essence of the Hebrew words, “Tzedek, Tzedek, Tirdof,” since “Tirdof,” comes from the root that means to run or chase after. Bazelon asked me to make a sign for his office with these words, in Hebrew and English. He quoted them frequently in defense of his activism. They became his mantra, as they have become mine. The sign now hangs in my office. Another example of the good that has come from my not- so-good Jewish education! The other good lesson—this one taught by Bazelon to me by example—was that justice requires some degree of compassion. 52 HOUSE_OVERSIGHT_017139