Keep banging your head
The local Waco paper published an interview with Baylor Law Professor Mark Osler. Mark (who is a really good guy by the way) was the attorney who wrote the briefs in Spears. Before coming to Baylor, Mark was a federal prosecutor in Detroit. As such, he saw a lot of crack defendants, and recognized the irrational disparity between sentences for crack and powder cocaine.
What struck me about the interview was the story he told about a routine sentencing in a crack case. The judge asked the defendant's lawyer if he wanted to make the usual futile to the crack guidelines. The lawyer proceeded to launch into a 20 minute argument setting out the lack of any basis for the disparity, as well as the racial discrimination created by the guidelines. According to Mark, he realized at some point during the argument that something needed to be done to change the guideline. Since he has come to Baylor he has embarked on a mission to do just that, which culminated with Spears.
So what do I get out of this story? The need to persevere, and continue banging your head against the wall. There is no doubt the same objections had been routinely made in case after case, with the same results. There is probably also no doubt that the lawyer had no expectation that his objection would be successful. More than a few lawyers had probably even been chastized for making those objections. The lawyer did his job though, and although he didn't win in that case, his objection achieved something he probably could have never imagined.
Too often lawyers give up, and don't make objections they know they are going to lose Change is slow most of the time, especially with the law. Lawyers made the same objections for years to the Texas Special issues, and were eventually successful in Penry. Without lawyers to push that issue, as well as others, we would never see change.
So if you know the law is wrong, don't give up. Keep making the objection, even when you know it's futile. Sooner or later someone may listen - as in this situation, it may be someone you never expected.
