And May the Best Man Win

It's a tough business this criminal defense thing.  And it takes, sometimes, a tough guy (or gal) to do it.

Last year, I mentioned this story from Washington State. It seems that Micah W. Hasselstrom tried to escape from Spokane Municipal Court. His public defender and two other PDs, with the able assistance of a deputy sheriff, tackled him. Yes, that's right. He was, in effect, arrested by his lawyer and two other public defenders.

I mean, who knew that the public defender job description included taking down escaping clients?  The real question, and the one which I gather generated heated discussion among Washington's criminal defense bar, was whether criminal defense lawyers should be using their considerable physical prowess to aid the police.  It's the question from the old union song.

Which side are you on?

Sometimes, at least, it seems the answer is clear.   Case in point.  Cook County Public Defender and sometime professional boxer, Henry Hams. 

As reported by Rummana Hussain and Frank Main in the Chicago Sun Times (and notice that this was a big enough story to require two reporters to cover it),  Hams and an (unnamed) assistant county prosecutor apparently had a disagreement over when to set a date for a hearing.  Lawyers argue about that sort of thing all the time.  Sometimes the arguments are contentious.  

There was, for instance, the time the Honorable Gregory A. Presnell, U.S. District Judge in Florida, ordered opposing counsel to resolve their dispute over the time and location of a deposition by playing rock, paper scissors.

[A]t 4:00 P.M. on Friday, June 30, 2006, counsel shall convene at a neutral site agreeable to both parties. If counsel cannot agree on a neutral site, they shall meet on the front steps of the Sam M. Gibbons U.S. Courthouse, 801 North Florida Ave., Tampa, Florida 33602. Each lawyer shall be entitled to be accompanied by one paralegal who shall act as an attendant and witness. At that time and location, counsel shall engage in one (1) game of "rock, paper, scissors." The winner of this engagement shall be entitled to select the location for the 30(b)(6) deposition to be held somewhere in Hillsborough County during the period July 11-12, 2006.

Even when childhood games are required, though, contentious arguments over scheduling can generally be resolved peaceably.  Hams and the (unnamed) assistant county prosecutor?  Well, Hussain and Main report it this way.

The incident today happened after an argument spilled out from Judge Clayton Crane’s courtroom on the sixth floor, authorities said.
The two disagreed over when to set the next court date on a post conviction hearing for convicted murderer Derrick Neal.
“We could just set a date on Aug. 5. I don’t see a problem. . .,” Hams said, according to a transcript of the hearing.
The prosecutor responded, “I didn’t say there was a problem. I’m trying to be convenient to everybody, including myself and the court.”
The prosecutor “left the courtroom and was in the hallway when the public defender came up to him and resumed the argument. That led to a physical fight where the public defender had to be pulled off of the state’s attorney,’’ Cook County Sheriff’s spokesman Steve Patterson said in a statement. It took two deputies to separate the men, he said.
Hams allegedly put the prosecutor in a “choking headlock,’’ police said. The public defender allegedly  told a bystander he did it because he was “sick of him mocking him,” the bystander said.

Sophia Tareen, reporting the story in the Chicago Tribune reports not a "choking headlock" but that

Hams was on top of the prosecutor with both hands around his neck. 

A subtle distinction, perhaps, but one that suggests the fight to have been more a brawl than a wrestling match.

More significantly, Tareen emphasizes that the fight was all about the law.  She notes that the lawyers knew each other "only through legal proceedings."

Most criminal defense lawyers I know will tell you that criminal law is considerably more civil than civil law.  It's not that we don't fight with prosecutors (and they with us) every bit as forcefully as civil plaintiff and defense lawyers do.  Maybe it's just that with so much more than money at stake, and so little billing by the hour on either side, we're often more accommodating about the truly trivial.

Or maybe we just deceive ourselves.

In Berger v. United States, Justice Sutherland wrote of the duty of a prosecutor.

[W]hile he may strike hard blows, he is not at liberty to strike foul ones.  

The blows the (unnamed) assistant county prosecutor and Henry Hams exchanged probably weren't what Sutherland had in mind.  Then again, is not quite what Justice White was talking about in his concurring and dissenting opinion in United States v. Wade when he observed that

we countenance or require conduct [of defense counsel] which in many instances has little, if any, relation to the search for truth.

Henry Hams is in jail tonight.  He's charged with resisting arrest and aggravated battery in a public place. Both felonies.  He'll be in court tomorrow to have bond set.

h/t Law of Criminal Defense