Tuesday, July 6, 2010

Damned if I Know

This round began, I guess, with Mirriam Seddiq who took a suggestion from law student Laura McWilliams and wrote about The Law, a Love Affair of Sorts.  But it really got going when Laura posted her two part response (here and here) and then three posts on why she plans to be a prosecutor (1, 2, and maybe).  Mark Bennett wrote a post about it.  Scott Greenfield spun off some thoughts.  The commentariate (blawgers and others) has been going strong on Laura's blog.
Here's the very short version.  She feels desperately for those she identifies as the victims of criminals.  She is a multiple victim of criminals herself.  She might like to be a prosecutor, but because she knows that prosecutors work for the government, she isn't sure.  She respects criminal defense lawyers but can't imagine being one because they represent the criminals rather than their victims.  
I love the internship I have this summer. In my work at a domestic violence organization, I’m not standing at either the table. I’m mostly sitting. I’m sitting with weakened individuals as they struggle to find strength in a legal system that’s not created to offer all that much. (See my previous post, No Justice.) I sit with them as they organize their divorce and custody paperwork. I sit with them as they fill out motions for restraining orders. I sit with them as they wait in courtrooms for their cases to be heard. When I’m sitting with a woman who has been abused by a person she loves, and I look up at that judge and that bench, I never imagine that I’ll be standing on the accused’s side of the courtroom. It will never happen.
Mark Bennett, in a comment, pointed out that victims often end up on the other side.
There is often no clear distinction between victim and the victimizer. Most now-victimizers once were victims; most abusers have histories dominated by abuse, sometimes horrific.
Not every victim can go to law school to seek retribution as a prosecutor; most act out in other ways. And so the cycle continues.
When that abused woman finally cracks, stabs her loved one 108 times, and buries him in the back yard, she may well wish you were standing on her side of the courtroom. And so may you.
Laura acknowledged that the abused woman might do that, but denied that she'd defend her.
Such stories are sad–of course they are. But, no, I’m not entirely sure I’d want to be standing at her side “when that abused woman finally cracks.” I would want the best defense lawyer in the world standing beside her at that point. And if I were prosecuting, I’d be scrambling to make a deal.
I fully accept Laura's sincerity.  But I worry.  See, sincerity is dangerous.  
One of the first things I learned when I started representing people is that clients lie to their lawyers.  All the time.  They lie about trivial stuff.  They lie about really important things.  Sometimes their lies leave us scrambling when we learn the truth during trial or at sentencing.  Often, the lie is "I'm innocent."They believe that we'll work harder for innocent clients.  (They're wrong.)  They believe we only want innocent clients.  (They're really wrong.)  They believe we'll believe them.  (Often they're wrong.)
Then I learned that everyone lies on the witness stand.  They'll lie about trivial stuff or about major stuff.  But they all do it.  The first lie is "I swear to tell the truth."
And it turns out that people lie to police and prosecutors and other lawyers just as much as they lie to me and juries.
First rule: I never really know what happened.  None of us do.  We might know what didn't happen. (Some things are physically impossible.)  But what actually did?  Only the people involved know for sure.  And they might be wrong.
Which brings me back to Laura, who's eager to stand up with those who are victims of criminals.  And sincerely knows who they are.  Except, of course, she doesn't.
Right now she's working as an intern at a domestic violence organization.  There is horrible domestic violence in this world.  People (mostly but not exclusively men) inflict almost unimaginably brutal physical abuse on their spouses and children and parents - all the while proclaiming their love.  Not only does it happen, it happens with remarkable frequency.
We have, and need more and better, shelters for the abused.  We have, and need more and better, services for the abused.  We have, and need more and better, advocates for the abused.
But there's another problem.  Domestic violence, like domestic sexual abuse, is easy to allege.  And too often, far too often, the allegations are false.
I'm not minimizing the problem.  I'm pointing out a separate one.  We believe, we choose to believe, every allegation of abuse - physical, sexual, psychological.  The alleged bad guy has his name in the papers and on television.  The self-declared victim is anonymous to protect her (mostly, but not exclusively, her).  
And Laura stands up with her.  Rightly, for she needs a person on her side.  But only if.
Except that to the sincere, there's never an if.
Look, I've represented the ones who finally struck back.  One example.  There was the woman who suffered more than five years of abuse.  Finally, in self-defense, she shot the man who was beating and choking her and would have killed her.  That's a true story.  I believe it.  The jury didn't.  When the prosecutor started to make light of it during oral argument in the court of appeals, one of the judges said (I'm paraphrasing; it was a long time ago),
Stop that.  She was abused by this man for five and a half-years.  Now she's been abused by the legal system.
Noble words, though he voted to affirm her conviction for voluntary manslaughter.
But for all that, I don't know what happened.  Her trial lawyers don't know.  The prosecutor didn't know and neither did the judges on the court of appeals.  Only she knows.  If she does.
I was proud to represent her.  I wish I'd been able to undo the damage her trial lawyers caused.  But I don't know what happened.
Nor does Laura when she stands up with those identified as victims.  The ones whose side she wants to be on.  The ones she'll be sure are telling her the truth.
And some, probably most, of whom will be.  Or something close to it.  
Of course, close really only counts in horseshoes.


  1. I know of what Laura speaks. I wanted nothing more than to be a prosecutor. I didn't want to wait for a top 10 law school to let me in because I figured it didn't matter, all I wanted to do was wear that white hat.

    I feel like I'm wearing it now, but it fits a lot better.

  2. Just to correct an error, I didn't comment about Laura's post, which is of no consequence in itself, but rather an ongoing issue of young lawyers and law students believing that the practice of law is about imposing their vision of "justice" on others.

    That they believe that they can personally define justice, then use their lawyer position to ram it down the throats of others, is a recipe for disaster.

  3. You didn't comment about Laura's post. You mentioned it in passing through reference to Bennett's piece. Looking back, I can see that what I wrote came out wrong. Sorry for the error.