A month ago today, I lived out a peculiar life-long dream of
standing on Cleveland's Public Square to deliver a speech. The opportunity arose in conjunction with the
Republican National Convention, when the City of Cleveland announced a
"Speaker's Platform" would be constructed in the heart of downtown,
to allow any citizen to pull a permit to speak for half an hour, respectable
amplification provided.
A few days before, I received a phone message from a
misguided Time Magazine reporter, asking to call back and talk about "what
my group was protesting." In
truth, I had no idea how I'd fill the
time allotted, but my agenda was so nuanced and personal that I never called
back; clearly, it would be a speech that did not conform to the reporter's
preconceived notions. Or anyone else's,
for that matter. My wife and several
friends probed, but I was circumspect.
How could I explain a speech that I hadn't yet delivered?
Public speaking is, as they say, second nature to me. Perhaps, it's first nature, if there is such
a thing: I deliver speeches in public
nearly every day as a public defender in the courtrooms of Cleveland, often
impassioned pleas for justice and/or mercy for the impoverished criminally
accused, nuggets of persuasion crafted for a particular client and audience
(i.e., a judge or jury). Speeches with
lofty purpose, emanating from Constitutional foundations, with a singular goal
of effective Assistance of Counsel. But
the speech I would deliver at 10:15 a.m. on July 18, 2016, in the newly-transformed
Public Square would, instead, be, singularly, for me.
I had in mind something grand and unusual: an oratory
triptych composed of three distinguishable parts, like a garish Hieronymus
Bosch painting sliced into thirds, filled with strange, novel ideas. But while Bosch's crazed visages were
tethered by spiritual awakenings, mine would be tethered by principles of free
speech, of pubic service, and a love of Cleveland.
I began the speech as I promised myself I would:
"HELLO, CLEVELAND!", a cinematic allusion that, to me, sounds
preposterously funny though a public address system. I improvised an introduction, calling for
peace in the streets of Cleveland as the volatile Republican clown car passed
through town. I talked of my admiration for the new layout of Public Square,
emphasizing the placement of statues of Tom Johnson and Moses Cleaveland, now
locked in an eternal staring contest (duel?), with two very distinct agendas of
their own: Johnson, the beloved turn of the century mayor whose public service
inspired, versus Cleaveland, the surveyor and private profiteer who
"discovered" and founded the city on Lake Erie but took no part in
its future.
Somehow, I started riffing on The Poseidon Adventure, and
how Shelly Winters' Mrs. Rosen fulfills the same role as Bing Bong in Disney's
Inside-Out. In retrospect, i think the point seemed to be that I was Gene
Hackman leading a brave troupe through an upside down world. ("Don't listen to that old priest who
looks like Jack Albertson! He's headed the wrong way!") HA!
Perhaps my words would right the Poseidon after all.
Then, I began the speech in earnest. (Borgnine?) I promised a poetic benediction that would
also offer riddles to hidden locations in Cleveland. I mentioned
psychogeography and geocaching:
"It's like Pokemon Go, except with cool places for the clever
listener to discover." And so the
first third of my oratory triptych began:
Annunciation: Clevelandia
The world is recreated
a billion times a day
by Google maps
and Jesus traps
and souls above the fray.
These words are scored in stone
upon the rocky shore:
"He is faithful."
"He is faithful,"
is what the words implore.
The water washes sins away
as hands and face we clean,
Annunciates
Greek palindrome
in church tiles' waxen glean.
The weighted Dame leans overburdn'd
by Clair and Lakeside door.
her scales are tipped,
unjustily gripped,
which makes her feel a whore.
The Thinker and his Shadow
are never far apart,
tho Shadow's feet
and his don't meet
upon the stairs to art.
The freedoms, four, are buried here
beneath this hallowed ground.
from: fear and want,
of: speech and faith,
feed flowers more profound.
I made clear to my audience that each of the five last
stanzas leads to a very important place in Cleveland, "not a scavenger
hunt, but a spiritual hunt" with rewards commensurate with their
discovery.
* * * * *
I moved on to the centerpiece of my speech: a transcription
of a favorite closing argument in what may be my only true "First
Amendment win" in front of a jury:
Verbatim
"Closing argument, Mr. Bloomsday?" the judge asks.
Bloomsday pushes himself up from the chair next to his
client, and asks to approach the bench. He quietly requests to take one of the
individually wrapped peppermints she's been offering the jury throughout the
trial. "Of, course," she says. He picks one out of the dish, holds it
up, approaches the jury, and sets the mint down on the front of the juror's box
with mysterious flourish.
"Ladies and gentlemen, I really have an eye toward the
clock here. And if I've appeared to be long-winded, I'm going to do my best not
to be, now. I'm not even going to bring in the dry erase board and do my famous
Dick Goddard impression of doing my weather map, here. I'm just going to talk
to you.
"I mean, what I want to do in the next -- I'd say,
hopefully, 10 to 15 minutes, maybe less, is give you -- what's the word...a
mental blueprint of how I think you should rule on what you endured for the
past couple of days, here.
"Let's, first of all, start with the burden of proof.
Understand, this is not a fender-bender, this is not a civil action where you
listen to both sides and decide which one you like better. This is a criminal
case. And in a criminal case, I have no burden of proof. The defendant has no
burden of proof. I don't have to prove anything. All I have to do is convince
you that the City has failed to meet their burden of proof. The defendant and I
could sit over there, and look at pictures of herself, or do a crossword
puzzle. If they haven't met their burden of proof, your verdict must be not
guilty. So, I just want to be clear about that with you.
"I also want to be clear -- and we talked about it
initially -- this notion of what is the burden of proof? And that burden, as
the court has explained, is evidence of guilt that is beyond a reasonable
doubt. And what that means is that the
City has to prove each and every essential element in a manner that satisfies
you. It's the nature and quality of
evidence that you would rely upon in the most important of your own personal
affairs. That's the definition as you
heard once before, and you'll probably hear again from the judge, that evidence
of guilt is proof beyond a reasonable doubt.
"So, that's the preliminaries. If you don't follow those two steps, then you
have violated your oath -- let's put it that way -- and you have sworn to God
that you would, individually and collectively, follow those steps in your
deliberations.
"There's really two broad points that I wanted to make
here. One is, I should say preliminarily,
I don't pick my clients. They come to
me. And you may find my client annoying,
or whatever, or eccentric, but that's beside the point. It really is. The point is, has the City met
it's burden of proof?
"But I have to tell you that -- my personal situation
leads me to say something went really, really wrong here. And I think we could hinge that moment as the
moment when someone from The Plain Dealer gives my client their home phone
number. No one is on trial for
that. I'm not suggesting that somehow
she wasn't doing anything other than trying to be accomodating. But it clearly unhinged the situation in a
way that, you know, we've had to endure.
But for that moment, I think, maybe we wouldn't be here because as one
of the prosecution witnesses testified to, there was a better way to do this, I
suppose, in their mind, and that is to just delete the voicemail messages and
not bother responding.
"It may come as a surpise to know that I've been
involved in criminal cases even since I was a child, and that's because my
father was a criminal defense lawyer, too.
And I would have to tell you something really peculiar about my
childhood, and here we go.
"My father represented a horrible defendant, a rapist,
who had raped little children. And the
mother of that defendant, circa 1970's or whatever, '76, 77, used to call our
home, repeatedly, every night. But back
in the '70's if you remember, the way the phone worked was a lot different. If someone called you, back in the 70's, and
you hung up on them, if you picked up your phone again, you still couldn't make
an outgoing call. You couldn't call out again until the other party hung up. At
least, that's the way our phone worked.
"So, the only way, in our house, that we could deal
with this problem with this lady calling, rambling this, just, you know, hate infused speech
toward my father, was to set the phone down on the kitchen counter, and just
let her talk until she was done. And,
you know, it kind of became a joke, frankly, I'm seven or eight years old. And here is this lady, screaming on the other
end of this phone, you know, complete nonsense.
I mean, accusatory and saying horrible things about my father and family
and whatever. But the fact of the matter
is that my father's response was just give her her due, let her speak, and she
will get tired, and that's the end of that.
"Well, that's been sticking in my head through this
trial. And it's because of the
newspaper's response to what happened here -- I have made no bones about the
fact that I think that the editorial board of The Cleveland Plain Dealer that
is, for all intents and purposes, collectively and/or individually and/or
jointly and severally the victim in this case, that's important to this case.
"It's not someone calling any one of you, individually,
hundreds of times. It is someone who is
calling what I think has been described as, you know, the last bastion of free
speech in our society, at least in Cleveland, as it relates to a
newspaper. But the fact of the matter is
she's calling the highest point in the dissemination of ideas in our
society. And I would say that that
should go into your deliberations of whether she's guilty of harassing The
Cleveland Plain Dealer by filling up their voicemail message boxes ranting
about corruption, reform, and our city's only newspapers hand in those
matters. I don't know how, but I think
it is relevant. And I think that, somehow,
this thing spiralled out of control for no other reason than somebody got scared
that this lady was going to do something harmful. Is it relevant to your determination that my
client never once, according to the testimony of the prosecution, called that
employee's home phone number that the employee gave my client in some strange
attempt to coax my client to provide her own?
I think it is.
"I think it suddenly directs my client's efforts in a
way that dovetails with the other part of this that I wanted to talk to you
about. And that is the elements of the
offense. I made it clear throughout this
trial that, when you consider the elements of the offense of telephone
harassment, the word "sole" or "solely" is important. And I don't know if you are going to get any
special definition of "sole," but as a practical matter, we're talking
about "only." Theonly purpose
that she made those dozens, maybe hundreds of calls was to break the law.
"And I gotta tell you, I do have a dispute with my
client about one point. That is, she
says that this statute that she's charged with is unconstitutional. I say it's not. I say it is constitutional. I say this statute doesn't interfere with
free speech. This statute doesn't impact
someone's First Amendment rights because of the word "sole."
"If I call you a hundred times to let you know that you
sold me a lemon car, Mr. Used Car Salesman, and I want my money back, that's
not for the sole purpose of harassing somebody. It's for another purpose, it's
for an additional purpose. And I'm not
going to spend much more time trying to tell you what that purpose was. You could divine whatever purposes you heard
in this testimony from her.
"But I would submit to you that the City has failed in
its burden of proof to prove each and every essential element, specifically,
that she made these phone calls solely to harass these people. She did it because she needed to express
herself in a way that, you know, maybe a psychologist would say is deeply
rooted in that letter to the editor that she sent to The Cleveland Press and
got published way back in her childhood.
Who cares? That's beside the point.
"The point is that the City did not prove to you that
the only reason she called these people was to harass them.
"Now, I think I'm about to make history here as it
relates to my time limit, here. And I believe
it comes to this." Bloomsday picks
up the individually wrapped peppermint that he set on the jury box moments
ago. "Do you know what this
is?" He holds it up. "This is a mint. And I'm going to make a million dollars with
a new idea called The First Amend Mint.
They give you fresh breath while you harass and annoy others around you!
"And I ask that when you return your verdict, that you
have that First Amend Mint on your breath." Bloomsday sets the mint back
down in front of the jurors. "Thank
you for your time."
He walks back to the defense table and falls into his
chair. The prosecutor gives his close,
but Bloomsday isn't listening. His work
is done. He closes his eyes as the judge
instructs the jury. As the jury leaves
the courtroom to begin its deliberations, Bloomsday stands up and instructs his
client to do the same. He glances over
and sees that the mint is now gone.
* * * * *
Finally, I took to the third and final part of the speech: a
strange blend of literary analysis and confessional about my experiences in the
courtrooms of Cleveland:
A Descent Into The Maelstrom
My favorite story by Edgar Allen Poe is a surprisingly
harrowing tale about the force of Nature. No supernatural plot point, no
plunging the depths of human depravity. It's a story about brothers caught in a
whirlpool off the Norwegian coast. There's a narration trick, for starters. The
initial protagonist becomes a mere listener for the remainder of the story,
after he visits the site of a notorious recurring maelstrom with one of it's
only survivors.
The description of the watery destruction scrapes my psyche
for some reason. Perhaps it's the absence of villain, the futility of escape,
the visage of ships and brothers disappearing into the vast, unstoppable watery
swirl. It's unlike any other scary story I've ever read.
But there's more. There's a solution to a puzzle, a mystery
solved, that saves the life of the storyteller. Suffice to say that modern
concepts of pattern recognition and situational awareness are keys to survival.
That, and choosing the right piece of wood in the churning sea to hold onto.
I often think of the story as I stand in the center of the
crowded, seething, stinking courtrooms of the Poverty Capital of America, where
I beg for justice and mercy for the poor, as my father did before me before he
died of a liquor-soaked, broken heart. I clutch the podium provided, and hang
on for survival.
I watch for patterns in the behaviors of judges and
prosecutors and cops and clients. I pay attention to the cameras and
microphones and watch my every word. I note the presence of people in the
gallery behind me, I expect they are gauging my persuasion, my character, with
each poor meat patty in the prison/industrial complex fast food restaurant I
represent, until it's their turn to stand with me at the podium.
I think of my own solution to the puzzle, my own mystery
solved, that grants me an almost beatific buoyancy amid the swirling eddy of
despair and prejudice and ignorance and addiction and incompetence and
corruption that nearly engulfs me each day.
The solution is this: Courtroom Classroom Theater Church.
And I have wisely chosen the right piece of wood.
* * * * *
So, that was the speech I delivered on Public Square, a dream fulfilled. Let the record books note, I was the first speaker scheduled to address the crowd during those tense and tumultuous days in Cleveland. At least, the first speaker scheduled who wasn't arrested.
I hope both Hieronymus and Hackman would be proud.
I hope both Hieronymus and Hackman would be proud.
