Professional Responsibility

Seymour Wishman on His Mentor, Judge Barrett

<1> Wishman tries to explain his treatment of Mrs. Lewis by way of what he learned about being a lawyer from his time with Judge Barrett. Paradoxically, Judge Barrett, as Wishman knows him is "a gentleman of humor and intelligence and decency," who had a "sense of justice." Wishman goes on to note that the judge was, of course, "guided by statutes and opinions of higher courts, but the details of a case often required interpretations that could be made only by relying on his personal convictions." Wishman admires Judge Barrett because of these convictions and the way he struggles "with the more profound human questions" which he answers "with a consistency that seemed well- considered intellectually and satisfying emotionally." Wishman describes Judge Barrett as a man of "integrity and conviction," and he wishes to be that kind of man himself. [all quotes at p. 7]

<2> Judge Barrett, Wishman tells us, is a man of character, a man who is intelligent and decent, emotionally stable, has a sense of humor, and has strong personal convictions and integrity. He is a religious man and a gentleman. Judge Barrett looks to be a paragon of virtue. Wishman fantasizes that if he were more like Judge Barrett an incident like that with Mrs. Lewis would not bother him as much as it did. Wishman admires Judge Barrett for "his ability to prevent difficult and, at times, harsh decisions from disturbing other parts of his life." [8]

<3> Looking to Judge Barrett as a guide, Wishman tries to imagine what he would do if confronted with a situation like the one with the enraged Mrs. Lewis. If Mrs. Lewis had been screaming at Judge Barrett, Wishman says, "[h]e might have discussed her 'in the context of the larger issues involved and the obligations of vigorous advocacy in our adversary system.'" [9]. And even if Judge Barrett had been "personally distressed" at the encounter, he would have been far less distressed than Wishman. The reason, Wishman suggests, is that Judge Barrett had a "dispassionate perception of the adversary system as an inherently worthwhile, if at times flawed, institution. . . ." [9]. One might pause here and ask whether this element of Judge Barrett's character is truly admirable or merely functional.

In response to the trial judge's reluctance to help Wishman reassess the defendant's guilt in the Mace-spraying case, Wishman speculates about what Judge Barrett would have done. He thinks that Judge Barrett "would have maintained that legal ethics required me to continue the prosecution of the case, leaving it to the jury to make the final decision about guilt." [13]. How does this response follow from what we know about Judge Barrett? Wishman explains his own actions by viewing them as a response to his fear that an innocent man might be convicted. It was "too upsetting from a personal standpoint." [13]. Judge Barrett, more skilled at isolating his professional (and legalistic) frame of reference, could analyze matters such as this (and even an incident such as Wishman's with Mrs. Lewis) so that his response does not appear to be a "personal" one. Wishman observes that Judge Barrett would have continued the prosecution distinguishing between "the possibility of his innocence" and a "substantial belief" that he was innocent. Since Wishman had only the former, legal ethics would not demand that he seek to have the conviction overturned.

<4> The interesting thing about Judge Barrett is that what he does as a judge and what he believes are thoroughly compartmentalized. For example, Wishman tells us that Judge Barrett

believed our penal system was inhumanely harsh, yet he sentenced defendants to long periods of incarceration. He held no higher value than the sanctity of human life; yet I watched him impose a death sentence without any apparent emotional conflict. And because a police officer had failed to knock on a door, I saw the judge, without hesitation, dismiss the case against a brutal rapist. [7-8]

And how does Wishman explain the Judge's actions?

Judge Barrett believed in our system of justice, in its principles and its process, to such a degree that his commitment to that system required and allowed him to put aside any other personal feelings about a particular case. [8]

How, one might ask, would it be possible to do what Judge Barrett does, to act without regard to one's own feelings? [See Wishman's account of how he deals with personal feelings, id. at 225-246]. One can certainly imagine the necessity to do what Judge Barrett does in particular instances. The Constitutional requirement of a search warrant violated by police officers in their zeal to arrest the murderer may indeed require that the evidence obtained incidental to the arrest be suppressed. Outraged as we may be by the possibility that a murderer go free because of a mistake by the police, our outrage could equally be directed at the police for making a senseless mistake.

<5> Compare Judge Barrett with the trial judge in the rape case in which Wishman humiliated Mrs. Lewis. Wishman notes that after the trial, the judge had told him that he "had dealt with this woman [Mrs. Lewis] 'brilliantly.'" [18]

<6> Is Wishman's "confession" a warning against the kind of compartmentalization that Judge Barrett has perfected?

Wishman confirms Judge Barrett's compartmentalization of professional and personal life when he attends a Jesuit retreat with his revered mentor:

I watched him speak to his God with deep devotion, and I learned that he attended church every morning. Up to that point, which was near the end of my year of clerking, I had no idea that he was religious. When I asked him if he felt his religious commitment to love and forgiveness and humility created any personal conflict with his work as a judge, he said he had no difficulty reconciling his religious and professional lives. He believed he was doing important work in trying to balance society's interest in deterring criminal behavior while at the same time protecting the rights of people accused of crime. [8]

Judge Barrett has so compartmentalized his professional practices and personal beliefs that he can cut himself off from his personal feelings and give harsh prison sentences and impose the death penalty without regard to his own beliefs, beliefs that might help him see how injustice can sometimes disguise itself in the name of the law.

Has Judge Barrett's compartmentalized life undermined his ability to be a just and wise judge?

Wishman admires Judge Barrett and envies "his ability to prevent difficult and, at times, harsh decisions from disturbing other parts of his life." [8]. While Judge Barrett's beliefs (religious and legal comingled) gave him "the strength to do the harsh things his job required," Wishman does not possess the faith that Judge Barrett has in the system. How does Wishman's sense of social injustice in the inhumane treatment of prisoners during incarceration and his distress over the encounter with the rape victim, Mrs. Lewis, set him apart from Judge Barrett, the man he so admires?

| Wishman on Compartmentalization |

<7> Given Wishman's description of Judge Barrett and his moral stance, what concerns you most about his character? Is Wishman's admiration for Judge Barrett misplaced?

<8> Compare Judge Barrett to Charles Reich's description of Justice Hugo Black, who Reich served as a Supreme Court clerk:

I lived on the ground floor of the Justice's eighteenth-century house in Alexandria. We had breakfast with him in the kitchen, lunch with him in the public cafeteria at the Court, and dinner back home in the elegant old dining room. From early morning until bedtime we talked about the Constitution and the Bill of Rights. I found in Justice Black a person who had a total faith in the fundamental principles of justice. He carried the Constitution in his pocket as if it were the Bible. He was a warm and unpretentious man, and he made us two law clerks his sons for the year. He showed us how to wash dishes "right," but always did most of the dishes himself. He cooked steak country-style on Sunday. He told us not to drink or smoke while pouring himself a drink--because liquor couldn't hurt a man at his age. . . . He was always trying to tactfully improve my driving. He made us look up words in the dictionary.

Hugo Black was an authentically great man. In a city that lived by display, power, gossip, and publicity, his way of life was simple and old-fashioned and wholly without artificial trappings. Each deputy assistant secretary of defense might have a chauffeur and a limousine; Justice Black drove his own old green Plymouth. He loved peace and quiet and a few choice friends. He did his own studying and thinking, and wrote his own opinions, sending to the Court library or the Library of Congress for books as he required them. If a phrase in the Constitution needed to be understood in the context of history or philosophy, he thought every issue through from the beginning. In a world that was "realistic" about power, Justice Black was passionate about justice for each individual, no matter how inconsequential the person might seem to the world. He was utterly uncorrupted and incorruptible. He was powerful because he possessed the power of love--love of the Constitution, of justice, of democracy, of the people, of his family and friends, of his country. While other judges and lawyers often thought primarily about abstract rules and regulations, the first thing Justice Black saw in a case was the human being involved--the human factors, a particular man or woman's hopes and suffering; this became the focus of all his compassion and indignation.

[Charles Reich, The Sorcerer of Bolinas Reef 22-23 (New York: Bantam, 1977)]