Malum and Mao

Mississippi Gulf Coast public defender Malum in Se writes about his guerrilla operations against the state:

Last month I prepared 42 motions for bond reconsideration and set them for hearing wherever the court administrators would allow me to squeeze them in. This had all the ADA’s in an uproar calling and pleading to take them off the docket and work them out. The private defense bar was ecstatic because this forced the DA’s office to come down off several of their recommendations because my motions were sucking up all of their free time.

With our local elections two months this would be an opportune time to prepare and file Motions on behalf of all my undocumented clients demanding their right to have their consulates notified of their incarceration as required under Article 36 of the Vienna Convention.

It has become trendy in recent years to read Sun Tzu’s Art of War and apply its lessons to various ventures — an Amazon search turns up “The Art of War for Women”, “The Art of War for Managers”, “Golf and the Art of War”, “The Art of War 2008 Desk Calendar”, and “Applying Sun Tzu’s Art of War in Managing your Marriage”. Some criminal-defense lawyers see it as a guide to defending criminal cases. Sun Tzu wrote:

All warfare is based on deception.
Therefore, when capable, feign incapacity; when active, inactivity.
When near, make it appear that you are far away; when far away, that you are near.
Offer the enemy a bait to lure him; feign disorder and strike him.
When he concentrates, prepare against him; where he is strong, avoid him.

One twentieth-century strategist who studied Sun Tzu is Mao Tse-tung. The leading text on guerrilla warfare is Mao’s On Guerrilla Warfare. Mao wrote:

In guerrilla warfare, select the tactic of seeming to come from the east and attacking from the west; avoid the solid, attack the hollow; attack; withdraw; deliver a lightning blow, seek a lightning decision. When guerrillas engage a stronger enemy, they withdraw when he advances; harass him when he stops; strike him when he is weary; pursue him when he withdraws. In guerilla strategy, the enemy’s rear, flanks, and other vulnerable spots are his vital points, and there he must be harassed, attacked, dispersed, exhausted and annihilated.

Malum (a former Marine who has clearly, in the words of Iñigo Montoya, “studied his Agrippa”) is harassing the enemy when it rests, striking it when it is weary, and pursuing it when it withdraws.

To what end? Malum doesn’t say that his clients’ bonds were lowered, but lowering the bonds was not the only goal of his guerrilla operations. Such operations are not an independent form of warfare; they are one step in the total war. By harassing and pursuing the State, Malum weakens it; the private defense bar’s ecstasy is proof of his success.

3 Comments

  1. While the “Art of War” provides some theories, the Tao, has other theories, and still, there are a multitude of others. Thanks.

  2. I’ve recently applied for federal CJA panel work and was surprised when the senior attorney I followed for training commented that, “the more you fight, the worse it gets.” I thought that if that’s the case, what the hell are we doing as criminal defense lawyers except becoming the equivalent of KY jelly?

    I realize you have to “pick your battles” but my experience has been the opposite: in general, the more you fight and push trials the better the results. Granted, I can’t just push a jury trial on a “slam dunk” possession case when the search was good and the drugs were real, but it scared me to see how many “criminal defense lawyers” believe, in general, that resistance only leads to worse outcomes for clients.

    I was also surprised that when I asked a few people, several agreed with this lawyer’s assessment. If that’s what you believe, as a criminal defense lawyer, shouldn’t you go sell shoes somewhere?

  3. Glen, we can learn to be better trial lawyers anywhere from anyone.

    Anon, in lots of federal cases it is probably true that the more you fight, the worse it gets. But that statement is as wrong as can be because “lots of” does not mean “all”. The lawyers who go into a federal case with the attitude that pleading is the only way might (sad to say) do okay for most of their clients, but they’re really screwing the rest of their clients badly.

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