Washington Lawyer - January/February 2020 - 8

FROM OUR PRESIDENT

LOSERS

Our Unsung Heroes
Connect
with Susie:
shoffman@dcbar.org

inning is exalted in our
society. We grew up
watching sporting events
that glorified the victors.
These winners were our heroes. Losers
were, well, losers. In this column, I laud
the value of losing and salute our legal
losers. Like many others, I was inspired
by a legendary fictional loser to enter
the legal profession. Atticus Finch,
a small-town Alabama lawyer and the
hero of To Kill a Mockingbird, defended
Tom Robinson, a black man, against
criminal rape charges despite the
disapprobation of Finch's fellow
townspeople. Finch lost. His client
was convicted resoundingly by an
all-white jury.

WASHINGTON LAWYER

Prosecutors, as well, have shown courage in
pursuing "loser" cases when principle is at stake.
For example, prosecutors who bring criminal
charges arising out of police misconduct face
an uphill battle, yet they do so to hold police
officers accountable, address injustice, and
protect the integrity of our justice system.
Loss also plays a critical role in achieving social
change. Among the most memorable pro
bono representations undertaken by our firm
was that of Lt. Tracy Thorne in 1992. As Thorne
recounts, "In early 1992 as a young Naval flight
officer, I was grappling with the numerous
issues any gay man faces in coming out, not
the least of which was the military's then
outright ban on gay service members. I knew
that being honest about who I was would
likely cost me my commission and my career
. . . . I knew I needed counsel, but at that time,
the various advocacy groups with staff counsel
had written off the military challenge as being
unwinnable."
Few firms at the time would take on military
discharge cases because the likelihood of
success was so slim. But Thorne's record of
excellence and achievement was so impressive

Photo: Joe Shymanski

Finch's willingness to take on the case, a sure
loser, was born out of his dedication to the right
to representation for criminal defendants - a
right guaranteed by the Sixth Amendment. His
principled and moral defense, which resulted in
an unequivocal loss, makes him a role model
and an inspiration for lawyers and many others.
As Law & Order fictional prosecutor Jack McCoy
once noted, "The benchmark of a civil society
is the quality of its justice system." Our public
defenders and other criminal defense attorneys
shoulder more than their fair share of losses and
do so to ensure that the Sixth Amendment right
to counsel is not an empty promise. Because of
their losses, society wins.

JANUARY/FEBRUARY 2020

that the injustice of denying him the right
to serve his country compelled our firm to
assemble a "dream team" of lawyers. We represented him in military discharge hearings, in
federal district court, on appeal to the D.C.
Circuit, and when he testified before Congress.
At every turn, the team and Thorne lost. His
dream job foreclosed, Thorne left the military
and pursued a legal career, initially as a prosecutor. On March 1, 2013, Tracy Thorne-Begland
was sworn in as the first openly gay judge in
Virginia, serving on the general district court
in Richmond.
On the morning of September 23, 2011,
I picked up the Washington Post, and after
reading the headline announcing President
Obama's lifting of the ban against gays in the
military, a wave of emotion came over me.
I felt like Tracy's case and all his losses had
played some role in this change. Later that day
I received a call from Tracy, and he echoed
what I felt - that his losses and those of other
courageous individuals who had challenged
the ban undoubtedly influenced the sea
change in the policy. When I told a public
interest advocate this story, she said, "Social
change is often built upon a mountain of
losses and setbacks."
Nowhere is this more true than in the history of
the passage of the 19th Amendment granting
women the right to vote 100 years ago. In
reading Elaine Weiss's book The Woman's Hour:
The Great Fight to Win the Vote, I was struck by
the number of losses and setbacks the suffragists encountered. Yet, they built on those losses
to ultimately succeed.
Congress first considered the "Anthony
Amendment," introduced by Sen. Aaron
Sargent, in 1878. After the Senate declined to
vote on the measure, decades passed before
it was reintroduced in 1917. On January 10,

Washington Lawyer - January/February 2020

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