The Golden Thread In the Law
Recently, I filed an amicus brief in the United States Supreme Court. The brief was critical of at least three Circuits who substituted their own policy choices for that of the Congress in order to impose liability on who they assumed had to be guilty regardless of the evidence. In my concluding remarks I pointed out that this was not merely reversible error; it was judicial conduct that threatened the legal system itself.
Where had this notion come from—the idea that judges and courts could not be trusted. The answer occurred to me today when a friend alerted me that John Moritmer had died. For those of you who do not recognize the name, or that of Horace Rumpole of the Bailey, you have missed an important lesson in what is required for our profession to function properly, a good dose of skepticism.
For Rumpole and Mortimer, the golden thread in the law was the presumption of innocence. Although that concept is associated with the criminal law, those of us in the defense bar that who fought to restrict the environmental movement to good science believed a similar presumption should apply in the civil law. In Re Bell Petroleum, the lawyer for defense said to 5th Circuit, referring to a case of mine, that preceded Bell, United States v. Alcan, that before Alcan the Justice Department would introduce themselves in Superfund cases as follows: “If it please the Court, I am John Smith, attorney for the United States and I win.”
For those who have enjoyed the adventures of Horace Rumpole, one cannot miss the similarity in the judicial experience. Judges assisted the prosecutors. Guilt was presumed by the established legal community, outwitted only by the persistence of Rumpole who shunned all the attributes of rank and prestige that the profession had to offer to seek a more noble aim, often for little in the way of recognition or reward. Rumpole appeared to have no aspiration to obtain silk, judicial posts or wealth; he measured success by some inner sense that he was striving to do what he felt was right.
This notion could do with some renewal today. It was an inspiration to me and we all should mourn the loss of John Mortimer and his creation, Horace Rumpole of the Bailey.
