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Main Index
Index:
* DEVELOPING, IMPLEMENTING AND MAINTAINING A YOUNG LAWYER ORGANIZATION
* TEACH ABOUT
THE ROLE OF LAWYERS, JUDGES AND DEFENDANTS
IN THE CRIMINAL JUSTICE SYSTEM
* DEVELOPING, IMPLEMENTING AND MAINTAINING A YOUNG LAWYER ORGANIZATION
The Guideline is based on the ABA Young Lawyer Divisions YLD Leadership Academy Handbook and addresses the points raised at the meeting of the Young Lawyers Committee at the IBA Congress in Chicago on September 20, 2006. The purpose of the Guideline is to assist new Young Lawyer Organizations (YLO) address many issues raised by the development, implementation and maintenance of a YLO.
I. OVERVIEW
Starting or reactivating a YLO can be complicated, overwhelming and time consuming. However, the potential benefits of a YLO to the community and its young lawyers will likely outweigh the initial difficulties of developing the YLO.
The first item to consider in starting or reactivating a YLO is whether the community has had a YLO in the past and, if so, the failures and successes of the old YLO. A historical review of the YLO will help you avoid past failures and reinventing the wheel. Secondly, consider the reasons and justifications for having a YLO in your community.
Do factors and needs exist in the community that will allow the organization to be successful? For example, is there a need for an organization to provide training for young lawyers or to provide an opportunity for young lawyers to network? If the senior bar is simply a social organization for very senior members of the bar, such a need may exist. Do young lawyers in the community have an opportunity to influence their profession through the senior bar? Is a portion of the legal community ignored or excluded, such as governmental attorneys or small firm attorneys? Do the young lawyers in the community want an excuse to get together for drinks or activities, such as participating in sport leagues? Do the young lawyers or the senior bar want to provide more service to the public? There are many reasons or justifications for having a young lawyer organization. You simply have to make sure that a sufficient reason exists to form a young lawyer organization in your area.
Once you determine that a YLO would be beneficial to the community, you must analyze the resources available to the YLO to determine whether it can be successful -- importantly, are there a sufficient number of young lawyers in the community willing to operate and build the YLO, and are existing bars willing to cooperate with the new YLO?
Before going public with the YLO, you should carefully draft a mission plan and recruit a well-balanced and responsible group of individuals to serve as the organizations initial leadership. Once you have your plan for the YLO and your initial core leaders, you are ready to introduce the YLO to the community using large-scale marketing and promotional efforts.
After you recruit new YLO members, you have to provide them with meaningful opportunities, whether its providing certain motivated individuals with leadership positions, or creating social functions for all members to attend. Keep in mind that the first few years of a YLOs existence are the most important, as the direction and potential of the organization will, to a large extent, be determine during this time period. Even after the first years of running a successful YLO, you must continue to analyze the purpose, goals, successes and failures of the YLO, which should continue during the lifetime of the YLO.
YLOs should not compete with an existing local or national bar, or engage in any activity that violates the rules or bylaws of an existing bar. Importantly, YLOs should be politically, religiously and socially neutral and non-discriminatory.
For assistance in creating a YLO, please contact any of the sponsoring organizations of this Guideline.
II. UNDERSTANDING THE YLO
Before you start specific planning for your year as Chair, it is absolutely essential to learn all you can about activities, policies, organizational structure, procedures, and its successes and failures. Some of this information will come through reviewing documents: old newsletters, agendas, minutes of Board or Council meetings and the by-laws. Much of the information, however, will come from candid discussions with past and present leaders of your young lawyer affiliate and the state bar. It is important in these discussions to learn from past troubles as well as the successes. Only with a proper grounding in your organizations past can you make informed decisions about your future.
Before any of your personal meetings occur, you should carefully review your organizations constitution and/or by-laws.
It is important to meet with your senior bar leaders. In addition, you need to know the members of your young lawyers governing Board or Council and other leaders, such as committee chairs, with whom you will be working.
As a leader, you must know the policies and procedures applicable to your bar. Obtain copies of whatever written docs there are summarizing these policies and circulate them among your Board members and committee chairs.
III. YOUR ROLE AS A CHAIR OF A YLO
Your year as chair of a young lawyer organization should be exciting, time-consuming and stressful. It is helpful to limit your year to one or two overall themes. After you have picked a particular theme, stick to it. Being a leadership also involves presenting a role model of an individual who has a commitment to the profession and the community, someone who can somehow find the time to work full-time and still be a leader in the bar.
To get it done you will want to sponsor an orientation program during the summer for committee chairs and Board members to set forth the objectives for your year and to delegate responsibility for getting each program done; prepare a YLS calendar as part of creating your working plan, which will be extremely helpful in getting you organized as Chair; make and revise lists of things to do, which will help you sort out the many tasks you need to take care of and help you avoid forgetting important events and activities, and prioritize tasks.
IV. STARTING THE YEAR OFF RIGHT
The first steps in planning your year as chair of the YLO should occur well before you are ever elected or appointed to become chair. Once the bar year has commenced, it is too late to begin planning.
Prior to creating the YLO working plan, it is essential that the incoming leadership have thorough discussions with existing leadership, seeking their suggestions, criticisms and complaints. Creation of this working plan should begin at least three months prior to the incoming leaderships assumption of office, but preferably six months in advance. Also, be ready to modify your plan when necessary.
During your year as chair of the YLO, you should meet with staff to discuss objectives and set priorities for the next year. You should discuss with staff members the issue you find important, the areas you are interested in changing and the goals you would like to accomplish during your term. Keep in mind that your goals can include setting up mechanisms or laying groundwork for projects that will occur long after your term has ended.
Also, during the bar year, you should emphasize public service and develop the majority of your programs around that theme. In addition, you should properly convey a commitment to the legal profession and the community. Chairing means leadership, and leadership involves channelling the efforts of people with strong, often contrasting opinions towards a common goal; motivating people and making them feel important and good about what they are doing for the organization and the community. However, chairs cannot do everything themselves. They must delegate responsibilities to officers, section council members, committee chairs and staff .
Chairs must also prepare a YLO calendar (as part of the working plan) containing all programs, officer and/or executive committee meetings, council meetings, etc.; make and revise lists of things to do and set deadlines for YLO members; prepare meeting agendas well in advance; attend most, if not all, of the YLO events; and treat all volunteers and members with sincerity and respect. The overall goal is to communicate to all your constituents what the YLO is doing (e.g., make calls, write letters, and meet and greet).
V. NEEDS AND GOALS FO THE YLO
A. Needs
You should understand the needs and desires of your members, including: the services or benefits that your members demand or like; the services or benefits that would make non-members join; the services or benefits that were successful in past years; and which services or benefits should be altered or discontinued.
Further, another primary goal of the YLO is to provide services to the public. Thus, you need to understand the public service projects that your members want to undertake; the public service projects that are needed in your community; which of these projects can the YLO successfully implement; and which of these projects will most benefit the YLO.
The financial needs of the YLO should be reviewed and performed on an annual basis. The review should include consideration of (1) the funds on hand, (2) the normal expenditures each bar year, (3) the normal income revenues each year, (4) expected increases or decreases in expenses or revenues your bar year, (5) the need for fundraising or changes in dues, (6) reasonable expectations of fundraising, (7) the need for different investment strategies, (8) financial controls, and (9) reimbursement policies.
Also, the YLOs articles and bylaws should be reviewed and any necessary changes should be formally made to them. A related determination is whether liability insurance is needed for the organization or the directors and officers.
A review of the board structure (number of directors, officer positions) should also be performed. Your annual review should consider whether an executive director is needed, the salary for the executive director, the past performance of the individual, the job description of the position, employee policies and the benefits provided to the employee.
Further, the annual review should determine whether the leadership effectively communicates with YLO members and the public.
B. Goals
After determining the needs of the YLO, it is time to determine whether your goals are compatible and acceptable by your board and members. Accomplishing your goals requires thorough planning, which should include consulting with leaders and members of the YLO, and determining specifically what goals for member services, public services, and other areas you intend to accomplish. Prepare a calendar for your year as soon as possible and, if possible, develop a theme of your bar year that can be shared with others -- the theme should explain in a few simple words what you hope to accomplish and the focus of your bar year. Importantly, effective communication is the key and you must communicate your message to as broad a group of people as possible (with members and non-members and related organizations). You will also need to designate committees and individuals to help you implement new projects. Lastly, be sure to include the board in planning sessions and discuss the goals of the board members.
VI. LONG RANGE PLANNING
Although short term planning and day-to-day operations are crucial for the operation of a YLO, long range planning is a necessity in order to avoid stagnation and to ensure that YLO continues to meet the changing needs of its members and the community. Once completed, a long-range plan provides the organization with a philosophical framework and ensures continuity from one administration to the next. Long range planning will aid the organization in avoiding reinventing the wheel and frequently altering the organizations focus and projects, which may prevent the organization from accomplishing anything of lasting value.
The first step in developing a long-range plan is to form a long range planning committee. The second step is for the committee to identify areas of challenge and opportunity for the YLO. The third step is to develop goals, which should be put in writing; a plan on paper will not benefit the YLO if it is not implemented or if it is not periodically reviewed and modified.
Developing the long-range plan is not the end of the process. Rather, it is the beginning.
A plan on paper will not benefit the organization if it is not implemented or if it is not periodically reviewed and modified.
In developing your long-range plan, it is often beneficial to use a non-member to facilitate the long-range plan. The facilitator should be experienced in leading planning sessions and should not have preconceived biases or beliefs about the organization, which a member will likely have.
1. Developing the Long Range Plan
A. Program Description
As the organization and the environment in which it finds itself change over the years, those goals may change or need to be changed. Long range planning is a process through which an organization can examine itself and its environment to ensure that it continues to be relevant.
By systematically determining both its internal needs and the needs of those it serves, as
well as available financial and manpower resources, long-range planning enables an organization to make conscious and informed decisions about the broad goals of the organization and the narrower objectives that, if achieved, will result in the goals being met.
B. Needs Assessment
The first stage in developing a long-range plan is a needs assessment to determine the needs of your bar association and your community. Generally, your assessment should inquire not just into current needs, but rather also seek to identify needs and issues that are expected to emerge over the next five years. The areas to assess fall into two broad categories: (1) the environment in which the YLO operates; and (2) the YLO itself. Since the general purpose of any bar organization is to serve the profession and the public, it is necessary for the YLO to assess the needs of the profession and the public in order to fulfil your underlying purpose. In conducting your organizational assessment, you will find it helpful to trace the development of the YLO in addition to looking at its current status and future development. Getting information about its history is usually necessary to understanding current organizational policies and politics.
There are two basic ways to doing a needs assessment: personal interviews and surveys. Interviews should be conducted with a cross-section of individuals in the justice system, the bar, and the community -- try not to limit your interviews to people in leadership positions. While surveys provide you with richer information because they are open-ended and provide for greater flexibility, your resources will probably restrict how random they may be. Make sure that you are covering a cross-section of organizations and political/social attitudes. As to your membership, statistical reliability is more important and a survey is strongly recommended. Obtaining an accurate reading of the needs and interests of your membership is critical to defining your purpose and developing your programs. A long range planning committee should be appointed with the responsibility for conducting the needs assessment and developing the long range plan for the YLO.
2. Implementing a Long Range Plan
You should allow about six months to complete the needs assessment -- the exact amount of time depends on the extensiveness of your assessment. The actual development of the plan will likely take another few months. The Guideline suggests planning in five-year cycles, since it is unlikely that there will be significant changes across a broad range of items included in the needs assessment in a shorter period of time, and the needs assessment process is sufficiently volunteer-intensive that most organizations would not want to repeat it more frequently.
You need to decide which organizations and/or individuals will be doing the needs assessment in each broad area identified. You will also need to identify the concerns of the person or organization being interviewed and any thoughts that they may have regarding their interaction with the YLO. Once you have decided on whom you are going to interview and have designed the interview questionnaires, you should send an introductory letter to each individual requesting the interview. You should also survey members (and non-members), train long range planning committee members; draft the needs assessment report; and develop goals and objectives. In other words, once all of the long range planning committee members have had a chance to digest the needs assessment report, each committee member should think through, based on information in the report, what the goals and objectives of the YLO should be. The committee will then have to meet several times to discuss the various suggestions of its members and come to a consensus as to the goals and objectives and their relative priority.
VII. CREATING A WORKING PLAN
The Chair-Elect should prepare a working plan well before assuming office as chair. The Chair-Elect must meet often with the core group of idea people. Prior to creating the working plan, it is essential that the incoming leadership have exhaustive discussions with existing leadership, seeking their suggestions, criticisms and complaints. They should discuss in particular projects that need revitalization.
The steps to create a working plan start with the draft of a checklist of things to do and benchmarks, including the following:
1. Identification of all committees to function during the bar year;
2. Identification of all committee chairs, vice-chairs and, as soon as possible, members;
3. Identification of all projects to be undertaken during the bar year, with assignment of such projects to specific committees;
4. Identification of all affiliate, executive council, officers and directors meetings to be held during the year;
5. Identification of target dates for accomplishment of each of the foregoing; and
6. Analysis of the budget (availability of funds and allocation thereof).
The second step is to draft a skeleton calendar for the year and agendas for each Board meeting.
From time to time, events may dictate change. The organization and its leadership must constantly monitor and evaluate the affiliates progress through the year.
VIII. THE BUDGET
Considerable advance planning must go into developing a budget based on the current and future needs of the YLO, while keeping in mind the sources of revenue available to fund the YLO. The threshold task in planning a budget is to review the allocation made in the previous years budget. The adoption of a line item budget using a format that includes prior year requests and actual expenditures effectuates this comparison. The budget should include a separate line item for each program, or committee,that will require funds for its operation. Expenses and income for each line item program should be included in a separate budget comparison. A summary sheet should tabulate total expenses and income to calculate an overall budget allocation.
In the months before the bar year starts, a draft budget should be prepared by the YLO treasurer. The draft should be reviewed by you and discussed with the Treasurer before being finalized.
After reviewing the prior years budget, committee plans of action should be used to determine the resources necessary for the coming bar year. A plan of action utilizes a specific format that should be sent to each prospective committee chair well before the formal budgetary process begins. The completed plan of action for each committee will serve as the justification for that committees line item in the budget. It is essential, therefore, that the plan of action include a section specifically itemizing the expenses and income the committee anticipates in the coming bar year
Each bar association operates under a different review and approval process. It is most common for a proposed budget to be discussed and approved by the executive council of the YLO. Review and approval by the finance committee and/or executive council of the senior bar is commonly also required. Thus, the line item budget and a summary budget justification based on a synopsis of each plan of action (or the plans of actions themselves) should be presented to both executive councils. Larger YLO may delegate review of the budget to separate budget, finance or planning committees.
Locating sources of revenue to fund YLO programs is also very important.
Typical sources of revenue are the local and state bar associations, local or state bar endowments, private funding, revenue generating projects, publications or CLE programs. Each funding source should have its own approval process. The YLO treasurer should maintain a careful running total of the amount of funds being spent. The YLO should also adopt a policy statement concerning reimbursement and travel expenses, food and drink, entertainment expenses, etc., that if allowed, require advance approval for any such expense, or for expenses over a specified amount. Successful implementation of a budget require cooperation by the respective program chairs who will be spending the money.
In terms of securing the funding, most affiliates customarily receive reimbursement by submitting a reimbursement request form and a receipt to the Treasurer.
The Treasurer will then check the budget and committee plan of action to ensure that an expense is appropriate and that the committee is staying within its budget. It is important that the Treasurer maintain a careful running total of the amount of funds being spent. Commonly, the Treasurer prepares a monthly financial statement and updates it constantly so that he/she knows the status of expenditures/income at all times.
Successful implementation of a budget requires cooperation by the respective program chairs that will be spending the money. Each of these chairs should be notified of the budget allocation for their committee. They should be required to submit all expense reimbursements to the Treasurer and staff person for approval.
Adoption and implementation of a successful budget requires years of fine tuning. The problems that are discovered each year should be addressed in subsequent years
IX. SELECTING YOUR COMMITTEES
It is important to evaluate periodically the progress of the organization and determine whether the programs being produced by the organization are consistent with the mission statement, by-laws and needs of the membership. The Long Range Plan should be the vehicle to determine what committees a young lawyers section should have.
In evaluating the basic organizational structure of the affiliate, invariably the board must review the existing committee structure to determine its effectiveness. In contemplating such a review, it is important to review what existing committees there are, and whether the needs of the membership and community are being met.
After evaluating all committees, you may then focus on the three types of committees, each with distinct goals and functions, this is, Membership Support Committees (oriented toward member services), Public Service Committees (oriented toward development of programs for presentation to the public) and Board Committees (designed to assist in the implementation of policy).
You should also encourage committee and bar group cooperation, which means cooperation not only between different committees of the same YLO, but also cooperation between different organizations as well.
Definitions as to goals should be made early, to enable each of the members of this joint committee to understand what their respective roles will be and what is expected of the group. In terms of access to the public, and access to a wider degree of membership involvement, it is ultimately beneficial to all concerned to access other groups, whose programs and goals are similar to yours.
In the final analysis, both in terms of member and public service, a cooperative effort is desirable. The valuable programming and the participating organizations have an opportunity to involve their members in specific programs. This will encourage their continued participation in other aspects of the organization.
A. Selecting Committee Chairs
Running a YLO effectively depends on getting other members involved in committed teams efforts. You should create or use existing committees to focus and carry out particular tasks and then choose skilful committee chairs that will energize and move forward with projects. The following points should be considered when selecting committee chairs: assess your needs (e.g., have your current committee chairs been doing a good job?); tap candidates with proven track records (perhaps current or past officers, board of directors, or retiring committee chairs who may have recommendations); create co-chair positions with one co-chair as the veteran who will train the new co-chair; the chair position should be attractive to the candidate; ensure that the incoming chair will be supported by you and the YLO leadership; reward the chair with recognition; meet personally with the chair; and replace inactive appointees when necessary. The goal is to ensure that the committee chairs are well-established so that they can generally run themselves.
B. Educating Committee Chairs.
Before the start of the bar year, you need to assemble a handbook for each committee chair to use as a reference tool during the year. The handbook should include basic information about the structure of the YLO and the senior bar, where it fits into a state bar or local bar, and information about all of its committees. The handbook should also describe the duties and responsibilities of the officers, directors and committee chairs and staff members, and how to organize and operate a committee, including the preparation of a plan of action and annual report, planning and scheduling meetings and events, etc.
Further, the handbook should include financial guidelines and procedures, and in the appendix there should be a copy of the sections bylaws, a sample plan of action, reimbursement forms, the names and addresses of all committee chairs and council members or directors, and a schedule of all meetings and major events during the year.
The roles of each of the officers must be specifically defined. The officers are your bar leaders who must motivate your executive council members as well as the membership at large in order to accomplish your goals during the year. Prior to the first meeting of your board or membership you should meet with your officers to go over your plans and objectives for the year.
It is important to set regular meetings for your Council or Board and for committee chairs. Council/Board meetings should be held at least every month, committee chairs at least once every other month.
X. MOTIVATING VOLUNTEERS
There are several different strategies that can be used to motivate volunteers, including:
1. Delegating responsibility up and down: Share responsibility and give your volunteers an opportunity to shine. Defer some decision-making authority to your directors and committee heads.
2. Have reasonable expectations: Listen to your volunteer when he/she tells you to what they want to devote their time and how much time they have to offer.
3. Chance for recognition: Give your volunteers an opportunity to work and make sure they get the recognition they deserve in your affiliates newsletter or via the bars communications staff.
4. Acknowledge volunteers successes.
XI. INCREASING AND MAINTAINING MEMBERSHIP
A. Attracting New Members:
A first step in attracting new members is forming a membership committee with a chair and vice chair. In jurisdictions where there is a voluntary and mandatory bar or a voluntary bar alone, the primary goal of the membership committee of a voluntary bar is to increase membership of the senior bar and of the young lawyer section, both in numbers of members and in numbers of active members. The membership goals of the senior bar and the young lawyer section cannot be separate, because it is likely that the majority of new members will be young lawyer section members. The YLO should also maintain a high profile for the membership committee in the senior bar and the YLO, so that membership will continue to be a high priority for the YLO and resources will be actively used to increase membership on a continual basis. As for those jurisdictions that have only a mandatory bar, then the objective of the YLO will be primarily to attract volunteers for activities and to inspire present members into more activity.
Also very important in attracting new members is understanding the needs of Potential and Actual Members. Before the membership committee launches its annual membership campaign, it should obtain a better understanding of its actual and potential membership by determining: how many members of the YLO it has and how many of them are active; the identifiable groups of the bar population as prospective members (e.g., minorities, women, solo practitioners, in-house counsel, judges, etc.); and the percentage of your potential membership that each potential group constitutes. You would also want to target new members to the bar.
At this point, you should conduct a needs assessment, trough phone interviews, surveys or focus groups, determining whether you are fulfilling the prospective members ideas of what a bar association needs to do to attract them.
You would also want to target new members to the bar by sponsoring seminars about practicing law in the area or holding a workshop on interviewing followed by a reception so the students can meet YLS members.
Other groups can be targeted besides young lawyers newly admitted to the bar. In addition to social events, programs can be developed to target these potential members. To target lawyers within specific types of entities, such as the government, law firms, or trade associations, the committee should first develop a contact list, working with a contact list committee.
B. Retaining New Members:
A primary goal of the YLO will be to retain your current members while you are attracting new members, preferably ones who are interested in taking an active role in the YLO. A key to attracting new members and retaining current member interest is effective communication.
An easy way to communicate is to publicize your successful events and committee activities, for example, through the YLO newsletter or Website. Your YLS newsletter is obviously one of the most important tools at your disposal to publicize the events of your young lawyers section and, thereby, insure that people will be excited and motivated about maintaining an active role in the organization. Also provides a great opportunity to include a monthly calendar of events informing your members of everything. It can also be quite useful in giving your committee chairs some space to publicize their projects and seek volunteers for their future events
Another effective method of communicating with young lawyers is to establish a young lawyer contact person in each city, and in each major law firm, corporation and government agency.
XII. RUNNING AN EFFECTIVE MEETING
A strong measure of your success as a bar leader or as an attorney within a firm, corporation or organization, will be the quality and product of your meetings.
Among the items to consider for any meeting:
A. Planning and timetables
B. Audience profile: Before setting the agenda or deciding on objectives and prepared statements, take the time to profile your audience.
C. Agenda: Agendas need not be set in stone, but without at least a loose structure any meeting will wander. In addition to the list of items to be covered, the agenda may include ground rules for the meeting, such as the length of time for opening statements and discussion, as well as rules for voting and submission of materials.
D. Facilitates profile
E. Objectives
F. Opening statements: They should include a review of the agenda, requests for changes to the agenda, statement of ground rules and expected closing time
G. Introductions
H. Record keeping
I. People management
J. Running discussions: Pre-set ground rules are very important. Let the members know how long the discussion should go and how long each person should speak.
K. Voting
L. Closing statements
M. Follow-up
N. How to improve future meetings
XIII. PUBLIC RELATIONS
Good public relations is the foundation of a successful YLO and a successful bar event. Good public relations serve not only to publicize events and people, but to put the event in the best possible light. If you do not have the luxury of your own public relations personnel, you should use whatever public relations expertise is already available to the senior bar.
The first thing you must do in arranging publicity for any events is decide who your audience is and how you want to reach that audience. Secondly, you must determine the type of media to which you wish to direct your efforts.
Whichever media form you select, consider appointing a young lawyer media liaison who will handle all media relations.
The third part of good public relations is timing. Public relations planning should be a major part of the projects timetable and execution
Just because you are planning an event solely for young lawyers section members, i.e., an
internal function, is no reason to ignore the public relations aspect. In many cases it is all the more reason that your public relations efforts be clear, concise and well-directed. Attorneys are inundated with so many papers, advertisements, fliers and just plain garbage, that you must make your public relations gestures unique, attractive, and effective.
XIV. DEVELOPING CLOSE RELATIONSHIPS OUTSIDE THE YLO
You should establish and develop relationships with other organizations in the legal profession and the community, particularly your senior bar counterpart.
Senior Bar
Sustained cordial relations may result in money, technical assistance and personnel from the senior bar.
The best place to start is by meeting in person with your senior bar counterpart. You may be surprised to lean that senior bar leaders often do not know what your organization does. Consider asking for an opportunity to report on one of your activities at a senior bar board meeting.
Another way to establish good relations with the senior bar is to be effective in whatever you do. Undertake only what you can accomplish and follow through on your promises. Be realistic in your projections of time and money.
The key to a successful relationship with the senior bar, like many relationships in life, is communication and involvement. Toward this end, there are several steps that your affiliate should be taking to nurture and enhance your relationship with the senior bar:
1. Attend senior bar meetings
2. Get involved in senior bar governance
3. Meet one-on-one with senior bar leaders
4. Meet one-on-one with senior bar leaders
5. Show the senior bar that young lawyers have some clout too
6. Seek publication opportunities
7. Invite senior bar leaders to meetings
Relationships with Organizations Other Than the Senior Bar
You will also want to cultivate and maintain good relations and communications with a number of other organizations, including the International Association of Young Lawyers, the American Bar Association, and the International Bar Association -- these three organizations can be tremendous source of information and inspiration.
XV. CLOSING OUT THE YEAR
Planning for the transition to the next group of leaders is essential to the continued success of the YLO. This planning should begin approximately three months before the end of your term. At that time, a review needs to be made of ongoing projects and other YLO work. A decision needs to be made as to what can be finalized and what will need to be postponed until the following year. As the bar year approaches the end, you should make a list of uncompleted projects, committee work, and other ongoing activity of the YLO.
Communication to other bar organizations of the change of leadership is important. You should use your organizations newsletter to publicize the change of leadership so that the general membership can be aware of and involved in the change of leadership.
The outgoing chair has experience from which an organization can draw. Near the end of your term as a Chair, you should hold a meeting with the incoming Chair, as well as other officers and any key persons within the organization, such as staff. Also, the retiring chair should remain on the long range planning committee, if your organization has such a committee.
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* TEACH ABOUT
THE ROLE OF LAWYERS, JUDGES AND DEFENDANTS
IN THE CRIMINAL JUSTICE SYSTEM
| THE CHICAGO SEVEN TRIAL RELOADED: USING THE CHICAGO SEVEN, NELSON MANDELA AND SADDAM HUSSEIN TRIALS |  |
NELSON MANDELA AND SADDAM HUSSEIN TRIALS TO TEACH ABOUT
THE ROLE OF LAWYERS, JUDGES AND DEFENDANTS IN THE CRIMINAL
JUSTICE SYSTEM.
1. INTRODUCTION
The antics and strategies of the defendants and their lawyers at the trial of the Chicago
Seven (1969-1970) attracted attention around world. The manner in which the trial was
conducted was commented upon by the Critical Legal Studies school of jurisprudence.
The Critical Legal Studies school saw the legal process as being disingenuous and
privileging the few. The defence approach was described as a 'power oriented' approach
to legal practice. The defendants called into question the legitimacy of the legal system
itself during the trial.
Similarities are to be found in strategies adopted by the defendants in the trials of Nelson
Mandela in the 1960s, and most recently in the Saddam Hussein trial in 2005 - 2006. The
concept of 'power oriented' lawyering as used by the defence in their cases will be
explored in an interactive session. Brief extracts from the trials of the Chicago Seven,
Nelson Mandela and Saddam Hussein will be used to raise questions concerning this
approach, and to demonstrate how they can be used to teach about the role of lawyers,
judge and defendants in the criminal justice system.
2. THE CHICAGO EIGHT BECOME THE CHICAGO SEVEN
The Chicago Seven were originally the Chicago Eight that included Jerry Rubin and
Abbie Hoffman, (founders of the Youth International Party - known as the Yippies);
Rennie Davis and Tom Heyden, (founders of Students for a Democratic Society the
SDS); David Dellinger (a well-known opponent of the Vietnam War); Bobby Seale
(leader of the Black Panther Party); Lee Weiner (a sociology lecturer at North Western
University); and John Foines (a chemistry lecturer at the University of Oregon). The
Chicago Eight had allegedly made criminal statements during anti-War demonstrations
held in Chicago to coincide with the Democratic National Convention hosted by Mayor
Richard Daley. They were charged with rioting and inciting people to riot under the new
anti-riot law and conspiracy.1
The decision to prosecute the Chicago Eight under the new law and for conspiracy was
taken by the Nixon administration early in 1969 after the former Attorney General
Ramsey Clark, (now a defence counsel advisor in the Sadam Hussein trial), declined to
prosecute. Clark and the Justice Department were reluctant to enforce the new provisions,
and Clark viewed what had happened in Chicago as primarily a police riot and expressed
more interest in prosecuting police officers for brutality than in prosecuting the
demonstrators for rioting. The new Attorney General, John Mitchell, thought otherwise
and went ahead with the prosecution of the demonstrators. The judge presiding was Julius
Hoffman. On February 18, 1970 all of the defendants were found not guilty on the
conspiracy charges. However, five defendants were convicted of crossing state lines to
incite a riot. Two years later, all the convictions were overturned by the United States
Court of Appeals for the Seventh Circuit.
The Chicago Eight became the Chicago Seven when Bobby Seales trial was
separated from that of the others, after he was gagged and handcuffed to a chair in the
courtroom (the first time in American history), his case was declared a mistrial, and he
was convicted for contempt of court. The incidents were prompted by Seale refusing to
abide by the judges decision to impose the counsel defending the other accused on him
after his own lawyer fell ill, and by Seale trying to defend himself by cross-examining
witnesses despite admonitions by the judge not to do so. This led to heated exchanges
between Seale and the judge and his subsequent gagging and conviction for contempt.
2.1 BOBBY SEALES REQUEST TO REPRESENT HIMSELF
Preliminary exchanges between Bobby Seale and Judge Hoffman probably went
something like this2 after his lawyer, Charles Garry, had to go to hospital for an
operation:
BOBBY SEALE: My lawyer has had to go to hospital and I would like my case to be
postponed until I find another lawyer who can defend me.
JUDGE HOFFMAN: I am afraid I cannot allow that.
BOBBY SEALE: Then I would like permission to defend myself.
JUDGE HOFFMAN: I also cannot allow that.
BOBBY SEALE: That is my constitutional privilege.
JUDGE HOFFMAN: I am afraid that I cannot allow you to defend yourself. I am
appointing the chief defence lawyers, Counsellors Kunstler and Weinglass to defend you.
BOBBY SEALE: I do not want to be defended by them I want to defend myself. I am
dismissing them as my lawyers.
JUDGE HOFFMAN: I have appointed those lawyers to defend you and you cannot
dismiss them.
BOBBY SEALE: Racist!
JUDGE HOFFMAN: I can hold you in contempt for comments like that.
2.2 BOBBY SEALES ATTEMPTS TO CROSS-EXAMINE WITNESSES
Bobby Seales attempts to cross-examine witnesses probably went something like this:3
BOBBY SEALE: I would like permission to cross-examine the witness, your honor.
JUDGE HOFFMAN: I cannot allow that you already have a lawyer to do that for you.
BOBBY SEALE: That man is not my lawyer. [Turning to the WITNESS] Now, is it not
true ...
JUDGE HOFFMAN: I admonish you that if you continue asking the witness questions I
will hold you in contempt of court.
BOBBY SEALE (shouting): I admonish you! You are in contempt of the peoples
constitutional rights!
TOM HAYDEN (shouting): Let the record show that the judge was laughing!
BOBBY SEALE: Yes, he is laughing.
[Judge Hoffman sends out the jury from the courtroom and the argument between the
Judge and Bobby Seale continues]
BOBBY SEALE: I insist on my right to defend myself. ...
JUDGE HOFFMAN: I cannot allow that.
BOBBY SEALE: It is my constitutional right ...
JUDGE HOFFMAN: I am warning you that the court has the right to gag you. I dont
want to do that. But under the law you may be gagged and chained to your chair.
[The court recesses but Bobby Seale and the other defendants refuse to rise]
[Further witnesses are called and Bobby Seale tries to question them eventually the
following exchange occurs:
BOBBY SEALE: I wish to question the witness.
JUDGE HOFFMAN: I will not allow that.
BOBBY SEALE: You are a facist dog and a pig!
[Judge Hoffman orders Bobby Seale to be gagged and handcuffed to a chair in the
courtroom for three days. With his mouth gagged he continues to mumble and disrupt the
court with his muffled demands to defend himself]
[QUESTIONS:
1. WHAT WOULD YOU HAVE DONE IF YOU WERE BOBBY SEALE?
2. WHAT WOULD YOU HAVE DONE IF YOU WERE JUDGE HOFFMAN?]
3. THE CHICAGO SEVEN TRIAL
The Chicago Seven trial continued without Bobby Seale. Tom Hayden, and some of
the other defendants, wanted to concentrate on winning over the jurors by conventional
means such as pursuing weaknesses in the prosecution's case and by observing a degree
of courtroom decorum. However, Jerry Rubin, Abbie Hoffman and others wanted to
expose the injustices in the American system by attracting as much attention as possible
from the press. To do this they engaged in such tactics as wearing hippie clothes and
judicial robes, bringing into the courtroom a birthday cake for Bobby Seale, blowing
kisses to the jury, baring their chests, or placing the flag of the National Liberation Front
on the defense table. One of their lead lawyers, William Kunstler, increasingly identified
himself with their cause and was eventually convicted of numerous accounts of contempt
of court.4
Anthony Lukas5 has divided the Chicago Eight and Seven trials into five phases:
1. The Jelly Bean Phase, the first three week phase where the defendants took a
gently mocking approach to the court with no major outbursts.
2. The Gags and Shackles Phase, the second three weeks during which the
defendants sought to emphasize political issues and Bobby Seale, frustrated from
being unable to represent himself during his lawyers absence, angrily insulted the
judge until he was gagged and chained to a chair eventually having his trial
separated and being sentenced to four years imprisonment for contempt of court.
3. The Governments Day in Court, a relatively calm period of just over a month
that occurred after Seale had been incarcerated, and resulted in only nine
contempt of court charges.
4. The Sing Along with Phil and Judy Phase, a six week period during which the
defence presented celebrity witnesses from the American left such as the drug
guru Timothy Leary, radical poet Allen Ginsberg, and folk singers Phil Ochs,
Arlo Guthrie, Country Joe McDonald, Pete Seeger and Judy Collins.
5. The Barnyard Epithet Phase, the shortest two-week period that resulted in
increasingly bitter outbursts by the defendants and their attorneys, and
overreactions by the judge. Although this was the shortest period there were 48
contempt of court charges.6
3.1 INSULTING THE COURT
[Judge Hoffman cites the specification for the contempt charge against William Kunstler
regarding the Abernathy incident in which Kunstler had previously told the court that
there were no further witnesses and then learned unexpectedly that a key defence witness,
the Reverand Ralph Abernathy, was in town and prepared to testify. The judge had
previously excluded the former Attorney General Ramsey Clark from appearing in court
to testify :7
Specification 20: On February 2, after the Court ruled that Mr. Kunstler would have to
abide by his representation the previous Friday, and therefore would not be
able to call the Reverend Ralph Abernathy to the stand, Mr. Kunstler made the following
speech at the conclusion of his argument:
''THE COURT: There have been several witnesses called here during this trial -- I need
not mention their names -- whose testimony the Court ruled could not even be presented
to the jury: singers, performers, and former office holders. I think in the light of the
representations made by you unequivocally, sir, with no reference to Dr. Abernathy, I
will deny your motion that we hold --
''MR. KUNSTLER: I want to comment on this, your Honor, because I think what you
have just said is about the most outrageous statement I have ever heard from a bench, and
I am going to say my piece right now, and you can hold me in contempt right now if you
wish to.
''You have violated every principle of fair play when you excluded Ramsey Clark from
the witness stand. The New York Times, among others, has called it the ultimate outrage
in American justice.
''VOICES: Right on.
''MR. KUNSTLER: I am outraged to be in this court before you. Now because I made
a statement on Friday that I had only a cameraman, and I discovered on Saturday that
Ralph Abernathy, who is the chairman of the Mobilization, is in town, and can be here,
and because you took a whole day from us on Thursday by listening to this ridiculous
argument about whether Ramsey Clark could take that stand in front of the jury, I am
trembling because I am so outraged. I haven't been able to get this out before, and I am
saying it now, and then I want you to put me in jail if you want to. You can do anything
you want with me, if you want to; because I feel disgraced to be here, to say to us on the
technicality of my representation that we can't put Ralph Abernathy on the stand. He is
the co-chairman of the MOBE. He has relevant testimony. I know that doesn't mean
much in this Court when the Attorney General of the United States walked out of here
with his lips so tight he could hardly breathe, and if you could see the expression on his
face, you would know, and his wife informed me he never felt such anger at the United
States Government as at not being able to testify on that stand.
''VOICES: Right on.
''MR. KUNSTLER: You can't tell me that Ralph Abernathy cannot take the stand
today because of the technicality of whether I made a representation. That representation
was made in perfect good faith with your Honor. I did not know that Reverend
Abernathy was back in the country. We have been trying to get him for a week and a half
to be the last witness for the defense in this case. And now to tell me that we are going
ahead, the Government is ready, after you took Thursday from us to have this argument
over whether a man could be presented to a jury, I told your Honor then, and I am telling
you now, no American court has ever done what your Honor did - -
''VOICES: Right on.
''MR. KUNSTLER: basing it on a case which was inapplicable to the situation. -That
was done for one purpose only, and the New York Times said it more beautifully than I
could say it, and they said, 'It was done to make inadmissible anything that would
''interfere'' with the Justice Department's intent to prove a conspiracy to incite a riot
during the Democratic National Convention.'
''VOICES: Right on.
''MR. KUNSTLER: That was the reason behind your Honor's ruling, nothing short of
that. I have sat here for four and a half months and watched the objections denied and
sustained by your Honor, and I know that this is not a fair trial.
I know it in my heart. If I have to lose my license to practice law and if I have to go to
jail, I can't think of a better cause to go to jail for and to lose my license for - -
''A VOICE: Right on.
''MR. KUNSTLER: - - than to tell your Honor that you are doing a disservice to the
law in saying that we can't have Ralph Abernathy on the stand. You are saying truth will
not out because of the technicality of a lawyer's representation. If that is what their
liberty depends upon, your Honor saying I represented to you that I had a cameraman,
and that was our only witness, a cameraman, whom we can't get, incidentally, then I think
there is nothing really more for me to say.
''THE COURT: There is not much more you could say, Mr. Kunstler.
''MR. KUNSTLER: I am going to turn back to my seat with the realization that
everything I have learned throughout my life has come to naught, that there is no
meaning in this court, and there is no law in this court - -
''VOICES: Right on.
''MR. KUNSTLER: and these men are going to jail by virtue of a legal lynching - -
''VOICES: Right on.
''MR. KUNSTLER: and that your Honor is wholly responsible for that, and if this is
what your career is going to end on, if this is what your pride is going to be built on, I can
only say to your Honor, 'Good luck to you.'
''(There were shouts of 'Right On,' and there was applause in the courtroom.)''
[Kunstler was sentence to 6 months imprisonment on this count]
[QUESTIONS:
1. DID WILLIAM KUNSTLER BEHAVE APPROPRIATELY REGARDING THIS
INCIDENT? WHY OR WHY NOT?
2. WHAT WOULD YOU HAVE DONE IF YOU HAD BEEN IN KUNSTLERS
POSITION?
3. IF YOU WERE JUDGE HOFFMAN HOW WOULD YOU HAVE HANDLED THE
SITUATION?]
3.2 SENTENCING POLEMICS
Before being sentenced by Judge Hoffman each accused person was given an opportunity
to speak.
3.2.1 The speeches before sentencing
Douglas Linder summarizes their speeches as follows:8
David Dellinger told Hoffman that he was ''a man who had too much power over too
many people for too many years,'' but that he admired his ''spunk.'' Rennie Davis
announced that when he got out of prison he intended to ''move next door to [prosecutor]
Tom Foran, and bring his sons and daughter into the revolution.'' Tom Hayden offered
the opinion that ''we would hardly have been notorious characters if they left us alone on
the streets of Chicago,'' but instead ''we became the architects, the masterminds, and the
geniuses of a conspiracy to overthrow the government-- we were invented.'' Abbie
Hoffman recommended that the judge try LSD: ''I know a good dealer in Florida [where
the judge was soon to head for a vacation]; I could fix you up.'' Jerry Rubin offered the
judge a copy of his new book Do It! with an inscription inside: ''Julius, you radicalized
more young people than we ever could. You're the country's top Yippie.''
3.2.2 Tom Haydens speech
Tom Hayden made the following statement before being sentenced:
I have very little that I want to say because I don't have very much respect for this kind
of freedom of speech. This is the kind of freedom of speech that I think the Government
now wants to restrict us to, freedom to speak in empty rooms in front of prosecutors, a
few feet from your jail cell.
We have known all along what the intent of the Government has been. We knew that
before the famous events of August 28, 1968. If those events didn't happen, the
Government would have had to invent them as I think it did for much of its evidence in
this case, but because they were bound to put us away.
They have failed. Oh, they are going to get rid of us, but they made us in the first
place. We would hardly be notorious characters if they had left us alone in the streets of
Chicago last year, but instead we became the architects, the masterminds, and the
geniuses of a conspiracy to overthrow the government. We were invented. We were
chosen by the Government to serve as scape goats for all that they wanted to prevent
happening in the 1970s.
I have sat there in the Cook County Jail with people who can't make bond, with people
who have bum raps, with people who are nowhere, people who are the nothings of
society, people who say to me, ''You guys burned your draft cards. I would like to burn
my birth certificate so they can never find me again.''
I sit there and watch television, and I hear Mr. Foran [the prosecutor] say the system
works. This trial proves the system works.
Mr. Foran, I would love to see a television cameraman come into Cook County jail and
show the people how the system is working. Maybe you could televise us sitting around
the table with the roaches running over our wrists while we watch somebody on
television, a constitutional expert explaining how the jury verdict demonstrates once
again the vitality of the American system of justice.
If you didn't want to make us martyrs, why did you do it? If you wanted to keep it
cool, why didn't you give us a permit? You know if you had given us a permit, you know
that by doing this to us it speeds up the end for the people who do it to us.
And you know that if this prosecution had never been undertaken, it would have been
better for those in power. It would have left them in power a little longer.
You don't believe it but we have to do this. We have no choice. We had no choice in
Chicago. We had no choice in this trial. The people always do what they have to do.
Every person who is born now and every person under thirty now feels an imperative to
do the kind of things that we are doing. They may not act on them immediately, but they
feel the same imperative from the streets. Some day they are going to proclaim that
imperative from the bench and from the courthouse. It's only a matter of time. You can
give us time. You are going to give us time. But it is only a matter of time.
[QUESTIONS:
1. WHAT WAS THE PURPOSE OF TOM HAYDENS SPEECH?
2. IF YOU WERE ADVISING HAYDEN AS HIS LAWYER WHAT WOULD YOU
HAVE ADVISED HIM TO SAY?]
4. NELSON MANDELAS TRIALS
In 1956 Nelson Mandela and 155 other political activists were arrested and charged with
treason. When they eventually came to trial, nearly three years after their arrests, there
were 30 accused one of whom subsequently escaped. The trial lasted for four years.
However, in 1961 all the accused were acquitted. Prior to that in 1960 a State of
Emergency was declared which made it difficult for the defence lawyers to defend them.
The accused unanimously agreed to ask the lawyers to withdraw from the case until the
State of Emergency ended. For a period of five months the accused conducted their own
defences until the State of Emergency was lifted. Thereafter their lawyers returned. The
strategy of the accused what to drag out proceedings until the State of Emergency ended
for instance, Accused No. 1 would call Accused No. 2 as a witness. Accused No.2
would then be cross-examined by the other 27 accused and the prosecutor, and then reexamined by Accused No. 1. The same process would be followed in respect of the other 27 witnesses.9
[QUESTION: WOULD THE COURT IN THE CHICAGO SEVEN TRIAL HAVE
ALLOWED THE SEVEN ACCUSED TO DEFEND THEMSELVES? WHY OR WHY
NOT?]
In 1962, seven years before the Chicago Eight trial in the United States, Nelson Mandela
was charged with inciting people to strike and leaving the country without a passport. A
year later, in 1963, six years before the Chicago Eight trial, Mandela was charged with
sabotage. Mandela used both trials to expose the unjust apartheid system and to put the
state on trial.
4.1 NELSON MANDELAS TRIAL FOR INCITING STRIKES AND LEAVING THE
COUNTRY WITHOUT A PASSPORT
In October 1962 Mandela was charged with inciting others to strike and leaving the
country without at passport. He had spent two years on the run as the Black Pimpernel
moving in and out of the country in disguise before he was eventually caught. In that trial
he conducted his own defence and was sentenced to five years in prison.
4.1.1 Mandelas first court appearance
Nelson Mandela, who was conducting his own defence, describes his entrance into court
for the initial hearing of his case on Monday 15 October 1962 as follows:
I entered the court that Monday morning wearing a traditional Xhosa leopard-skin
kaross10 instead of a suit and tie. The crowd of supporters rose as one and with clenched
fists shouted Amandla and Ngawethu!11 The kaross electrified the spectators, many of
whom were friends and family, some of whom had come all the way from the Transkei.
Winnie [his wife] also wore a traditional beaded headdress and an ankle-length Xhosa
dress.
I had chosen traditional dress to emphasize the symbolism that I was a black African
walking into a white mans court. I was literally carrying on my back the history, culture
and heritage of my people. That day, I felt myself to be the embodiment of African
nationalism, the inheritor of Africas difficult but noble past and her uncertain future. The
kaross was also a sign of contempt for the niceties of white justice. I well knew the
authorities would feel threatened by my kaross as so many whites feel threatened by the
true culture of Africa. 12
[QUESTION: IF BOBBY SEALE HAD APPEARED IN COURT IN THE CHICAGO
EIGHT TRIAL WEARING TRADITIONAL AFRICAN CLOTHES (TO CELEBRATE
HIS AFRICAN HERITAGE) THAT EXPOSED PARTS OF HIS BODY WHAT DO
YOU THINK THE COURT WOULD HAVE DONE?]
4.1.2 Nelson Mandelas opening statement
Mandela received permission to make an opening statement in which in his words:13
I wanted to make it clear to the bench, the gallery, and the press that I intended to put the
state on trial. I then made application for the recusal of the magistrate on the grounds that
I did not consider myself morally bound to obey laws made by a Parliament in which I
had no representation. Nor was it possible to receive a fair trial from a white judge:
Why is it that in this courtroom I am facing a white magistrate, confronted by a
white prosecutor, escorted by white orderlies? Can anybody honestly and
seriously suggest that in this type of atmosphere the scales of justice are evenly
balanced? ......Your Worship, I hate racial discrimination most intensely in all its
manifestations. I have fought it all my life. I fight it now, and I will do so until the
end of my days. I detest most intensely the set-up that surrounds me here. It
makes me feel that I am a black man in a white mans court. This should not be.
[QUESTIONS:
1. WHAT DO YOU THINK THAT THE REACTION OF THE COURT IN THE
CHICAGO EIGHT TRIAL WOULD HAVE BEEN IF A SIMILAR STATEMENT HAD
BEEN MADE BY BOBBY SEALE?
2. DO YOU THINK THAT THIS STATEMENT BY NELSON MANDELA WAS
CONTEMPT OF COURT?]
4.1.3 Nelson Mandelas address on sentence:
Whatever sentence Your Worship sees fit to impose upon me for the crime for which I
have been convicted before this court, may it rest assured that when my sentence has
been completed I will still be moved, as men are always moved, by their conscience; I
will still be moved by my dislike of the race discrimination against my people when I
come out from serving my sentence, to take up again, as best I can, the struggle for the
removal of these injustices until they are finally abolished once and for all....
I have done my duty to my people and to South Africa. I have no doubt that posterity will
pronounce that I was innocent and that the criminals that should have been brought
before this court are the members of the government.14
[QUESTION: ARE THERE ANY SIMILARITIES BETWEEN NELSON MANDELAS
SPEECH AND THAT OF TOM HAYDEN IN THE CHICAGO SEVEN TRIAL?]
4.2 NELSON MANDELAS TRIAL FOR SABOTAGE THE RIVONIA TRIAL
In October 1963 Mandela and seven others - four others had escaped custody - were
charged in the Rivonia Trial with over 200 acts of sabotage aimed at facilitating violent
revolution and an armed invasion of the country. In June 1964 Mandela along with
Walter Sisulu, Govan Mbeki, Raymond Mhlaba, Elias Motsoaledi, Andrew Mlangeni,
Ahmed Kathrada and Denis Goldberg - were convicted of sabotage. Mandela was found
guilty on four charges of sabotage and sentenced to life imprisonment.
4.2.1 Nelson Mandela and the others plead to the charges
Nelson Mandela and his co-accused had agreed not to plead in the usual manner but to
use the moment to show our disdain our disdain for the proceedings.15 The pleas went as
follows:
REGISTRAR: Accused No. 1, Nelson Mandela, do you plead guilty or not guilty?
MANDELA: My Lord, it is not I, but the government that should be in the dock. I plead
not guilty.
REGISTRAR: Accused No. 2, Walter Sisulu, do you plead guilty or not guilty?
SISULU: The government is responsible for what has happened in this country. I plead
not guilty.
[The judge said that he was not interested in political speeches and that the accused
should merely plead guilty or not guilty. His direction was ignored and each of the 28
other accused suggested that it was the government that was the criminal before pleading
guilty or not guilty].16
[QUESTION: WHAT WOULD HAVE HAPPENED IF THE CHICAGO SEVEN HAD
ADOPTED A SIMILAR STRATEGY AND IGNORED THE JUDGES DIRECTION
NOT TO MAKE A POLITICAL SPEECH?]
4.2.2 Nelson Mandelas statement from he dock
Instead of giving evidence Nelson Mandela decided to make a statement from the dock
to set the tone for the defence. This meant that he would not be constrained by the rules
of evidence and the limitations it imposed regarding questions. Such a statement did not
carry the same weight as evidence under oath and jeopardized his position regarding his
guilt or innocence because the court could not rely on its veracity. However, Mandela and
the defence team thought that it was important to contextualize the case, in order to
educate the judges about the aims and aspirations of the accused and their organisations.17
Towards the end of his statement Mandela said the following:
Africans just want a share in the whole of South Africa; they want security and a stake in
society. Above all, we want equal political rights, because without them our disabilities
will be permanent. I know this sounds revolutionary to whites in this country, because the
majority of voters will be Africans. This makes the white man fear democracy ....
During my lifetime I have dedicated myself to this struggle of the African people. I have
fought against white domination, and I have fought against black domination. I have
cherished the ideal of a democratic and free society in which all persons live together
harmony and with equal opportunities. It is an ideal which I hope to live for and achieve.
But if needs be, it is an ideal for which I am prepared to die.
[Ordinarily Mandela could not be quoted by the press because he had been banned by the
government. However, because he made his statement during the trial his words were
given widespread local and foreign press coverage].18
[QUESTION: IF ANY OF THE DEFENDANTS IN THE CHICAGO SEVEN TRIAL
HAVE WISHED TO HAVE MADE A STATEMENT FROM THE DOCK AT THE
BEGINNING OF THE DEFENCE CASE - INSTEAD OF GIVING EVIDENCE DO
YOU THINK THAT THE COURT WOULD HAVE ALLOWED THEM TO DO SO?]
5. SADDAM HUSSEIN TRIAL
Saddam Husseins trial is still ongoing. Apparently the defence is convinced that Saddam
will be found guilty and that his best chance is to inflame the insurgency and to stretch
out the trial as long as possible so that eventually the United States will agree to set
Saddam free in return for his help in restoring peace to Iraq.19 Former Attorney General
Ramsey Clark, (who wanted to give evidence in the Chicago Seven Trial) has been
accused of clearly importing the disruptive trial strategies that were perfected in the
Chicago Seven Trial for use in the trial of Saddam Hussein, seeking to achieve similar
results.20
5.1 SADDAM HUSSEINS PRELIMINARY HEARING BY THE INVESTIGATIVE
JUDGE
When Sadam Hussein was brought before the investigative judge to interrogate him and
the following exchanges occurred:21
JUDGE: Please state your name?
SADDAM: I am Saddam Hussein al-Majid, the President of the Republic of Iraq.
JUDGE: Profession? Former President of the Republic of Iraq?
SADDAM: No, present. Current. It is the will of the people....
[Saddam has a number of exchanges with the judge and refuses to sign any statements
without the presence of a lawyer. The interrogation continues:
SADDAM: You also have to introduce yourself to me.
JUDGE: Mr Saddam, I am the investigative judge of the Central Court of Iraq.
SADDAM: So that I have to know, you are an investigative judge of the Central Court of
Iraq? What resolution, what law formed this Court? Oh, the coalition forces? So you are
representing the occupying forces?
JUDGE: No, Im an Iraqi representing Iraq.
SADDAM: But you are .....
JUDGE: I was appointed by a presidential decree under the former regime.
SADDAM: So you are reiterating that every Iraqi should respect the Iraqi law. So the law
that was instituted before represents the will of the people right?
JUDGE: Yes, God willing.
SADDAM: So you should not work under the jurisdiction of the coalition forces.
JUDGE: This is an important point. I am a judge. In the former regime, I respect the
judges [sic]. And I am resuming and continuing my work ...
[Further exchanges follow in which Saddam reminds the judge that he must value the law
and respect the will of the people that decided to choose Saddam Hussein as the leader
of the revolution. Saddam also tells the judge that the articles of law under which he is
being charged were signed by him (Saddam) and that now you are using the law Saddam
signed against Saddam. Saddam then says the following:
SADDAM: Then I hope that you remember you are a judge empowered by the people. It
doesnt really matter whether you convict me or not; thats not whats important. But
what is important is that you remember that youre a judge. Then dont mention anything
[about] occupying forces. This is not good.
Then judge in the name of people. Then thats good. Then judge in the name of the
people, that is the Iraqi way.
JUDGE: Mr Saddam, this is an investigative process.....
The judicial process let me answer this clarification first, Im not deliberating a case
against you, Im investigating, interrogating you.
Second, the President is a profession, is a position, is a deputy of the society. Thats true.
And originally, inherently, hes a citizen. And every citizen, according to the law in the
Constitution, if this person violates the law has to come before the law.
[Saddam Hussein requested to have his private defence lawyers present with him in the
investigative sessions and this was granted by the court].
[QUESTIONS: ARE THERE ANY SIMILARITIES BETWEEN THE STATEMENTS
MADE BY SADDAM HUSSEIN AT HIS PRELIMINARY HEARING AND THOSE
MADE BY NELSON MANDELA IN HIS OPENING STATEMENT DURING THE
INCITEMENT CASE? IF SO, WHAT ARE THEY? IF NOT, WHY NOT?
5.2 EXCHANGES DURING SADDAM HUSSEINS TRIAL
[Numerous heated exchanges have taken place during Saddam Husseins trial in some
cases resulting in his lawyers walking out. So far during the trial three defence lawyers
have been assassinated. Some of the exchanges have involved high profile foreign human
rights defence lawyers including the previous United States Attorney General, Ramsey
Clark. A number of exchanges took place between the court and Curtis Doebbler,
Saddams American defence lawyer who was appearing for the first time before Chief
Judge Rauf Abdel Rahman, on 13 June 2006. Witnesses, including two former body
guards of Saddams half-brother, Barzan Ibrahim al-Tikrit (also on trial), were giving
evidence for the defence, and Doebbler had requested more time to prepare. The judge
had previously adjourned the trial on 5 June 2006, and had stated then that the defence
team had been dragging its feet, and had not presented enough witnesses for the eight
defendants. The exchanges probably went something like this:22
DOEBBLER: We want to work for justice but that can only happen by having a fair trial
and under the current circumstances that is impossible. We ask that the trial be stopped,
and you give us more time to prepare.
COURT: This is a session for listening to witnesses. This is not a session for your
defendants.
[The trial continued and the two former body guards of Barzan were presented as
witnesses for the defence:
BARZAN (interrupting the proceedings): My companions were scared to testify.
COURT: Why were they afraid? Are there ghosts here?
BARZAN: You are scary.
COURT: You are the scary one. Guards, remove Mr Barzan from the court!
BARZAN (as he is being removed): You are acting like a dictator!
[Saddam stood up to defend his lawyers and said that Barzan had been hit as he was
being dragged out of court by the guards. Saddam then said the following:
SADDAM: I cannot accept that the defence lawyers be insulted, I am concerned about
the dignity of Iraq and the Arab in his land. Iraq is being crushed by US tanks. You know
the situation and the blood being shed every day is more than the blood shed in Dujail at
the time [Saddam and his seven co-accused were being tried for the torture and murder of
148 Shiites in Dujail village in 1982, after a botched assassination attempt on his life].
SADDAM: I suggest to your honour that you accept my absence from the sessions if it
would prove to be better to allow the attorneys and others to reach justice ... The court is
favouring the prosecution... This is unbalanced between the two halves and when this
happens an Iraqi will revolt.
[QUESTION: ARE THERE ANY SIMILARITIES BETWEEN HOW THE COURT
HANDLED THESE EXCHANGES IN SADDAMS TRIAL AND WHAT HAPPENED
DURING THE CHICAGO SEVEN TRIAL? IF THERE ARE, WHAT ARE THEY? IF
NOT, WHY NOT?]
6. CONCLUSION
The trials of the Chicago Seven, Nelson Mandela and Saddam Hussein must be seen in
their respective contexts. However, they all raise important questions about the
legitimacy of the legal process and how accused persons should defend themselves, and
be defended by their lawyers, in political trials. The trials can be used to teach law
students and lawyers much about the role that lawyers, judges and defendants play, and
should play, in the criminal justice system.
The three trials can also be used to illustrate the Critical Legal Studies approach to
jurisprudence whereby law is seen as perpetuating the concepts of hierarchy and
alienation in society, and legitimizing an unjust social order23 although some might
argue that this is not the case in respect of the Saddam Hussein trial.
The Chicago Seven trial was one of the catalysts for the growth of the Critical Legal
Studies movement. The tactics used by Nelson Mandela, his co-accused and their lawyers
in the early 1960s, anticipated the Critical Legal Studies movement by several years.
Saddam Hussein and his co-defendants have been seen by some as a modern version of
the Chicago Seven trial in a different context the Chicago Seven reloaded. Saddam
Hussein24 and one of his defence counsel, former United States Attorney General Ramsey
Clark, 25 (who was involved in the Chicago Seven trial), have been accused of adopting
the guerilla tactics of the Chicago Seven.
Professor David McQuoid-Mason BComm LLB (Natal) LLM (London) PhD (Natal)
Professor of Law, University of KwaZulu-Natal, Durban, South Africa
President, Commonwealth Legal Education Association
Vice President, IBA Academics Forum
Email: mcquoidm@ukzn.ac.za
Fax: +27 31 260 2559
Chicago2 seven paper.doc
1 See generally, Douglas O Linder The Chicago Seven Conspiracy Trial www.law.umkc.edu/faculty/proj
(visited on 22 June 2006).
2 The present writer does not have access to the exact transcript but has tried to recreate the exchanges from descriptions of what happened.
3 See footnote 2 above.
4 Douglas O Linder The Chicago Seven Conspiracy Trial http://www.law.umkc.edu/faculty/proj (visited
on 22 June 2006).
5 Anthony Lukas The Barnyard Epithet and Other Obscenities ; cf Douglas Linder The Chicago Seven ,
http://jurist.law.pitt.edu/trials2.htm (visited 23 June 2006).
6 Anthony Lukas The Barnyard Epithet and Other Obscenities ; cf Douglas Linder The Chicago Seven ,
http://jurist.law.pitt.edu/trials2.htm (visited 23 June 2006).
7 See generally, Douglas Linder The Chicago Seven , http://jurist.law.pitt.edu/trials2.htm (visited 23 June 2006).
8 Douglas Linder The Chicago Seven , http://jurist.law.pitt.edu/trials2.htm (visited 23 June 2006).
9 Nelson Mandela Long Walk to Freedom (1994) 235.
10 A kaross is a cloak or blanket made of animal skins.
11 Meaning Power and The power is ours! (Nelson Mandela Long Walk to Freedom (1994) 305).
12 Nelson Mandela Long Walk to Freedom (1994) 311-312.
13 Nelson Mandela Long Walk to Freedom (1994) 312-313.
14 Nelson Mandela Long Walk to Freedom (1994) 319.
15 Nelson Mandela Long Walk to Freedom (1994) 341.
16 Nelson Mandela Long Walk to Freedom (1994) 341.
17 Nelson Mandela Long Walk to Freedom (1994) 347.
18 Nelson Mandela Long Walk to Freedom (1994) 353-354.
19 Edward Wong Hussein Thinks He will get Death Penalty but sees Escape Hatch, His Lawyer says New York Times June 25, 2006; cf Issue #41 Did the Dujail Trial Meet International Standards of Due Process? Michael P Scharf While Far from Perfect, the Saddam Trial was not Fundamentally Unfair
http://www.law.case.edu/saddamtrial/ (visited on 9 July 2006).
20 Michael P Scharf While Far from Perfect, the Saddam Trial was not Fundamentally Unfair
http://www.law.case.edu/saddamtrial/ (visited on 9 July 2006).
21 Edited transcript from http://www.msnbc.msn.com/id/5345118/ (visited 22 June 2006).
22 The present writer did not have access to the actual transcript but has based the exchanges on reports by SAPA-ASP in The Mercury Tuesday June 13 2006.
23 See for instance, P Gabel and P Harris Building Power and Breaking Images: Critical Legal Theory and the Practice of Law (1982/3) 11 Review of Law and Social Change 369 372.
24 See above para 5. See also http://nyls.edu/pages/3987.asp+chicago+saddamtrial (visited on 9 July 2006).
25 Ramsey Clark has apparently said that it is the United States rather than Saddam Hussein should be on trial for the unlawful invasion of Iraq, the subsequent destructive siege of Falluja, torture in prisons and the militarys role in the deaths of thousands of Iraqis (www.worldnetdaily.com/news/article.asp? Article-ID=42165).
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