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Criminal Justice News

Posted on: Apr 13, 2015

By Mark Busby, Voyles Zahn & Paul

I’m going to discuss May 17, 2009.

But first, I have to confess to a poorly kept secret: although I blend in with most of you, I was born in another country – sort of. I was born in Canada. (Cue Canadian jokes…) What is life like as a Canadian living in the United States? It’s a never-ending stream of jokes and quips.
So, let me set the record straight on a few things: (1) We pronounce it “a boat,” not “a boot” – those are Yoopers; (2) we do not all know each other; and (3) while we are all universally polite, and most do like hockey, Wayne Gretzky and Rush, Canada is marked by pronounced social rifts. The United States has always been referred to as the great Cultural Melting Pot; Canada is often called the Cultural Mosaic.

There are pockets in Canada that strive to maintain an independence and identity despite being Canadian. It is hard to explain the “how” and “why” of it, but having lived in Canada for most of a decade, I can tell you that it is there, and it is real and often divisive. Quebec is the most notable conflict in Canada’s inner dialogue, but there are others. It is a dialogue that includes religion, race, politics and ethics. No less than five significant political parties vie for the soul of the country.
Despite this diversity and division, the caricature of Canada will most likely never expand to include the Sikh Mounties who fought for and won their right to integrate the turban into the uniform. It will likely never include a concept of the Quebecois beyond a lumberjack and a toque (google it). It will most likely never grow up beyond the concept of the little brother to the north, humbly deferring to the legal and military might of the United States of America, poutine in one hand, hockey stick in the other.
But, that is the purpose of caricatures. They are deceivingly complex in their effect on us, yet immovable in their simplicity. I will confess to short failings in my past and shamefully consider my own mistakes as a younger man. It’s often too easy to accept people for what they appear to be instead of what they are.
So, why May 17, 2009?
In recent weeks, we have seen what caricatures have done to our state. What do you picture when you think of RFRA’s supporters? What do you picture when you think of its detractors? What image pops to mind? Is it an image carefully crafted to consider years of struggle with a concept, or a belief, or an ideal? No, that is not in the nature of caricatures. It does not give you the benefit of understanding a struggle that may be incredibly profound.
So, what image pops into the minds of people who hear the word “Hoosier” now? Will we be given similar treatment, or will the larger family that is our country take the time to recognize a struggle of democracy built upon a gestalt of passionately held beliefs and values? What’s easier?

I cannot help but feel that we, as lawyers, have lost our way in this most recent struggle. We have lost sight of that basic respect that each person we disagree with is possessed of the same passion, the same struggle and deserving of the same deference that we are. Are we controlling the dialogue, or does the dialogue now control us?
“Each side will continue to make its case to the public with passion and conviction. But surely we can do so without reducing those differing views to caricature.” - President Barack Obama, May 17, 2009
During his first term in office, the 44th President of the United States of America stepped on stage at the University of Notre Dame to deliver the commencement address to the Class of 2009, and spoke these words.
President Barack Hussein Obama, a pro-choice democrat, “dared” to step foot on the campus of the University of Notre Dame – and the university, a pro-life Catholic institution of higher learning, “dared” to let him.
This is my alma mater – I was there in 2001 when members of the student body protested President George W. Bush’s position on the right to life as lacking the necessary aggression. President Obama’s presence on that campus is one of many profound moments in American democracy – a moment of courage for both sides. Such an intellectual and spiritual challenge and exchange should be the basis of what we do as lawyers: respect, even when we disagree. I am fiercely proud of this moment, as a Domer, and as an American.
We are inundated daily by passion and conviction in our criminal courts as we walk the razor’s edge of liberty and justice. It is there I find the greatest inspiration for the ideals an attorney should hold. To our colleagues in public service, our Public Defenders and our Deputy Prosecuting attorneys – thank you for the standard you set for our legal community. Many of our politicians and lobbyists have failed to show the respect for each other you demonstrate – yet the stakes are just as high (if not higher) in the courtrooms where you stand every day. Nobody carries a higher burden in our Courts than you do. You fight passionately, but disagree respectfully, always mindful that your opposition holds their values and goals, every bit as tightly as you do.
This inaugural edition of our newsletter brings about an opportunity for members of the criminal bar to communicate and to build the strength of our bar – a bar that exemplifies the respect for opposition for which President Obama hoped. Let’s continue to do what we do best and use those skills to build an even stronger legal community. I humbly ask the members of this section to speak out in this new forum and ask the questions you want answered. What can this bar do to enhance your practice? What subjects need to be addressed? Speak up, be heard and remember the oath we have taken to serve our clients to the very best of our abilities. That ability cannot be clouded by caricatures.
Gotta run, Hockey Night in Canada is on.

This post was written by Mark Busby of Voyles Zahn & Paul. If you would like to submit content or write an article for the Criminal Justice Section, please email Rachel Beachy at


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