Wednesday, May 18, 2011

Who We Are and What We Do - On Getting Back Up

John Kindley lost a case.  He's been sick about it for a long time.  He believes his client to have been innocent.  Not just legally innocent, not innocent on a technicality, innocent as in didn't do it innocent.  Totally, factually, entirely innocent.
Yet the guy's doing 45 years.
The court of appeals reversed, but today the Indiana Supreme Court reinstated the conviction.
There’s not much I can say. Words, including the words of which the law is made, are worthless. I represented that innocent man at trial.
It's a bitch.  I know.  All of us in this business know.  We never like to lose, of course, but losing for those we think innocent.
OK, so Kindley's sick about it.  "Words . . . are worthless."  Well, yeah.  Whiskey helps some, but it's really not a long-term solution.
In a comment, responding to a comment, he says he's thinking of quitting.
I’m seriously planning to look for another profession. It becomes very difficult to play a game if you have no faith whatsoever in the referees, if their conception of justice is so utterly foreign.
Which is, of course, exactly wrong.  Maybe. 
John's been excoriated a fair amount in the criminal defense blogosphere for his commitment to the idea that we who defend really want justice for our clients.   He's been fuzzy about just what that justice he says we want is, the definitions changing from post to post and comment to comment, but he's been consistent about the basic claim.  Throughout, though, he's insisted that he's up for the fight and will defend to the end.
So now push comes to shove.
He lost at trial.  He thinks that decency says he should have won.  His client got relief.  Then he got fucked again.  And he's doing 45 years and it's not right and by gosh and by golly.
Welcome to the club, John.
You want to know about the cases I lost that I should have won - especially on appeal where the facts don't much matter and the judges can revise the law at will?  (Yeah, there are also those I won that I should have lost.  It cuts both ways.)  Or the ones Bennett lost?  Or Greenfield?  Or Pattis?  Or Racehorse Haynes or F. Lee Bailey?  Or anyone else you want except maybe Gerry Spence and I don't really believe it about him.
You want to hear about the bad law I've made?
Or maybe you just want to hear about Todd Willingham who was executed fergodssake for a crime that probably never occurred.  And he's not the only one.  And if his trial lawyer doesn't feel any qualms (and it sure seems he doesn't), his appellate lawyer damn well does.
But see, here's the thing.  We do what we can.  We stand in the way and fight the fight and give it our all.  And we struggle to learn from our mistakes and even from our victories.  And we get battered and beaten and then get back up on the horse.
I've represented, at one time or another, six men who've been executed.  I'm thankful I didn't put any of them on the row, but I didn't get them off, either.
We lose.
We lose when we should.  (Mostly.)
We lose when we shouldn't.  (Sometimes.)  Because someone's got to pay, by god.
And so we have these choices:
  • We can give up and go home.
  • We can take our marbles and go home declaring "that'll teach 'em."
  • Or we can use the anger, use the hurt, use the frustration.  To get better.  To get tougher.  And get back up.  To keep fighting.
Years ago, a young lawyer and I were sharing a beer.  He was bemoaning an appellate loss in a case he thought he should have won since the law and the facts, he believed, were on his side.
How do you keep doing this?
He really wanted to know.
The thing is, Mike [I said], you keep going because you keep expecting the system to work and believing in it.  So you get defeated when it doesn't.  Me, it's the anger that keeps me going.
Mike still believes in the system.  And he's still out there every day getting beaten up except when he wins, which is more often probably than he should, at least if wins means something more that outright acquittals (which it does).  And me, I keep climbing up off the mat, too.  Take another punch.  And then fight harder.
You say, John, that you're a criminal defense lawyer.
Now's when you prove it.
I'm rooting for you.


  1. Thanks Jeff. I appreciate it, and will try not to do anything rashly. I know I'm not by any stretch the only one who's been here. But "believing in the system" is a tall order when at bottom the "system" is owned by the 5 people who rendered today's decision. I don't believe in them, and they're not going anywhere. A small fraction of my anguish comes from my ineffectiveness at this man's trial. (It's a long story.) In this lies some hope of relief for my former client. Subsequent trials have gone better. It's been impressed upon me that by far the greatest hope for justice is from a jury at trial, even though in this case words can't convey my opinion of the jury.

  2. If you have to believe in the guys at the top, it's hopeless. The trick is to fight anyway. Strategically. Sometimes you even win. But you're standing up, speaking truth to power. That's no small thing.

    I'm rooting for you.

  3. He's right. Jeff, that is. Get back in there and start hitting the ball, because every once in a while you'll get one over the fence and some poor schmuck will not get railroaded into taking a plea bargain for 20 to life for a crime he did not commit.

    What I'd like to see you people (not exactly as in you people, more as in you learned attorneys) do is educate the general public about jury nullification, jury duty and how things really work. Me, I'm just waiting to get called for jury duty - for the right case, of course. He was beating her, so she dinged him. Not guilty, yer honner. Not even discharge of a weapon within city limits, and you can sit and spin for a while.

    Next case!