It takes two to tango. Who could deny it? Have you ever seen anyone dancing the tango, or the fox trot, or the waltz, by himself?
Would you buy a ticket to a fight if the fighter entered the ring and boxed or wrestled with himself?
And yet there are instances of fights against nobody: the War on Poverty is an excellent example. Poverty seems to be winning, but perhaps that is only because we don’t really know who is “fighting” whom. Or similar wars on hunger, on ignorance, on discrimination, etc. Lawyers may fight against injustice, perhaps, but in that case, the “fight” is not symbolic or metaphorical, but real. The result can be fatal. And yet, the opponent, in many cases, simply does not exist.
For example: Perhaps you saw the televised trial on a Florida woman accused of murdering her child. Who was her opponent? Against whom was she fighting? The State of Florida! The plaintiff was a geographic area!
To a non-lawyer, such as myself, this is bizarre. Yet it is never questioned, perhaps because lawyers owe their license, and thus their living, to the permission of the state. I suppose an intrepid pro se litigant, accused of a crime by the state, might initiate the following colloquy.
Defendant: Your honor, I am not a lawyer, and would appreciate some advice before we get started here. Can you help me?
Judge: What do you need to know?
D: Just exactly who is my opponent in this case?
J: The state of Missouri (for example).
D: Do I get a chance to cross-examine my accuser?
J: Of course.
D: Well, judge, how do I cross-examine Missouri?
J: (smiling) Missouri is represented by Mr. Sly, the prosecutor, seated over there.
D: So Mr. Sly is representing a place on a map?
J: No, no. I’m sure you know better than that, sir. Mr. Sly represents the PEOPLE of Missouri!!
D: Which ones?
J: What?D: I said, “Which ones?”
J: All of them. The people of this state elected Mr. Sly to represent them in cases such as this.
D: Then is Mr. Sly the plaintiff? Can I cross-examine him?
J: No, of course not. Mr. Sly is the lawyer for the plaintiff.
D: Well then, sir, I’m more confused than before. How can I cross-examine my accuser if my accuser is all of the people of Missouri?
J: Mr. Sly will introduce witnesses, whom you may cross-examine.
D: So the witnesses are my accusers?
J: Well, no, they’re not. The people of Missouri, through Mr. Sly, have accused you.
D: Well, judge, with all due respect, I think it safe to say that, until this case became broadcast on TV, 99% of the people of Missouri never heard of me, and probably almost as many never heard of Mr. Sly. Are these people who accused me here in the courtroom for me to cross-examine?
J: You don’t seem to understand. I’ll explain it once again: The people of this state, through their elected attorney, have accused you of this crime. Mr. Sly will be their lawyer in this trial. It’s as simple as that.
D: Well, I’m not sure it’s simple, sir. In the first place, the people of this state, at least the majority of them, did not vote for Mr. Sly. I don’t know the election results, but I’d bet a year’s salary that a majority of Missourians did NOT vote for Mr. Sly. Therefore, he does NOT represent the people of this state, but only some of them, and a minority to boot. And, as I’ve mentioned, before this case went national, no one knew of me or this case. I’ll agree that I am not being sued by a geographical area, but if my accusers are flesh and blood human beings, I would like to know who they are.
J: This is not some trivial matter, sir, such as damaging someone’s property, or punching someone in the nose. In serious cases such as this, it is the responsibility of the state, through its attorneys, to see that justice is done. That is what we are trying to do here. You are accused of a serious crime, sir!
D: Absolutely, judge, which is why I’m concerned about my right to confront my accusers, who seem, at least to my non-lawyer eyes, to be anonymous. If I have harmed or damaged or injured anyone or anyone’s property, why are they not here to testify against me, and be subject to cross-examination?
J: You are beginning to try my patience! This is a perfectly routine matter. You are accused of a serious crime, and the state, represented by Mr. Sly, is your accuser.
D: OK, then. I’m not accused by a geographical area, and the people of the state can’t have accused me, since they knew nothing of this affair until a few days ago, so my accusers must be a group of people calling themselves “Missouri,” or “the state,” right?
J: I won’t argue with you. If you want to believe that, go ahead.
D: Then how did this group gain standing?
J: What? How’s that?
D: In order to bring someone to court, especially on serious charges, mustn’t you have been injured, or harmed, or damaged in some way?
J: If you’re claiming that you haven’t harmed, injured, or damaged anyone, then this trial is your chance to prove it.
D: Gosh, judge, it sounds like I have to prove my innocence. Isn’t it supposed to be the other way around?
J: Of course. Mr. Sly’s job is to prove his case. You don’t have to prove anything.
D: Then will he do that by introducing witnesses who can testify that I damaged, injured, or harmed them in some way?
J: He will, I presume, introduce witnesses who will give evidence that you did exactly that, although not to them. They are merely witnesses, not victims.
D: But these witnesses will not be my accusers, and so the question remains: How can I cross-examine my accusers?
J: Your persistence with this line of questioning reveals, sir, your serious need for legal counsel. I would most sincerely urge you to hire a lawyer.
D: You mean an attorney who is a member of the bar, and licensed by the state?J: Exactly. You need an attorney.
D: Then you want me to be represented by someone who owes his living to the same individuals–“Missouri”–who are my accusers? Isn’t that similar to appointing the fox to guard the chickens against the raccoons?
J: (rising) Mr. Sly, I’d like to see you and the defendant in my chambers at once.
We’ll never know what happened in chambers, but when the defendant emerged, he looked shaken, and remained silent for the remainder of the trial, which was quickly over, with a speedy conviction, and lots of pictures of Mr. Sly on TV and in the newspapers. I guess it was a victory for some kind of justice. Or maybe, since this scenario takes place in my mind, the “defendant” will leave the courtroom and an angry judge will call the next case!
Say, what if the plaintiff was the United States? Can’t you hear the hapless defendant saying, “I’d like to cross examine Nebraska, your honor.”
And how about: “If the people are my adversary, and they pay Mr. Sly, then who pays you, your honor? Can I be guaranteed impartiality when the judge is on the payroll of my accuser?”
That question will be asked by a duly licensed attorney when you can dance the tango by yourself.