Sunday, November 9, 2014

Yea, though I walk through the valley of the shadow of death

A law student, a legal intern in our office who's licensed to argue under direct supervision of a lawyer who sits at counsel table with him, was arguing his first case in the court of appeals.  The trial court had suppressed evidence.  The state appealed.  The student/intern was defending the trial court's decision.  I went to watch and provide moral support.

He did a fine job, and he had great facts to work with.  He'll probably win though there are no guarantees in this business.

I'll be happy if he wins, of course.  It's the right outcome legally.  It's a victory for our client.  It'll be great for him.  And maybe it'll go some toward getting the cops to knock off an unconstitutional practice.*

But as I told him afterwards, it's generally not a good thing for criminal defense lawyers to win their first case.

Oh, sure it feels good.  And it's certainly good for the clients.  But it teaches a lie.

I am, I hope, a far better lawyer than I was when I took my first case.  I know more.  I have a better feel for how to present arguments, how to ask questions, how to answer them.  I'm better able to make the stage of the courtroom my stage.

I'm also, and this is getting toward my point, more used to the battering.

Those of you who are in this business, those of you who observe it, those of you who read this blog, you know that being right is the least of it.  You know that proof is what juries believe, not necessarily what happened.  You know that the deck is stacked, the cards marked.  You know that when the facts are ugly the Law (that uppercase thing defined by case law and rules and statutes and the shit they teach in law school and that law professors actually do believe in and judges pretend to believe in - often pretending to themselves) doesn't count at all. 

We do this business often from our knees.  We cry and beg and genuflect.  And sometimes, of course, we prevail.  The reality, though, is that mostly we don't.  Mostly we get, at best, a loss not as bad as it could have been.  Maybe that's a plea bargain.  Maybe it's a sentence less than the prosecutor wants. Maybe it's a guilty verdict on a lesser-included offense.  Maybe it's . . . .  But of course, sometimes.

Sometimes the drugs get suppressed.  Sometimes the jury says, "Not Guilty."  Sometimes the client goes home, not even on paper.

And sometimes they strap him down on the table and stick needles in his arms and fill him full of shit that's designed to kill him - and almost always does.

It is, as I said to the student/intern, generally not a good thing for criminal defense lawyers to win their first case.  

It's good for the client, of course.  And it's good for the ego.  But it leads to the false expectation that this business is easy, that we can win regularly - as long as we're right or smart or lucky.  Which can make the brutality of day-to-day results harder to bear.  Because really, that shouldn't happen.

No, better to lose up front.  Learn to take a punch.  Because here's the daily truth of what we do.

The Charge of the Light Brigade

Half a league, half a league,
Half a league onward,
All in the valley of Death
   Rode the six hundred.
“Forward, the Light Brigade!
Charge for the guns!” he said.
Into the valley of Death
   Rode the six hundred.

“Forward, the Light Brigade!”
Was there a man dismayed?
Not though the soldier knew
   Someone had blundered.
   Theirs not to make reply,
   Theirs not to reason why,
   Theirs but to do and die.
   Into the valley of Death
   Rode the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon in front of them
   Volleyed and thundered;
Stormed at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of hell
   Rode the six hundred.

Flashed all their sabres bare,
Flashed as they turned in air
Sabring the gunners there,
Charging an army, while
   All the world wondered.
Plunged in the battery-smoke
Right through the line they broke;
Cossack and Russian
Reeled from the sabre stroke
   Shattered and sundered.
Then they rode back, but not
   Not the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon behind them
   Volleyed and thundered;
Stormed at with shot and shell,
While horse and hero fell.
They that had fought so well
Came through the jaws of Death,
Back from the mouth of hell,
All that was left of them,
   Left of six hundred.

When can their glory fade?
O the wild charge they made!
   All the world wondered.
Honour the charge they made!
Honour the Light Brigade,
   Noble six hundred!

*I'm not holding my breath on that one, this being Ohio and all.  See State v. Hoffman and Orin Kerr's note on it.

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