Category Archives: Legal Studies

What happened at court

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I received a notice from the Superior Court of a hearing on a motion for contempt filed by Randall Shield Wolf Trapp, lead plaintiff in the lawsuit that had won protection for Native American Indian religious practices in Massachusetts prisons. Shield Wolf had filed the motion pro se, “for himself,” without representation, so it’s unusual that I got a notice to appear. More unusual is the fact that I had been an attorney pro hac vice in the case, meaning that I am not a member of the Massachusetts Bar, but was admitted for the purposes of this case only, on motion by my co-counsel, Robert Doyle, who is a member; but Bob didn’t get a notice of this hearing!

We figured something was screwy, but we went to court. We got the papers from the clerk and saw what Shield Wolf had filed: a motion to show cause why the Department of Corrections (DOC) should not be held in contempt of the court-ordered Agreement, because it has prohibited the use of tobacco in the kinnickkinnick mixture (for smoking and in Medicine bundles). The Agreement states that religious ceremonies in the prisons shall be based upon Wampanoag traditions. Shield Wolf’s motion argued that a tobacco mixture is in accord with Wampanoag tradition.

We saw that the court had issued a habeas writ, ordering the DOC to bring Shield Wolf to court for the hearing. When we looked for him, however, we found he had not been brought to court. We were disappointed not to see him. He is a thoughtful person, whose conversation always opens philosophical vistas. He had been the inmate leader of the original Native American Circle at the time the original litigation began.

Bob and I went to the courtroom at the scheduled time, to see what might happen and what, if anything, we could do. Staff Attorney Joan Kennedy appeared for the DOC. The judge, Ernest Murphy, told the court officer to find Shield Wolf, but he could not be found; he was not in the building and there was no information about his whereabouts. The judge took no action to enforce his habeas order, and, instead, said he wanted to “have a discussion” about the motion. He recognized that neither Bob nor I represented Shield Wolf, but said, since we were familiar with the case he wanted to explore the Constitutional and Native American religious issues. We said we had only seen the motion that morning; the DOC attorney said she had not seen it at all. The judge told her to “calm down,” and handed her the court’s copy and said she should read it and then speak to it. We had a few minutes break while she read the motion and looked through her whole file, making notes. When she was ready, the court reconvened.

The judge asked Kennedy to speak first. She talked about the Native Circle being in existence a long time, and said it was working well. She said she had spoken to the Superintendent at Gardner prison recently and been told there were no complaints about anything with the Circle. She said tobacco was not mentioned specifically in the Agreement, and that the proper route for complaints was not a contempt hearing, but through the DOC Religious Services Committee. Then she said that one of the names on a Circle member list looked like a Muslim name.

Bob and I both spoke. We pointed out this was a pro se matter, that we had not entered appearances at this hearing, and that Shield Wolf was doing a good job with the motion and should be provided an opportunity for a hearing through enforcement of the habeas. I said the DOC attorney was confusing different prisons, that Shield Wolf was at Norfolk, not Gardner, that I was aware of many complaints from Native Circles in several prisons that had been made to the Religious Services Committee with no results, and that a contempt hearing was appropriate. I also said the remark about a Muslim name seemed irrelevant to the issue and designed to arouse suspicion in the current political climate.

The judge said, “Where there’s smoke, there’s fire.” I heard this as an acknowledgment of a problem with the smoking mixture, but he refused to get involved. He said nothing about the ignored habeas. He said the existence of other complaints meant this motion is only the “tip of the iceberg” and anything he ruled would not end the overall troubles. He said Shield Wolf should take the matter to the Appeals Court, since it had ordered the settlement Agreement. I pointed out that the Agreement says it shall be enforceable in Superior Court; the judge said that didn’t matter. I argued that the other issues were not before him — only the motion from Shield Wolf — and he said again it didn’t matter. He denied the motion.

We were very upset, and walked out without waiting for Attorney Kennedy. On the way home, we talked about various options for Shield Wolf. Before I could bring myself to write about those, I wrote the prose poem. It got much off my chest.

Due Process – a prose poem

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This is a prose poem I wrote the day after a judge denied a prisoner’s motion to hold the department of corrections in contempt for denying the terms of a court-ordered agreement to respect American Indian religious freedoms in prison. It was published as a “Native Currents” column in Indian Country Today on 16 February 2007. http://www.indiancountry.com/content.cfm?id=1096414507

[Information about the case, Randall Trapp, et al. v. Commissioner DuBois, et al., is online at http://www.umass.edu/legal/derrico/trapp/

DUE PROCESS

Many years ago, I wrote that due process is a sham. I believed it then, and had enough experience with lawyering for Navajos in white man’s courts to know it was true: There’s a lie at the core of law, that says the law is for everyone, rich or poor, great or small.

Blindfolded justice, they say, is a symbol of law’s equality: She cannot see who is before her, and must make decisions based on what is in her mind’s eye— looking at the law and listening to the facts. But that’s not what the blindfold does. Instead of protecting her from her own potential bias, the blindfold on justice prevents her from seeing through the scheme of due process to the scam of judicial behavior.

For years after my Navajo lawyering, I put my faith in political process and popular uprising. I looked to the streets, the newspapers, and the schools to provide a sense of—a demand for—justice, equality, and righteousness. I looked to direct action in the “marketplace of ideas” in the press, in the classroom, and in the halls of people’s institutions. I counted on a shared appreciation for democratic values and enlightened self-interest.

Years passed, again, and many political disasters transpired: evil presidents, corrupt legislators, bad governors— even universities became oblivious to injustice and equality, and chased after grants, greedy for social status. It became enough to make an honest person throw up hands in despair.

Long after abandoning my earlier understanding of law as fairness, I found myself once again embracing due process: in the face of fascism, where everything, and everyone, becomes fodder for grandiose delusions of forced utopian futures, where the future becomes an excuse for terror in the present, where every official becomes a czar— in this context, I revisited my view of due process, and revised my criticism of E. P. Thompson. The rule of law, I decided— the opportunity to make a stand, to have “a day in court”— certainly looks like “an unqualified good” when we see the alternatives.

For a few brief moments, I tried to put my faith again in judicial process. What else, I thought, have we got? In those brief moments, I filed briefs.

Now, I find, the latest evidence from courts, nearby and far, in cases where freedom and rights are at stake, shows me, again, that the law “has nothing to do with justice.”

I rummage in the closets of my mind and on the backburners of my heart, finding meaning and purpose in things I had put aside to make a career: My own writing, whether or not published; my own music, whether or not proficient; taking care of things, and friends; walking, being myself. I put my faith, hope, and effort there, here, today.

As a people and a species, we may, some of us, give our best, and sometimes our all, to make law meaningful as a check on power; but the reality of law and society shows us, over and over, that the only real meaning in all this giving is the giving. There is no getting from law. To say, with Dickens, “the law is a ass,” maligns the ass.