Tom and the African-American Mistake

Thomas had just reconnected on MySpace with a black student he knew from high school, Jason. Jason and Tom were never friends, but they knew each other and had mutual friends for awhile. Tom never understood why they had not become pals in school. After all, they shared many of the same classes together and had known each other since Mrs. Blower’s fifth grade class. Throughout high school, Tom regarded Jason as an athlete and a scholar.

Jason was just finishing his PhD in Chemistry, and Tom was a new attorney in Las Vegas, when Tom found Jason online and instant-messaged him. Tom occasionally met students from high school, which often presented profound revelations. Tom would soon have another huge revelation with Jason.

The two chatted over a few months, talking about other students they knew. Tom was impressed that Jason had gone so far in school, and Jason was likewise impressed that Tom had finished law school and passed the Nevada bar exam.

All of a sudden, Jason stated, “You know, I was very mad at you all through high school.”

“What? Why?” Tom’s mouth fell agape as he read the words on his computer monitor.

“Something you said in fifth grade.”

“Something I said in fifth grade? What are you talking about?”

Jason hesitated, and then typed, “We were walking home from school with some friends and you said you did not like black people and that they should have separate places to live.”

Tom, usually quick to respond in contentious situations, was shocked at this declaration, and froze. He reread it a few times. Tom never walked home from school with Jason or anyone else. He rode bicycles home with his brothers and he lived in the opposite direction from school from Jason.

“I never said anything like that. I know I made ridiculous comments on occasion in school, but I could not have said something that outrageous. Even if I did harbor such beliefs, which I never have, I certainly would not have spoken them in front of someone that would have been offended by them. Could you be thinking of someone else?”

Jason did not reply for a moment. He was remembering. “Yes, it was someone else—I guess it was someone who looked like you.”

Tom then thought. After fifth grade, he and Jason had gone to two different schools before going to high school together. It was possible that Jason thought the Tom he saw in high school was the same kid that had made such a despicable remark three to four years before. They both grew up a bit between fifth grade and high school, and perhaps there were a few kids that resembled Tom.

“You mean that, for all of these years, since ninth grade, you have disliked me based on mistaken identity?” Thomas wrote.

“I think so. Come to think of it, I think I know who I mistook you for.”

“My gosh, I’m glad this got straightened out now. Better late than never. It is too bad I never approached you in high school and got to know you better. We could have cleared the air of this mistake long ago.”

Jason then said, “Yes, maybe I should have talked to you about it sooner too, but I thought you were the same guy and didn’t want to start anything.”

Thomas later thought about this revelation. Sometimes it is not wise to let something fester. Certainly, mistakes can be made and horrible judgments can result that could prevent two people from being fast friends. Thomas made the mistake of not being more sociable in high school and engaging students that seemed aloof around him. Jason made the mistake of not confronting someone that he believed insulted him to his face.

Since that conversation, Thomas and Jason have maintained sporadic but friendly contact. They live in separate States, but Thomas is very happy that yet another student from his high school days is doing well in life. This story confirmed one of the main ideas attorneys must bear in mind when examining eyewitnesses, “Eyewitness testimony is unreliable. Memory is fallible.”

However, too many innocent people were, and are, convicted on little more than such testimony. This story from Thomas’s childhood will someday work its way into a closing argument to help save someone from wrongful conviction.

Tom and the Sociopath Bully

Some bullies have an aura around them that says they are tough and will not be broken. Generally, schoolyard bullies enjoy the power and esteem of harassing a person who will not stand up to them; however, there exist a class of bullies that do not fear opposition. If you beat this type to a pulp, they will just come after you with a knife or a gun later, so it is best to avoid tangling with them.

Thomas sat back in his office chair. As a criminal defense attorney in Sin City, he had no shortage of clients. Unlike many other criminal defense attorneys who wanted money and did not care whom they represented, Thomas always sought innocent people to represent. First time offenders or people who were truly not guilty of the crime charged kept his client base small and exclusive. Yet he was busy because he found that it was often harder work to represent the innocent than the guilty.

Thomas decided long ago that he did not want to represent sociopaths. Even though sociopaths could be repeat business, they have a tendency to lie to get their way and resort to violence when they do not get their way, or just for the hell of it. Thomas did not need to worry about this element when innocent people required justice. Besides, good people paid their legal fees with honest money.

After his ten-year high school reunion, Thomas thought about those who did not attend. One in particular, John, was a bully that followed Tom through twelve years of public schooling, and every several years they had a run in. John was a stocky kid who was probably beaten at home by abusive parents and did not care about pain. He also hung with a rough crowd and seemed to enjoy violence for the sake of violence, and not for another reason. Thomas thought about some of the fights he and his brothers had against John and his gang.

In fifth grade, Tommy and his twin third grade brothers rode their bicycles home from elementary school together. John and a gang of five fifth graders saw them and started to chase, calling them every imaginative name they could muster with their limited four-letter vocabularies. Tommy’s dad, Noland, happened to drive down the street toward them in his truck and stopped.

“What’s going on?” he yelled across the street.

Tommy crossed as the five fifth graders pulled up behind his brothers, “They are chasing us. They want to beat us up.”

“Go tell them you’ll fight them, then,” Noland said. Noland always believed that standing up to bullies would make them leave you alone. But, he did not know John. To Noland, John just looked like another little fifth grader. He did not see the monster in the child.

Tommy walked back over to his brothers and faced the gang, which outnumbered and out-sized them, “I’ll take you all on!” he shouted angrily.

Over the next several minutes, the three brothers and the five fifth graders tussled. Fifth graders would pick up the younger boys and throw them down. Finally, a school crossing guard and some parents from down the street pulled up and threatened to call the police and the school, which effectively ended the melee.

Tommy and his brothers rode toward home and John and his gang followed. Noland stopped John and Tommy on the side of the street to figure out what happened while the other boys rode on.

“They called my mother a f*cking whore,” John lied without blinking.

“What!” Noland’s face contorted with fury. He set his beer can on his seat, reached out, and slapped Tommy across the face. “Get home! I’ll deal with you when I get there!”

Tommy rode home in tears. His own father did not let him speak to defend himself. Noland had just undermined the whole effort in fighting the bullies. John now knew that he could harass Tommy and Tommy would not even have the support of his own father. When Noland arrived home, his three sons endured hours of Marine corps punishment, including “dirty doubles” and other physical exercises, picking up cigarette butts along the street, and instructions on how to fight well into the evening. Tommy remembers the stench of alcohol, as this was a few years before his father gave up his addiction.

Over the next several years, Tommy avoided John in every way he could, but sometimes it was unavoidable. When Tommy had to take a bus to school in sixth and seventh grade, John knew where to find Tommy. One day in eighth grade, Tommy had just exited the bus on his way home and John, with his teenage friends in their car, chased him. Tommy ran through private yards and jumped fences. When he thought he was in the clear, he continued on foot down the road toward home, only to have John pull up near him.

John got out of the car and ran over to Tommy, who stood burdened with a violin and a book bag. Tommy was out of breath from the running and jumping he had just done. Adrenalin coursed through his veins, telling him to flee and hide instead of stand and fight.

To Tommy’s later shame, he stood there as John pushed him up against a wall, “Please, leave me alone,” Tommy struggled saying, “I have asthma, and you could kill me.” Tommy did not have asthma, but he did not want to fight this kid who had teen-aged friends and who already had Tommy’s father on his side. The adrenalin seemed to flood into his stomach, his arms felt heavy.

“You’re a weak, girly piece of sh*t,” John slapped Tommy across the face. Tommy just stood there, holding his violin. “You’re not worth it,” John punched Tommy in the stomach and then sauntered back to the car.

Tommy never told another person of this humiliating experience.

A few years later, Tom and his brothers were walking up a neighborhood street toward Frenchman Mountain with a friend. They planned to hike to the top and look down on Las Vegas. On the way, John and a couple of other kids spotted them and John decided to have some fun. He told a kid who was riding a kick scooter to run into Tom’s brother’s ankles.

“Go ahead, they won’t do anything,” Tom could hear John tell the other kid.

Tom was now fifteen and fed up. He, his brothers, and his friend outnumbered the three bullies. As the scooter was about to hit his brother’s ankle, Tom swung around and punched the kid in the face. Over the next fifteen minutes, the boys fought. Tom would punch and block in the normal boxing style. The other kid obviously did not know how to fight, and dove at Tom several times like a football tackle. On one of the tackles, Tom grabbed the kid’s shoulders and threw him to the ground with jujitsu, then sat on his stomach while pinning his arms.

“Give up!” Tom demanded.

“No way!” the kids retorted.

Tom then punched the kid in the face again so that his head bounced off the cement of the driveway they fell onto. “Give up!”

“No.”

Tom bounced the kid’s head off the cement a few more times. “I could kill you, you know.” Tom stated coolly.

“I don’t care,” the kid said. Apparently, the kid wanted to save face in front of John--the instigator, the ringleader.

Tom hit him a few more times, “Concussions can be serious--give up!”

“No!”

“Ok, let’s call it even. Neither has to give up, let’s just walk away.”

“I’ll get you off of me and then you’re done!” was the weak response.

Tom slammed the kid in the head a couple more times. The old man who lived in the home whose property they were on came out and threatened to call the police if they didn’t get off his property.

“Call the police!” Tom yelled, but the old man mumbled, "snotty brat" and ignored Tom.

“I’m letting you up, now. We can walk away from this with all of our teeth. I haven’t knocked any of yours out yet, but if I get you down like this again, you’ll need to see a dentist.”

Once up, the stubborn boy wanted to keep fighting. “You’re bleeding,” Tom pointed out, “and you probably don’t have a headache yet, but you will. I can block what you throw all day long. You’ve barely touched me. Let’s just call it a truce.”

The kid reluctantly decided to take the advice.

The crowd of neighborhood kids that had come to audience the fight disbanded as Tom and Co. continued their hike. John and his beaten bully went the other way.

That had been the last incident that Thomas can remember involving John. Thomas gazed at his computer monitor and decided to type John’s name into the criminal database to learn whether John ever had been incarcerated. Sure enough, John had a long rap sheet and was currently in prison for twelve years. John had assaulted several people with a weapon and also committed armed robbery.

“John was a sociopath as a kid, and he is to this day,” Thomas thought, “Nope, not the kind of client I would represent. The amygdala is just a little too small to be helped. The public defenders can have that joy.”

Tommy Should Be Held Back in First Grade

Tommy’s parents kept him home, while others his age attended Kindergarten. They taught him the alphabet and numbers. The only interaction he had with other children, were his two younger brothers. Tommy’s parents did not believe in television in the home, so he did not see Sesame Street or cartoons. Instead, they took him to work with them and explored the outdoors for recreation.

When he finally went to first grade in 1983, he was somewhat bewildered. He did what he thought he was supposed to do. He never raised his hand for permission to get a drink of water; he simply went.

This was forbidden.

From an early age, school taught children to ask permission and submit to authority. Tommy was a year late in this most important aspect of public education. His reluctance to recognize authority would follow him throughout life.

He was obedient when instructed in a course of action, but in the absence of instruction, he did his own thing. The other children, who had shared Kindergarten and television experiences, played together. Tommy played alone. The teacher observed Tommy’s odd, non-conformist behavior.

She must call his parents.

At the parent/teacher conference, the teacher learned that Tommy had not gone to Kindergarten. “If I had known that, I would not have accepted him in my class,” she said, “I think he will have to be held back a grade.”

“Absolutely not,” Tommy’s parents said, “He just has to get used to school.”

Tommy caught his stride in fourth grade. Thereafter, he was in the top one percent of his class, eventually graduating cum laude from UNLV, and then law school.

Thomas uses his non-conformism to defend clients who have not conformed to the expectations of State authority. His innocent clients often face severe punishment. The press libels, vilifies, and implies guilt, whenever the police or prosecutors serve them up a scandalous story. Without the aid of their attorney, they would have no chance against a money-based justice system.

Thomas muses, “If my parents had agreed to hold me back in first grade, I would have remained behind my class and probably never have felt the desire to excel. The school system tried to break my individuality, but my parents did not let it. Now I try to prevent the cold bureaucratic system from breaking others. Life is too short to live only for the expectations of others. Presumption of innocence is hard to maintain for clients when many believe that suspicion equals guilt. Most people think a non-conformist is guilty.”

John Galt should have been a criminal defense lawyer.