Steve Martini: Shadow of Power

“Anything else you need from me?” Sam asks, then slaps his head. “Of course there is. Let me write you a check.”

“Listen, we’ll talk about it later,” I tell him. “I’ve got another meeting, and I’m running late.”

“Sorry. I shouldn’t be taking up so much of your time.”

“If not you, then who?” I walk him to the door.

He turns, squeezes my arm at the shoulder. “Thanks.”

“Try not to worry.”

He nods and is out the door. Gone.

I close the door behind him. I have no appointment. But I couldn’t think of any graceful way to stop Sam from talking about money. The fees and costs in a case like this will bankrupt even an upper-income family. Welcome to the justice system.

It is an axiom of criminal defense that a good lawyer must know his victim at least as well as he knows his own client. To that end, Harry and I are huddled this morning in the conference room at our law office on Coronado Island near San Diego.

Even before the picture appears on the screen, I can visualize his image and facial expressions. Terrance Scarborough is sufficiently familiar to anyone who has ever heard the word “law” that you could say he has the kind of recognition that Washington has on the dollar bill. Scarborough has been the ultimate media monger for more than a decade, on constant call as a legal expert for any network or cable channel that would have him. Set up a camera with a red light and Scarborough would cut a swath through humanity to get to it.

It is rumored that instead of legal briefs he carried only a clean shirt, a tie, and some Pan-Cake makeup in his briefcase. He had racked enough frequent-flier miles on trips between the networks in New York and CNN in Atlanta that he could fly to the moon for free.

Although he was an adjunct professor of law at Georgetown, I have yet to find anyone who took a class from Scarborough. While technically on faculty, he spent his time writing treatises on radical social theories. Like Mao, he seemed to be working on his own Little Red Book, anything to inspire discontent and class strife.

He garnered enough traction to generate a fair amount of social heat, and along the way he made himself a staple of television’s cable age. Without question, Scarborough had a messianic need to be the constant center of attention. According to Harry, he has now achieved that ultimate goal, posthumously, and, if I am reading my partner correctly, deservedly. So meager is Harry’s sympathy for Scarborough that I have been left to wonder a few times whether Harry’s hammer is missing from his own toolbox.

Scarborough’s motives, like most things in life, are a question of perception. It was Benjamin Franklin who is reputed to have said that “revolution in the first person is never illegal, as in ‘our revolution.’ It is only in the second person, ‘their revolution,’ that it becomes illegal.” Perspective, being a fine line, involves walking in the shoes of another. Yesterday’s demagogue is tomorrow’s committed leader when his message begins to resonate with the public-and so becomes elevated to today’s political martyr when he is murdered.

We have gathered a number of recent news video clips from an online clipping service and had them burned onto a DVD.

As Scarborough’s image flickers on the screen, it is impossible to deny that he possessed a certain charisma. Six-one and slender, so that dark power suits hung well from his body. Everything about him lent an edge of authority to his argument, from his emerald eyes and sculpted cheekbones to the dapper cleft in his chin. If you turned down the sound and just looked, you might see vestiges of Cary Grant, until you listened to the words.

“What is so insidious, so sinister, is the way in which the nation’s Founding Fathers, people like Madison, Franklin, and Adams, concealed the words of slavery from the public and from history. They slipped the offending language into the Constitution, where it slithered like a hidden serpent through their grand experiment in Democracy,” says Scarborough. “And to this day no one has seen fit to remove those words.

“You can complain about the Bolshevik Revolution and its failure to deliver,” he says. “But there is no deal in history dirtier and more deceptive than the inclusion of slavery in the United States Constitution. What is worse, these offending words are still there, for all to see, there in the organic law of this nation. They may be dead-letter law, no longer enforceable, but they are still visible, AND THEY ARE STILL OFFENSIVE!”

This is the point of Scarborough’s thesis: the manner in which the Constitution is amended. The video we are watching is from a speech he gave in the weeks before he was killed. It was delivered at a university near Chicago while he was on tour for his book Perpetual Slaves. The audience is mostly young, many of them black.

“If you don’t believe that the old Rebel flag of the defeated Confederacy should be hanging outside in front of state capitols in this nation, just beneath the Stars and Stripes, then how is it that the language of slavery should remain visible in the United States Constitution? Is there a different standard for the federal government?” he asks.

“What is so intellectually dishonest is that these ‘great men,’ the minds of the American enlightenment-Adams, Franklin, Madison, and others-dodged the use of plain language when it came to concealing slavery. And nothing has changed. The leaders of this nation continue to dodge it today.

“Look, search, and you will not find the words ‘slave’ or ‘slavery’ anywhere in the Constitution. No, they insult the descendants of slaves, and the national government has seen fit to continue to allow these to exist in print to this very day.

“Look at the infamous fugitive-slave clause, Article Four, Section Two, of the Constitution. This was the cardinal law of slavery crafted at the birth of the nation, the provision that crushed even the shadow of a dream of freedom for African slaves. And did it use the words ‘slave’ or ‘slavery’? No, of course not.

“It uses the euphemism ‘No person held to service or labor’ who escaped to a free state was to be freed. Why? Because the Constitution at its inception says that they should be dragged back and delivered up not to their ‘masters’ or ‘owners’ but to ‘the party to whom service or labor may be due.’

“And have these words been removed from the Constitution?” Scarborough puts a hand up to his ear and listens.

Some in the audience shout, “NO!”

“That’s right. The language is still there, a monument to the guile and craftiness of the slave owners who crafted our Constitution.

“Read Article One, Section Two, the insidious three-fifths clause, and tell me what it means or, more important, WHY IT IS STILL THERE. The continued appearance of these words is a national offense, an insult to every African American walking on this continent.

“Historians know what it means, because they study it. Lawyers know what it means. The federal courts know what it means, because they enforced it. Congress knows what it means, because they passed the enabling statutes that allowed the institution of slavery to function. And Congress has done nothing in more than a hundred and fifty years, since the Civil War and the repeal of slavery by the Thirteenth Amendment, to remove the offending words from the Constitution. Members of Congress sit there and complain about the Dixie flag, and the states that fly it, while they have this stink on their own hands,” says Scarborough. He allows the fiery oratory to settle on the audience.

“In simple terms the three-fifths clause identifies all the classes of people in the United States at the time of its founding. They needed this for purposes of taxation and apportionment, the formula to determine the number of representatives each state would get in the new Congress.