Who Wouldn't You Represent?

My good pal Mickey Sherman has a new book out this week, How Can You Defend Those People?

Mickey is not only a great lawyer, he's a very funny guy. The book is eminently readable and entertaining, while at the same time, it offers us glimpses into the criminal justice system from the defense lawyer's point of view.

ABC is excerpting some chapters. My favorite (because I'm in it) is Chapter 4, " Are There Cases or Clients You Won't Take?"

Mickey interviewed some of the best lawyers in the country for the chapter (and me, because we're friends.)

While a few named crimes that they thought were particularly heinous, others (and I'm in this category) listed crimes that we thought we'd bring personal baggage to that might preclude us from providing our best representation which we know the client is entitled to and which we would want to provide.

Here's our answers:

For Mickey, it's rape of a young child. He writes:

Believe it or not, most criminal defense lawyers are people too. We generally are capable of being subjected to the same emotional reactions to various events and circumstances that real people experience. If a client is charged with brutally raping a young child, the mere thought of the act is so upsetting to me that I just don't want to deal with it. I don't want to cross-examine the child and beat up on him/her if she stumbles on the stand. Clearly, the accused deserves a good defense but he would not be getting it from me if I were being too emotionally moved by the allegations of the crime itself. It is my fallibility and (gulp) sensitivity and not my client's possible culpability, which prompts me to pass on the case.

Others that don't bother him:

Oddly enough, I don't have any such problems dealing with murders or other violent crimes. I can't rationally explain this obvious inconsistency but over the years I have come to know what I feel comfortable doing and what not. I have come to learn that many of us have set up our own little personal boundaries.

I, on the other hand, have no problem with sex crimes or murders. Or defending terrorists or mass murderers. For me, Mickey writes:

Jeralyn Merritt of Denver was one of the trial attorneys representing Oklahoma City bomber, Timothy McVeigh. She fought hard to save his life during and after the trial. McVeigh, having never showed an iota of remorse, was found responsible for the deaths of all those unfortunate souls in the Federal Building in Oklahoma City including 28 small children in the daycare facility, which he knew was in operation when he blew the building up. Jeralyn worked closely with McVeigh and worked tireless for him. But she won't represent someone who is accused of abusing the elderly.

Abuse of the elderly? After five years of visiting my mother a few times a week in a nursing home, and my dad having died in one, I see how weak and helpless the elderly become. Spending a few hours with a nursing home resident who can't feed, dress or toilet herself, and who can no longer express herself in words others would understand, is the saddest part of my week. There are also small joys, like when they laugh, and light up in a big smile as they see you coming down the hall to visit.I don't think I could ever give my best to someone who was charged with abusing an elderly patient. I'll take a terrorist or child molester any day over that.

Ron Kuby: Ron excels at the toughest of the terrorism and civil liberty cases. He's as left as they come. He too has a line he won't cross: he will not represent anyone who has committed a crime based on racial or ethnic motivations.

Gerry Shargel, another fabulous lawyer from NY who has defended a slew of murderers and mobsters. As Mickey says,

Gerald Shargel is high up on the short list of New York City criminal Lawyers who are the absolute "go-to" guys if you are in deep doodoo. He won an acquittal for John Gotti who had been accused of ordering the murder of a union labor official. He has represented mob guys, white collar people as well as the street guys. His response to my question:

I don't exclude any category of offense. Depends on the client and the factual basis for the chare. For example, I just represented a female school principal who was charged with rape of 13 year old boys. Would I have represented a 40 year old many who raped an eight year old girl? Probably, not unless I was convinced of innocence (that holds true throughout). So, its not he crime, it's the facts."

Another outstanding defense lawyer, and friend of both mine and Mickey's is David Chesnoff of Las Vegas (former partner to Las Vegas Mayor Oscar Goodman until Oscar became Mayor.) Mickey writes:

David Chesnoff of Las Vegas represented a defendant in the largest controlled substance seizure in American History. He is nationally regarded as a brilliant trial lawyer who has taken on impossible cases and clients. As of this writing, he is representing Las Vegas headliner David Copperfield. His response:

No rats, no snitches. David says:

Since I began practicing I have not been retained to represent anyone that wants to cooperate with the government. In the vernacular, NO RATS. I have always believed that if you commit a crime you should face the music, not snitch on other people to mitigate your punishment. Hopefully, I will do my job well enough that an individual's refusal to rat will still translate to a complete trial or motion victory in the case; pr at least a successful plea negotiation. So far, after 28 years, so good."

Up Next: Famed Miami Lawyer Roy Black, also a good friend. Mickey writes,

We were knocked over by the incredible job Roy Black did when we watched him win an acquittal for William Kennedy smith in 1991 as Court TV captured it all gavel to gavel. Based in Miami, Roy also took care of Rush Limbaugh when they found those four trillion pills in his house. Who will Roy not represent?

Answer: ""Bombers. Because they kill indiscriminately".

Another of my long-time personal friends -- one whom I consider a personal hero -- is the incomparable and highly esteemed Dick DeGuerin of Houston. Mickey writes:

Dick DeGuerin is legendary, even by Texas standards. Recently representing former House Majority Leader Tom Delay in his money laundering conspiracy case, Dick represented Texas cult leader David Koresh during his standoff with the FBI and the ATF. Most recently he won an amazing "Not Guilty" verdict in the case of millionaire-nutcase Robert Durst, who was accused of dismembering the body of his 71-year-old neighbor and throwing the body parts inn Galveston Bay.

So what makes Dick stop and refuse a case?

I don't respect snitches or hot check writers I'll be glad to expand on it, but that s the bottom line. I try to help everyone who has the good sense to ask for my help,"

O.J. Lawyer Yale Galanter says he won't represent pedophiles. "Double murder no problem. Crimes against kids- no can do."

Mickey saves Ben Brafman for last, writing about him:

Ben Brafman of New York City successfully represented Sean "P. Diddy" Combs in his bribery and weapons case. I watched him do his best to defend Michael Jackson, until Jackson's entourage and antics made it impossible to deal with the case effectively. He truly is at the top of the food chain in the criminal law business. I have been on several speaking panels with him, and I always feel like a total dunce after Ben explains or discussed the most technical legal issue in a manner that is bother understandable and compelling to everyone in the room. I have often said that when he clears his throat he is more articulate that I could ever hope to be.

Through an e-mail exchange, Ben answered Mickey's question as follows:

"I have often thought about the question you pose. To me it would be a terrorist. As the son of Holocaust survivors, and with children and grandchildren living in Israel, I would be the wrong guy to represent a terrorist intent on mass murder, suicide bombing, etc. It is important that the reader understand that I believe a terrorist is entitled to a defense; it is just that I am the wrong guy for that kind of case because of who I am as a person, where I come from, and what is today, very important in my life.

I have no difficulty representing a real criminal, even a very bad person. There are degrees of evil, however, and I am not the right guy to represent someone who looks to kill because of twisted hate, as so many in my family have been murdered because of twisted hate.

I think I am a very good criminal lawyer with real talent. My fear is that I would hold back and not permit myself to do what I do best in a case where the defendant is so despised by me. Hard to explain, perhaps, but it is part of who I am. I would fight for the right of that person to get excellent representation, but would never allow that lawyer to be me.

So there you have us. Two won't do sex assault on children, two won't do terrorists, one won't do hate crimes, I wont take a case of abuse of the elderly, and one says it's the facts that matter -- along with a belief the client is innocent.

What does this all mean? We're making two points: Some lawyers decline cases based on moral principles while others only decline cases that strike too close to our own baggage, which makes us doubt we can provide the client with the best representation we all know he or she is entitled to.

Mickey's book is out April 1. Here's how you can get a copy from Amazon:

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    Wonderful. (5.00 / 2) (#1)
    by oldpro on Sat Mar 29, 2008 at 02:12:04 AM EST
    Thanks for sharing...

    interesting. (5.00 / 2) (#2)
    by cpinva on Sat Mar 29, 2008 at 05:48:45 AM EST
    basically, it pretty much depends on the individual attorney. kinda figured. lol

    sounds like a good read though.

    Interesting book (5.00 / 2) (#3)
    by stillife on Sat Mar 29, 2008 at 06:02:29 AM EST
    I'm going to order it.  I enjoy reading books by lawyers about their cases, ever since I read Louis Nizer's "My Life in Court" years and years ago.  

    I'm a legal secretary at a firm specializing in estates and estate litigation - death, taxes and family dysfunction.  ;)

    Can I laugh at that? (none / 0) (#10)
    by CoralGables on Sat Mar 29, 2008 at 09:22:41 AM EST
    Not much makes me laugh my first 15 minutes of the morning but specializing in death, taxes, and "family dysfunction" did it for me. Who doesn't have a horrendous story of watching families act like spoiled children thinking they are entitled to a dead persons money.

    Heh (none / 0) (#12)
    by stillife on Sat Mar 29, 2008 at 09:39:39 AM EST
    I always say that death, tax and family dysfunction never go out of style, which is why our small lawfirm is so prosperous.  I'm an only child, so I don't have personal experience with sibling rivalry (my 2 kids have a good, if somewhat contentious relationship), but the grudges carried on for decades are unbelievable.  We had one case where two brothers were fighting over the father's estate.  The brother on the other side whined in a deposition that his grandparents never gave him hugs or lollipops.  And this was a 60-year-old man!  

    As my boss says, estate litigation is often just a way of keeping the deceased parent alive.


    "Family dysfunction," indeed (none / 0) (#15)
    by Anne on Sat Mar 29, 2008 at 10:18:43 AM EST
    I'm a paralegal who's been doing E & T work for longer than I care to remember, and there are days when it is a lot like doing field work for an advanced degree in psychology...

    The book sounds fascinating, Jeralyn - I will be checking the local library!


    The way things work in our (5.00 / 1) (#11)
    by inclusiveheart on Sat Mar 29, 2008 at 09:37:05 AM EST
    criminal justice system these days, I am not all that concerned about the odds that a guilty defendant will ultimately be convicted.  What I am concerned about is how many people who are either wrongly accused or over-prosecuted will be convicted.  I think it is crazy when anyone objects to any person's defense no matter what they are accused of doing and even if they are guilty.  The odds are simply too great in the government's favor and thus we have to be vigilant about making sure they cannot over-step their bounds.

    I'll add that I really believe that it is the trial and not the accusation that decides a case in my mind - which based on my anecdotal experience with friends and acquaintances is a minority view.  I need to see someone proven guilty in a court of law regardless of what the media says or what the prosecutor contends.  I think there is a huge value in going through the process of defending every person accused of a crime on numerous levels for our society and our democracy.  Otherwise every time some dopey Fox News chick or chuck gets on TV and accuses someone of a crime, we're gonna end up putting them in jail and that is really, really scary to think about.

    I wasn't criticizing any of these (none / 0) (#23)
    by inclusiveheart on Sat Mar 29, 2008 at 05:08:18 PM EST
    lawyers for being honest about where their ability to represent a client vigorously is compromised for one reason or another.  I think that is a good thing.  I was just thinking in much broader terms about heinous crimes that many people think can't or shouldn't be defended.  I think that all defendants no matter what they are accused of should be allowed to present a defense if they choose to.  It protects us all in the end imo.

    Oh - also - I've had a lot of time (none / 0) (#24)
    by inclusiveheart on Sat Mar 29, 2008 at 05:19:03 PM EST
    to think about this subject as my dad was a criminal defense attorney.  Many, many of my friends thought that was really horrible and immoral until they needed one themselves or knew someone who did.  I am very proud of the work he did.  He always felt everyone deserved a fair shot in our justice system - even guilty people.

    Interesting (5.00 / 1) (#18)
    by Steve M on Sat Mar 29, 2008 at 11:30:46 AM EST
    It kinda seems to me that even if a client doesn't want to cooperate with the government, you have a professional obligation to advise him on the topic if it might be in his best interests.

    I've always been amazed at how the childhood admonition against tattletales survives into adult life.  To me, if a drug dealer testifies against the kingpin to get a lighter sentence, a social good is served.  It would never occur to me to think he's a worse human being (a "RAT") than some other drug dealer who refuses to flip, but that's me.

    Definitely disagree with you on one of those (5.00 / 1) (#20)
    by Jeralyn on Sat Mar 29, 2008 at 12:13:28 PM EST
    whether people should rat for a lesser sentence. It's purchased testimony, testimony the government buys with promises of leniency and liberty is a far more precious commodity than money. The overuse of the practice has morally bankrupted our federal system. Snitch testimony is fraught with credibility problems. The incentive to lie and tell the "Government's truth" is enormous.

    On your other point, if the Government makes any plea offer, whether it involves cooperation or not,  we are ethically bound to relay the offer to our clients. It's ultimately the client's decision as to whether to take it.

    If the client says from the get-go he or she will not cooperate, there is no obligation on the part of the lawyer to seek out a cooperation deal.

    Cooperation is distasteful to many of us. On the other hand, it's how the system works and we're not the ones looking at (in many cases) 20 years to life and leaving spouses and young kids at home. Some clients will opt for cooperating and a sentence of 5 or 10 years in order to avoid the risk of 20 or 30 or life if they lose at trial. Others will seek plea deals without cooperation, even if it means they have to do more time.

    Bottom line: It's the client's choice. The lawyer doesn't have to recommend cooperation or seek out a cooperation deal, only relay one if it's made by the Government.


    Excellent lawyer vs the Good Lawyer (none / 0) (#4)
    by Saul on Sat Mar 29, 2008 at 07:55:05 AM EST
    I am not a lawyer though I do have lawyers in my family.   My personal feelings are that there is a difference between an excellent lawyer and a good lawyer. If I were a lawyer though, I would try to be the good lawyer and not necessarily the excellent lawyer.  I understand that everyone is entitled to the best defense but money does play a role on how good of a defense you get.  In the OJ trial I have always felt that   OJ did confessed to the lawyers that represented him of his crime of passion.  He probably said "Yeah I did it but I was very angry when I killed them and just lost my head".  He also probably told his lawyers yes I was wrong and I need your help.  He also told them he was very rich and money was no object.  The excellent lawyers which were several said ok I will take the case and if we will do everything possible to get you a not guilty verdict which they did.  

    My point is this. The good lawyer would have said well I will try to get you the lightest sentence possible but I am not going to take the case and pretend  the crime never took place since you have confessed to me that you did the crime or the good lawyer might have also said  now that you told me you did the crime I am not taking the case at all.

    I would feel better being the good lawyer rather than the excellent lawyer.   As a lawyer you do have to have some moral conscious and there are limits of what you will do for money.  

    A lawyer... (none / 0) (#27)
    by white n az on Sat Mar 29, 2008 at 09:47:32 PM EST
    would typically never ask you if you committed the crime and would probably stop you from completing any sentence that might go there.

    They are officers of the court and can not present testimony or theory that they know to be untrue so they are very keen to extract the plausible ideas from their clients why they might not be guilty and start from there.

    As for OJ...I have to believe that he has never confessed to any one save for maybe Al Cowlings or Roosevelt Grier and for obvious reasons, they aren't going to say anything. I think in his situation, it was extremely important for his lawyers to believe that he was innocent and could not have put for the defense they did if he had admitted guilt to any of them.

    People can (and do) say many things about lawyers, much of which may very well be true but a lawyer defending a client that he KNOWS to be guilty can only be effective at minimizing the conviction, negotiating a plea arrangement or be an effective agent in sentencing hearings since the guilt is by then, assumed.

    Jeralyn, I don't know that I could do what you do, I wonder if I could have done what you have done but you have my undying admiration for doing it because even the guilty have the right to vigorous counsel.


    In a perfect world (none / 0) (#28)
    by Saul on Sun Mar 30, 2008 at 11:44:20 AM EST
    that a lawyer would not defend a client as if he never did the crime who admitted he did the crime to a lawyer is probably true but I think it happens more than one thinks that a lawyer will go for the full count of not guilty even if his clients confesses to him.  There is no way you can prove that the client confessed or not to the lawyer.  That is client privilege.   In the OJ trial I still feel he honestly confessed to them.  The initial strategy was probably to get him of light but since the blood and evidence was so botched up they went for the complete not guilty at all scenario.

    Jeralyn, would you defend Rush (none / 0) (#5)
    by Saul Goode on Sat Mar 29, 2008 at 07:58:08 AM EST
    Limbaugh if he were to be indictd by aolitically-motivated, over-zealous prosecuter in Ohio?

    I hate to think what would happen (none / 0) (#6)
    by Militarytracy on Sat Mar 29, 2008 at 08:08:38 AM EST
    long term to our system of justice if lawbreakers couldn't get excellent council.  I think it would cause a sort of social evolution to take place and different sorts of socially unpopular lawbreaking could turn into lynch parties.  No thanks.....I think I'm very happy sticking with things being this way.  I have always loved Gerry Spence and I can't remember which one of his books, but one of them anyhow he begins by explaining how defending Randy Weaver is a no brainer for him even though Randy Weaver was racist and anti-semite in the extreme and held views that Gerry Spence finds repellent.

    Money vs no money (none / 0) (#7)
    by Saul on Sat Mar 29, 2008 at 08:26:58 AM EST
    Excellent council (i.e not guilty even though you did commit the crime cases) is directly proportional to money.  On the other hand there are probably many people in jail who should not be in jail.  There only crime for being there is they are not rich.  If you could have an endless supply of money to redo those trials and defend those in jail how many do you think be out in a heartbeat?

    Interesting ideas.... (none / 0) (#8)
    by Maria Garcia on Sat Mar 29, 2008 at 08:44:20 AM EST
    ...I've actually thought about this a lot and I have to admit that what has prompted me to do so is years of watching Law and Order. Although it is from the point of view of the prosecutors, they do a good job, I think, of showing the zeal and dedication that many defense lawyers have for their clients. If lawyers for the defense were all push overs, it wouldn't be a very good show, right?

    Just wondering (none / 0) (#9)
    by ding7777 on Sat Mar 29, 2008 at 09:10:23 AM EST
    If you intensely dislike the way a lawyer talks or dresses (for me its the well known Wyoming lawyer), would that disqualify you from jury duty?

    That's a great question (none / 0) (#16)
    by nolo on Sat Mar 29, 2008 at 10:39:36 AM EST
    It's something I think would be grounds for disqualification, definitely.  Anybody else have any thoughts?

    Uniforms Make Me Nervous (none / 0) (#17)
    by squeaky on Sat Mar 29, 2008 at 11:07:14 AM EST
    Not disqualified, but not picked. I was almost begged to sit on a jury by a defense lawyer and called back to the room three times. That was heart rendering because I was clearly sympathetic to the defendant.  The question was could I be impartial in a case where the only witnesses were policemen. After saying that in my experience most cops lie without any compunction, I quickly added 'with all due respect' because there were a few uniforms in the court room.  I would imagine that some people would not be able to be impartial where lawyers were involved, because they dislike lawyers.

    Does the lawyer want the truth? (none / 0) (#13)
    by Demi Moaned on Sat Mar 29, 2008 at 09:49:27 AM EST
    Thanks, J, for a most interesting article. It touches on a point I have long been curious about: whether defense attorneys want clients to tell them the truth.

    It was a staple of 60's-era television (where the law shows were much more defense-oriented) that the lawyer wanted to know the truth even if the client was guilty.

    But here's a passage from Anthony Trollope's Phineas Finn (admittedly 19th-century and English) that takes a different view:

    I don't know how we got to all this from Mr. Finn. I'm to see him to-morrow."

    "Yes;--he is very anxious to speak to you."

    "What's the use of it, Wickerby? I hate seeing a client.--What comes of it?"

    "Of course he wants to tell his own story."

    "But I don't want to hear his own story. What good will his own story do me? He'll tell me either one of two things. He'll swear he didn't murder the man--"

    "That's what he'll say."

    "Which can have no effect upon me one way or the other; or else he'll say that he did,--which would cripple me altogether."

    "He won't say that, Mr. Chaffanbrass."

    "There's no knowing what they'll say. A man will go on swearing by his God that he is innocent, till at last, in a moment of emotion, he breaks down, and out comes the truth. In such a case as this I do not in the least want to know the truth about the murder."

    "That is what the public wants to know."

    "Because the public is ignorant. The public should not wish to know anything of the kind. What we should all wish to get at is the truth of the evidence about the murder..."

    Thank you, this is an intriguing debate (none / 0) (#14)
    by Cream City on Sat Mar 29, 2008 at 10:11:41 AM EST
    for me, too, as one who is not a lawyer (so I usually just lurk on your legal threads).  I've got a lot of lawyers in the family, though, so I will be forwarding this.

    Not that any in the clan are in criminal law -- although a family member had the Shah of Iran for a client!  But his "crimes," as I recall, fell in the realm of environmental law re oil wells . . . in what seems like a lifetime ago now about that part of the world.

    Anyway, again, thanks for the book report, Jeralyn -- and thanks, too, for your work that upholds the Constitution, not to mention the Magna Carta.  We do have to work on restoring those habeas corpus rights after Bush, though, huh?

    Snitches (none / 0) (#19)
    by ItsGreg on Sat Mar 29, 2008 at 11:51:13 AM EST
    I spent 7 years as a criminal defense investigator. The only clients I found I couldn't work for were snitches. Violent crimes, sex-based crimes, crimes against children...they bothered me, but I could do the work. But for some reason, snitches offended me. Not all snitches. Just the ones who were eager to snitch.

    Fascinating! (none / 0) (#22)
    by Plutonium Page on Sat Mar 29, 2008 at 01:29:55 PM EST
    I told my husband the other day that if I need a defense attorney, I'm hiring Jeralyn ;-)

    Um, in the context of the examples given here, that really sounded bad, lol.

    Seriously, I've always been interested in how you guys think.  Maybe I'll actually check out the book.  Is it very wonky, or good for general non-legal ignoramuses like yours truly?

    Totally tangential, but Jeralyn, have you read this book?  Michael Connelly is wonderful, and the Mikey Haller character rocks.  There's a new one coming out in October.

    And that is the sum total of my knowledge about defense attorneys.

    What a facinating post (none / 0) (#26)
    by fuzzyone on Sat Mar 29, 2008 at 09:23:45 PM EST
    I have been a criminal defense lawyer for 15 years. For most of that time I have been some flavor of public defender.  For the past 9 years I have worked exclusively on capital cases.  Needless to say I have handled some pretty disturbing cases.  For me the answer is very much like Ben Brafman's:  If I was ever assigned a case where I felt I could not give the client my best, whether because of the facts of the case or something about the client, then I would ask to be taken off the case, but I don't have any hard and fast rules for what kind of a case that would be.  I've never been in the position of representing a snitch, but I agree with Jeralyn that snitch testimony has poisoned the criminal justice system in really disturbing ways and that would be tough for me.  

    I don't know if my answer would be different if I was being paid directly by my clients.  I did a short stint in private practice and found that adding the issue of payment into the attorney-client relationship, at least in a the criminal defense context, was really disturbing to me.  (I was an associate so it was more the way my boss handled it and the way I felt the profit motive impacted the way he practiced that bothered me.)

    Thanks for the thought provoking post.

    FYI... (none / 0) (#29)
    by mindfulmission on Sun Mar 30, 2008 at 02:29:29 PM EST
    ... the book is already out, so I am not sure where the April 1st date comes from.

    I almost bought this book when I was in borders last night (I bought Defending the Damned instead.)

    I read this thread Sat afternoon, (none / 0) (#30)
    by sarcastic unnamed one on Mon Mar 31, 2008 at 02:35:46 AM EST
    and it's stuck w/me ever since.

    I think the issue is that the perception is that many/most defense attorneys will defend a client whether or not the attorney thinks/knows the defendant is guilty.

    iow, how can you possibly defend someone accused of, and and you know/think he/she's guilty of, a horrific crime?

    Sure, you think all drug laws are bogus so you defend any/all drug defendants even thought you may think/know they are guilty. But that's another discussion altogether.

    But repeat/multiple murderers? Rapists? Child molesters? Whatever?

    How can you sleep like a baby at night knowing you got a child molester/whatever off on a technicality or something, but apparently would bum out if you got an elder abuser off the same way?

    iow, what it comes down to is that you're ok with murderers/rapists/child molester/whomever, continuing to kill and/or violate others mainly due to your successful defense efforts, but not elder abusers?

    Tim McViegh murdered so many. You defended him. But there was no chance that you'd get him off. None. He was so obviously guilty.

    Sure, you might maybe have gotten him LWOP instead of the DP, and that may have been what motivated you.

    But, what if you had gotten him off scott free? Are the hundreds of adults and young children he murdered of less value than elderly adults to you?

    What if you had gotten him off scott free, and a couple months later he killed another couple hundred innocents? How would you have slept then?

    If you say you would have slept just fine, no offense, but that's as wacky a viewpoint as I've ever heard.

    imo Gerry Shargel's the only one who's got it right, "Its not the crime, it's the facts."

    Anything else smells to high heaven of... well...I imagine you've heard it all before.

    I sure hope there is more nuance to your position than this book suggests.