Notes from Upstream: My Adventure in Criminal Defense

In which our hero shows he can play a courtroom as masterfully as he does musical instruments.

Our ongoing Summer of Love reminds me of the time I represented an accused criminal. It was the one and only time in my career I practiced criminal law.

I can’t pinpoint the precise month, but it was during the Reagan Administration and less than six months after I obtained my law license. I was working as an Associate for a Big Firm.

One night a friend from law school called and asked a favor. He wanted me to represent two demonstrators the police had arrested after a Minneapolis protest against U.S. policy in Central America. The two had been picked up in a post-demonstration sweep.

According to my friend, all I needed to do was to drive down to the jail and get them both out on what he called “lawyer’s recognizance,” which I could arrange with a simple phone call to a judge. After that, my work would be finished. The experienced criminal defense lawyers of Legal Aid would take it from there.

This sounded more appealing than the memo writing I was doing as a drudge associate at the Big Firm, where I’d been scrivening away like Bartleby in the law library.

At least I’d be talking aloud on behalf of another human being. I hadn’t yet had a single chance to do that. And wasn’t speaking on behalf of human beings the point of being a lawyer?

Equipped with the two names my friend gave me, I drove down to the jail and showed my lawyer ID and signed in. I waited in a room until a deputy took me into a another room to meet my first ever criminal defendant client.

I don’t remember his name, so I’ll call him “Paul.” He was a fit young man in his late twenties. Paul showed no obvious signs of dementia or drug use, but he also displayed one of the flattest affects I’d run into. He showed no interest in his situation or in me. He wasn’t even rude.

Paul struck me right away as a sociopath. I had already run into a few sociopaths. In politics they knew little beyond a few primitive slogans, but they had an itch for action, an itch they scratched by doing harm.

Paul was the type we see multiplying now, perennial protestors who indulge violent nihilist fantasies to serve as shock troops for their tendentious “movements.”

Picture the white guys Kyle Rittenhouse shot in Kenosha a few years ago. Does anyone believe that what motivated those low-level white street thugs to burn and loot and to attack Rittenhouse was intense concern over civil rights for black people?

I do not recall what Paul was arrested for, but I remember thinking that he had probably done it. We never got far enough to talk about that anyway, because this particular thug had no use for the law or for me. He didn’t even want out of jail. After about fifteen minutes, I left, satisfied to abandon Paul to his little hole.

I waited outside again for another few minutes until the same deputy took me in to see my second client.

He was a frail young man in his twenties. I no longer recall his name, so I’ll call him “Peter.” He was obviously terrified to be jailed and grateful to see me. Peter was a graduate student in some soft subject at the University of Minnesota. He struck me as a bookish fellow who didn’t know much about the real world. His blond hair was already thinning.

Peter told me his story. For some graduate student reason, he had become dissatisfied with the nuances of American foreign policy in Central America. He saw some posters for a protest against that policy. He followed an impulse and went.

That evening, he joined hundreds of other protestors who gathered in a Minneapolis park. A bunch of loudmouths delivered stirring, incomprehensible speeches through bullhorns. The leaders marched off down a street chanting. Peter tagged along.

The march confused Peter. The leaders took their crowd on a crooked and aimless route, first down one street, then another, without any clear destination. To Peter, it made no sense.

Finally the leaders led their followers into a dead end. On one side stood a row of police officers, barring any detour off the route for which the leaders had obtained their permit. On the other side stood the crowd, its leaders yelling and chanting and inciting.

I must pause here for some Marxist “theory.”

According to Marxists, most of us are trapped in “false consciousness.” The principles normal Americans believe in, like freedom of speech, democratic voting, the rule of law and due process are nothing more than a bourgeois mask to hide the true power relations our rulers impose on the rest of us.

Only the vanguard understands the underlying reality. Only the vanguard possesses “revolutionary” consciousness, that is, awareness of the truth. In that sense, these vanguard intellectuals are no longer asleep, but “woke.”

“Woke” means awakened to the hidden truth. That’s where the word comes from.

This notion of wokeness applies to the so-called “Right” as well as to the “Left.” Like their counterparts, “conservative” media outliers like Tucker Carlson’s favorite “historian” Daryl Cooper and the ever more virulent crew of Jew haters have awakened likewise to the true situation, which for them is that the evil Jews secretly control everything.

Like Marxists, they see their role as bringing their secret forbidden knowledge to the rest of us, and in this process, securing for themselves money and power and most importantly clicks.

Which helps explain Tucker Carlson’s “just asking questions” about poor misunderstood Hitler.

Now back to Marx. How can the woke vanguard “raise” the “consciousness” of some ordinary slob from its current comatose condition?

They have learned the hard way that argument doesn’t work. Their arguments make no sense to anyone who is not already convinced. That’s why they have seized our educational system: to create a generation of the already convinced. We see graduates of that generation swarming our universities, decked out in keffiyehs, spouting hate-filled slogans in the hysterical unanimity common to all mobs.

The already convinced.

But what about those who have escaped indoctrination? The unwoke who have yet to learn?

Its proponents claim Marxism is scientific. Like actual scientists, Marxists make predictions. But their predictions go wrong: the western working class gets richer, not poorer; of all governments, socialist governments commit the worst crimes against humanity; snow continues to fall and the polar bears happily breed and multiply and gobble down baby seals the way they’ve always gobbled them down.

So, as Lenin asked, “What is to be done?”

How about violence? Getting hit over the head with a stick or pepper-sprayed in the face will confront the slow-witted dim bulb with reality and unmask the hidden dictatorship. State violence will “radicalize” him. It will raise his consciousness.

This was the consciousness raising the leaders sought for Peter and any other suckers they lured there under false pretense of “peaceful protest.”

It was the same old bait-and-switch. They invited people to a peaceful protest, then provoked violence, in this case by trapping their followers in their mob and attacking the police.

This time, a blond protester threw a brick at the police line and hit an officer in the skull and ran away.

Peter saw none of this. Bored and confused by the pointless peregrinations, he’d already bugged out.

As Peter walked down the street back to his campus, police were on the hunt for a blond man. They spotted Peter and pulled over in their squad car. They grabbed and handcuffed him and stuffed him in their car.

Naturally, they were ticked off about the punk who’d attacked one of their own. As they drove Peter to jail, they discussed in great detail how they were planning to express their outrage: they were going to work him over, pound on his own head, and beat him to a pulp. With excellent cop imagination, they recited a list of escalating retributions.

Actually, they never did any of that, but they did scare the snot out of Peter and help educate him in the ways of this world he’d crossed into by mistake

That was the story Peter told me. He was thrilled to have any lawyer, even me. I went out and called a judge and got Peter released pending his court appearance at his Arraignment.

The next day, I contacted Legal Aid, who promised me they’d show up for Peter at his Arraignment.

The morning of the Arraignment, I went to court as I’d promised, if only to comfort Peter. Peter dutifully showed up as he had promised.

Legal Aid did not show up as they had promised. (Never trust a do-gooder to keep a promise. They’re too busy doing good to bother with specifics.)

As Peter and I sat there, a clerk called out Peter’s name, looking for his lawyer.

Who was me, it turned out, because the long loud silence made it clear that Peter had no other. I stood and stepped forward, girded for legal battle.

Ready for action.

A brief break in the action gave me three minutes to call a public defender friend and cram on criminal procedure, for example, what an “arraignment” was.

A clerk shunted Peter and me into a little room where a prosecutor waited. It was obvious that the authorities knew by then that some other blond guy had thrown the brick. The prosecutor was an overworked young woman just as eager to dump her dog case as I was to help her do it. She eagerly agreed to postpone the day’s proceedings.

A week later Peter and I received notices in the mail. His case was dismissed with prejudice.

I received a letter from Peter filled with sweet but gratuitous gratitude.

The morning after first getting Peter out of jail, I had followed our Big Firm rules and notified my bosses that I had taken on this disreputable pro bono client all on my own and without their permission. My Big Firm “mentor” told me that I had somehow “stepped in it,” but I didn’t care, and neither in truth did he.

If I couldn’t help out some naïve fellow like Peter who was being suckered and pushed around, what would be the fun in being a lawyer? That thought became my guiding principle as an attorney.

There is a larger point.

Civilization is under assault. The phrase “robbing Peter to pay Paul” was never more apt.

In fact, before Signore Ponzi perfected his famous scheme and got it renamed after him, people called his con game “Robbing Peter to Pay Paul.”

The Revolution is just another con game. Its cynical Pauls exploit the naïve Peters to make it happen. If nothing else, the Pauls need the Peters for cover. They hide among the Peters to throw their bricks.

The Pauls exploit their own freedom so that the Peters will lose theirs, not just in the short term but in the long term, after they’ve established their dictatorship.

It is the Pauls who make the Revolution and the Peters who pay for it.

We need to separate the naïve Peters from the sociopath Pauls and then kick the excrement out of the Pauls. Doing that is a necessary precondition for us to thrive as a civilization.

Max Cossack is an author, attorney, composer, and software architect (he can code). He wrote Where There Is No Man, a novel of an accomplished criminal defense lawyer in a life-and-death struggle against American jihadis.