Sunday, August 2, 2009

Innocence lost

I don't imagine I have anything else in common with them, but like Sonia Sotomayor and Al Franken, I grew up watching Perry Mason on television. A criminal defense lawyer, week after week, year after year he defended the innocent accused. And, routinely, the real guilty party would confess in court - either during his grueling cross-examination by Mason or blurting it out from the gallery while Mason was cross-examining someone else.

I suspect Perry Mason inspired as many people to go to law school as Atticus Finch. Both gave us pictures of lawyers successfully defending the innocent accused.

It's a sham, folks.

I'm a criminal defense lawyer. Most of my clients are guilty of something akin to what they're charged with. No criminal defense lawyer routinely represents the factually innocent. And none who's been at it for more than a very short time wants to. I know. I've represented a few. Some I've gotten off. Some I've failed. Failure goes with the territory, regardless of innocence.

If you take the work seriously (and if you don't, you shouldn't be doing it), representing the guilty is both an honor and a burden. It's an honor because the work itself is honorable. It's a burden because so much rides on what we do. Civil lawyers represent the financial interests of their clients. There can be thousands, even millions of dollars at stake.

That's nothing. We in the criminal defense business have weightier things at stake. We fight for our clients' freedom - sometimes for their lives. If it's a burden always, the burden is greatest when we believe the client innocent.

It doesn't make us work harder. It just increases, exponentially, the stress. But you won't learn that from TV or the movies. You will learn it, though, from Abbe Smith's fine book, Case of a Lifetime: A Criminal Defense Lawyer's Story (and you'll get something of the flavor of it, though without the texture that elevates it from melodrama, in this article in the Washington Post). Smith, Professor of Law and co-director of the Criminal Justice Clinic at Georgetown Law School tells the story of her 20 year effort to free the apparently innocent Patsy Kelly Jarrett from prison. It's not your standard tale of innocence vindicated. There's no vindication here.

Jarrett was 21 when she took a summer trip from her home in North Carolina to Utica, New York, with Billy Ronald Kelly. Before they got back to North Carolina, Billy had robbed and killed at least two gas station attendants. Based on a single, shoddy, eyewitness identification, Jarrett was convicted of murder for playing a part in the killing in Utica. She insists she is innocent.

Smith got involved in the case while taking a clinical class at NYU Law School. By that time, Jarrett had been convicted and had lost her appeals in state court. While she was in law school, and then later while a law professor at Harvard, Smith fought for Jarrett. The fight is anguished and painful and, ultimately, unsuccessful. There are no magic bullets here. There's no real evidence or even accusation of prosecutorial or police misconduct. There's no DNA to prove innocence. There's just Smith's conviction that a great wrong was done, that Jarrett is too much of an innocent not to be innocent. And that's not enough, as Jarrett spent nearly 29 years in prison for a murder of which, according to Smith, she was wholly innocent.

I don't mean to sound cynical about this. I'm inclined, from what I read and from what I know about the system, to believe Jarrett innocent. On the other hand, I know better than to trust my judgment on these things. But it doesn't matter, for this isn't a story about Jarrett and innocence, it's a story about Smith and the loss of innocence.

It's about Smith and about how you fight and fight for your clients even when the fighting gets you nowhere. It's about Smith and about how you struggle with doubts about whether you're good enough and whether you care too much and just how you deal with this person you're certain is innocent but is doing all this time and you don't seem to be able to help. As I say, it's not Jarrett's story. It's Smith's.

And as she tells of what she does and how it ultimately seems to make no difference, she examines the role of the criminal defense lawyer. Here's what makes one. Here's who we are. Here's how we deal with clients. Here's why we never want innocent clients. Here's the anxiety and the stress and the ambiguity and the doubt. Here's the frantic struggle. Here's just getting through the day.

I'm not giving anything away to say that Jarrett finally gets released. The "case of a lifetime" is over. But there's no vindication here. It's not the glorious, heroic victory. And when it's over, there's something very like post-partum depression.

Case of a Lifetime is a moving and powerful book of an unreliable justice system, of the futility of innocence, of struggle and passion, of the joy and the pain of what we do in this business. It's about power and frailty and just getting by. It's something quite special.

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