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EDITOR'S NOTE: Judge Dee Benson is Chief Judge of the United States District Court for the District of Utah. This article was originally delivered as the keynote address at the
Law Day luncheon on May 1, 2001, sponsored by the Young Lawyers Division of the Utah State Bar.
In the Soviet Union, and in Russia today, the first of May is celebrated as May Day- a celebration that has its origin in 1914 during the Bolshevik Revolution. Then it was a symbol of the
workers of the world uniting in throwing off their shackles. Later, during the heyday of the Soviet Union, the May Day celebration became a showcase of military power, in Moscow's Red
Square and throughout the Eastern Bloc.
On this side of the Atlantic, we Americans finally got a little tired of watching these displays of tanks and mortar launchers and came up with our own May Day celebration. In 1957,
President Dwight Eisenhower signed a Proclamation making May 1st Law Day. He almost didn't sign it because his Chief of Staff, Sherman Adams, thought it praised lawyers. But after reading
it, the President had this to say:
Sherm, this Proclamation does not contain one word praising lawyers. It praises our constitutional law system of government, our great law heritage under the Rule of Law, and asks our
people to stand up and praise what they have created. I like it and I am going to sign it. . . . I have a strong feeling there will be many who will say this Proclamation is one of the
best ideas I ever had.
And, actually, it was one of his better ideas. Certainly a lot better in Eisenhower's own opinion, than his placing William Brennan on the Supreme Court.
And ever since 1957, on the 1st of May, we've been going head to head with the Soviet Union and other communist countries. They would march out the military with all its power, showcasing
intercontinental missile systems. We would march out our law, beginning with a 16 page document called the Constitution. At present glance, by comparison, we're looking pretty good.
At the present time, I'm in the middle of preparing my final exam for my Evidence class at the University of Utah law school, so I'm a little fixated on multiple choice questions. So, I
want to ask all of you a multiple choice question about the law- this thing we're celebrating. Being young lawyers, it wasn't all that long ago that you were taking these kinds of tests
on a regular basis. This will give you a chance to relive your glory years- complete with complaining about the unfairness of the question. Here's the question:
Law is best described as:
A. A Lear jet
B. McDonald's
C. The U.S. Military
D. A cemetery plot
E. A life insurance policy
F. The heartbeat of America
Before I grade this question, I'd like to tell you just a story or two that breathe a little life into this thing we call the law. First, consider this one:
Several years ago, when I was the U.S. Attorney, I filed a criminal prosecution against a man for drug dealing. He showed up at Denny's Restaurant on 45th South, right there next to the
I-15 freeway, to sell some drugs to an undercover police officer. In an effort to look tougher, this guy brought a gun with him to the drug deal. He made sure it was in plain view in his
duffel bag next to the drugs. To look even tougher- with maybe just a hint of organized crime- he had attached to the barrel of the gun a long pipe that looked like a silencer. The man
had actually made the silencer in his garage, put grooves in it for screwing and everything. So, after the undercover officer arrested this man we charged him with distribution of ecstasy
and with using or carrying a firearm in connection with a drug deal. We also charged him with the illegal use of a silencer. For some reason, back in 1984 when it passed the Omnibus Crime
Act, Congress got really upset about guns and silencers. Carrying a gun during a drug deal carries a minimum five-year sentence, no matter what, and carrying a silencer on the end of that
gun gets you thirty more years of mandatory time. Thirty years, just for the silencer.
When I mentioned this to the defendant and his lawyer, it didn't go over well.
So, we shipped off the silencer to have it tested at the ATF laboratory. And then I discovered an interesting thing in our federal law. A gun is defined as basically anything that the
person on the other side of it thinks is a gun. You can rob a bank with a squirt gun and still be guilty of armed robbery even thought the gun is a toy. It just has to look like a gun.
Not so with a silencer. With a silencer, it turns out the law requires that the device actually must lessen sound.
When the test came back on this man's silencer, the ATF report read: "Although the device looks like a silencer, and screws rather nicely into the barrel, it does not actually
diminish sound; in fact it enhances it."
So we dismissed the silencer count, just like that, and that defendant dodged a 30-year bullet.
This law of ours does not always make sense.
A few months ago I sentenced a young man to 10 years in a federal prison for committing a hate-crime, one motivated by racial animus. The sentence was required under present federal law.
His plea bargain offer from the government before trial was 18 months. I thought he should have taken it, but he didn't. He thought he could win at trial; his lawyer probably thought he
could win at trial. He didn't, and now he has plenty of time to second-guess his decision.
The law has harsh consequences.
Last week the United States Supreme Court ruled as constitutional an arrest and jailing of a woman in Texas for not wearing her seatbelt. I was mulling that over on the way to give a Law
Day speech at Hill Air Force Base last Friday, and, there in my rear view mirror, two cars behind me was a highway patrol car with its overhead lights on. I thought how unfortunate it was
for the car behind me, who was obviously being pulled over. I want it known, I was not speeding. So the car behind me pulled over to the right-hand lane, and the patrol car didn't; he was
after me. So, I pulled over. I was driving my son's car which is most prominent as a tribute to Bob Marley. In fact, right where there should be a front license plate there is instead a
pretty good likeness of Mr. Marley himself. So anyway, the trooper approached my vehicle; I asked what I'd done wrong and all he said was "driver's license and registration,
please!" Then, after he checked me out- probably ran an NCIC on me to see if I was wanted in Jamaica- he told me he pulled me over because I was one month behind on my registration
sticker. Then he asked me if I was wearing my seatbelt when he pulled me over. I thought briefly about mentioning the Fifth Amendment, but he didn't seem to be in a particularly talkative
mood, so I heard myself say "No." So just like that, he had me. And I happened to know I could get thrown in jail for this. The Supreme Court said so just last week. So, after
about 15 minutes on the side of I-215, I left with a ticket for no registration and failing to wear my seatbelt. At least I didn't have a silencer.
The law does not always appear merciful- or even fair sometimes.
Just a few weeks ago I presided over a boundary dispute case. People who had been peaceful neighbors for 50 years were making claims over the same four acres of land that had been
condemned by the federal government, asserting legal doctrines such as boundary by acquiescence, adverse possession, and first-in-time, first-in-right recording priorities. A simple
boundary dispute became, as most litigation does, a highly-charged, emotionally draining, expensive experience. I encouraged them to settle, and they wouldn't. I begged them to settle,
knowing the law would make some of them ecstatically happy and the others painfully sad. But they insisted on their legal rights. Now, some of them are extremely disappointed. That's the
way the law works when pushed to a conclusion. And I know those people aren't speaking to each other any more.
The other day I had this young Hispanic boy before me on an illegal reentry charge. He said at sentencing that he was only 16, and therefore couldn't be prosecuted as an adult. His lawyer
accordingly moved for dismissal. I asked for some verification of his age. The defendant produced a birth certificate from Sinaloa, Mexico. It looked pretty official. Still, I thought he
was lying. He had previously served a year in an adult jail in Los Angeles; his priest from his hometown in Mexico had written to me asking for leniency and had stated in the letter that
the defendant was 20-years-old. And the defendant himself had earlier told our federal probation officer that he was an adult when he returned to the United States after his deportation.
About the only thing he had going for him was that he really did look young. This was Mexico's answer to Dick Clark.
I urged him to tell me the truth. I took out a felt-tip pen and did the math for him on an easel in the courtroom. I showed him that if he was lying to me about his age that he would
receive about five extra years in prison for obstructing justice and other reasons such as not having a chance at getting any time off for acceptance of responsibility- and that I would
have no choice but to do that because that is the law. I told him I was going to check out this birth certificate, even if it meant sending someone to Mexico, and that he shouldn't, he
really shouldn't, lie to the Court. He looked me right in the eye and said he was 16 and the birth certificate was real. I knew he wasn't telling the truth, and I, a federal judge, begged
him to reconsider, because this law of ours, it isn't so bendable sometimes. But he persisted, and so I sent Lorenzo Archuleta, a court-appointed investigator, to Sinaloa, Mexico, to
check out this birth certificate, hoping, honestly, I was, that it was accurate.
But it wasn't. A complete forgery. Even the hospital was made up. His lawyer asked for mercy, he's still just a kid - maybe not 16, but still 19 or 20 at the most, and kids make mistakes.
I gave him the five extra years.
The law can be tough.
A few weeks ago, I was asked to speak to a group of young people incarcerated at the Youth Correction Center in South Salt Lake. The leaders of the facility asked me to give these troubled
youths some advice. And I did. But I think what I told them surprised them a little bit. I told them I was going to explain to them a very good reason for not committing crimes. And that
reason, I said, is because the criminal justice system isn't fair.
It's not that it's always unfair. But I told them even though the system is designed to be fair, it doesn't always work out that way, and even if it is fair, you're probably not going to
think it was. The judge may misapply the law; your lawyer may not know the law; the law itself may be unfair; and on and on. So, my advice to them was, don't go near the line. Stay as far
away from the legal system as you possibly can. After all, it is run by human beings, which reminds me of another anecdote, one I found sort of funny, although it wasn't so funny to
everyone at the time.
Just a short time ago, a criminal fraud case was tried in my court. The jury returned a verdict after 7 or 8 hours of deliberation. The defendant and his wife anxiously waited in the
courthouse. When everyone reassembled for the rendering of the verdict, there was a lot of tension in the air, as there always is in a criminal case. I received the verdict form from the
jury foreperson, and I checked to see it was properly filled out. As to Count I, it was marked "Not Guilty." I then handed it to my courtroom deputy for reading. The defendant
and his attorney stood. The defendant's wife sat nervously on the edge of her seat. The deputy read: "We, the jury, in the above-entitled action find the defendant guilty . . . oh,
no, I mean . . . not guilty." After the initial announcement of guilty, the wife broke into tears and the defendant's knees buckled.
As I said, it's not a perfect system.
Now, with these brief stories in mind, and based on your own experiences, what do you think is the correct answer to this question? In my view, the correct answer is "c," the
U.S. Military. And I would also accept "d" or "e," a cemetery plot or a life insurance policy. Because it seems to me as I've viewed the law from so many different
angles its true worth lies in having it there, ready, willing and able, and at the same time, in using it sparingly. There is a correlation between how much we use the law and how well
we're doing as a society, as a country. The more the law can resemble an insurance policy or a grave site- there if we need it, but we hope we never do- the better off we are. Ironically,
in light of Russia's May Day theme, law is like a good army; it keeps the peace just by existing. But if we use it too much, we find somebody in Quality Assurance forgot to make sure the
wheels were on right.
Letter (A), a Lear jet, isn't the correct answer. It's costly, everyone can't afford one, and if you had one you would want to use it all the time. It's the same with McDonald's, 20
billion served, or whatever. McDonald's is made for the masses, for everyday consumption. And a warning sign for any country is how many people go to court to sue each other, or their
government. We do not want a sign on our courthouse announcing the number of verdicts rendered.
This is not to say I am not as big a fan of the law as exists today. I am. I actually love the law. I like legal issues. Paul Warner calls me a legal idiot savant, or is it an idiot legal
savant? I watch "Law and Order" reruns for fun. I think the Bill of Rights is a wonderful document. I just don't think everyday usage of the law in contested lawsuits has ever
been healthy. Hard cases make bad law; and most laws, if pressed to their outer edges, don't improve with overuse. And look at the law's excesses. Look at the O.J. Simpson case- a good
example that the system has problems. And no one can genuinely disagree with the proposition that money makes a big difference in litigation. Even though our legal framework is so vital
to our society, its use isn't what is most important to our continued vitality as a people. Other things that the law allows to exist in all their vigor fill those more important everyday
roles: things like family and community and churches and volunteerism and freedom.
When I was appointed U.S. Attorney, we were in the heart of the war on drugs. I thought tougher laws could fix that problem. I was mostly wrong, although tougher laws can provide some
important help. But we learned the only time-honored tried and proven approach to winning the war on drugs- and this is still true- is a change in public demand, and that change in
attitude is not and will not be driven by the law, but rather by all of these other aspects of society.
I have always thought it interesting that this legal framework our Founding Fathers so wisely constructed and blessed us with mainly got out of the way, and the first 150 years or so of
our history under the Constitution was devoted to large masses of different segments of American society working hard and putting together the strongest country on earth, without a lot of
attention being given to the exact boundaries of these broad and quite simple legal doctrines contained in the Constitution. I think it's most interesting that when two of the most
important of the Founding Fathers got into a major disagreement- with Aaron Burr accusing Alexander Hamilton of defamation of character- these two men who had devoted decades to creating
a system of law, settled the matter with a duel, which was itself against the law- that's why they called it an "interview." They even rowed over to New Jersey from New York,
because dueling was clearly against the law in New York. Think of it. The sitting Vice President of the United States (Burr) stepping off ten paces and firing a pistol at, and killing,
the author of the Federalist Papers, not to mention the man whose face would later grace the ten dollar bill.
My most satisfying experience from a humanitarian, feel-good-about-myself standpoint during almost 13 years of non-judge legal work, during which I was involved most of the time in
litigation with a large law firm, came from a settlement. It wasn't a big jury verdict that made me feel the most proud of my work with the law. Not even the $5 million the jury awarded
my client, Merrill Cook, back in 1981, that helped pay for all those political campaigns. No, the best ending I ever had was a settlement. It was helping find an end to a decade of hard
feelings and contention between two former friends and partners.
I find it interesting what Alexis de Tocqueville said back in the mid-1800's. He was the French scholar who spent a lot of time traveling throughout America, trying to see what it was that
was working so well. At the conclusion of his travels, he had this to say:
I sought for the greatness and genius of America in her commodious harbors and her ample rivers, and it was not there; in her fertile fields and boundless prairie, and it was not there; in
her rich mines and vast commerce, and it was not there. Not until I went to the churches of America and heard her pulpits aflame with righteousness did I understand the secret of her
genius and power.
He didn't focus on our system of laws. He focused on our goodness. On that subject he stated: "America is great because she is good, and if America ever ceases to be good, America
will cease to be great."
In closing, let me pay my own tribute to the law- for being there. And at the same time to encourage all of us to honor the laws by forgetting about them most of the time, and encouraging
clients to do that whenever it makes sense, and it makes sense more often than you might think. Answer "F," "the heartbeat of America" isn't the right answer. You're
always aware of and checking on a heartbeat. Freedom and opportunity are the better comparisons to a heartbeat. The law is like a good missile system. Let's make sure it's in good working
order, but we don't want to use it too often. I applaud all of your dedication to the law; employed with wisdom, it truly is the basis for the freedom we enjoy.
I very much appreciate the opportunity to say a few words to you today. Thank you.
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