Wednesday, July 27, 2011

Who We Are and What We Do - Once More into the Breach, Dear Friends

A young criminal defense lawyer gets hammered day after day.  A court issues a particularly egregiously offensive ruling, ignoring the facts, misrepresenting the law, all to ensure that the young lawyer's client is convicted.  He writes half a dozen criminal defense lawyers he knows, respects, has worked with, who've been doing this far longer than he.
I have noticed that several of my brethren in the defense community seem to take the ubiquitous hypocrisy and duplicitousness in the practice of criminal defense with a block of salt.  Others laugh it off.  Still others are so incompetent, they never realize just how bad it is.  While still others feel that no matter how bad the decisions of the executive and judicial branches of our state and federal government, the criminals probably deserve it.

Stuck as I am with my libertarian slant on everything and a sort of passion, and perhaps infatuation, with the Constitution and its ideals, I am angered, frustrated, and exasperated by the intellectual dishonesty and incompetency of judges, prosecutors, and lest I be accused of some bias, other criminal defense attorneys.

How is it that each of you has confronted these concerns throughout your careers?  (Other than the occasional libation).
Here's part of what I wrote back, revised and expanded (a bit) for the blawgosphere.
Look, criminal defense lawyers, at least the ones who are serious about it, mostly cynics.  If we didn't start out at least a little that way (and I suspect most of us did), we learned and earned our cynicism in the trenches as we watched the facts distorted and the law mangled by prosecutors and judges so that out clients could get screwed.
And yet cynicism is only half the equation.  It's flip side is romanticism.  As we are cynics, so we are romantics.  Our role model is, ultimately, a cross between Sam Spade, who won't take the fall for Brigid O'Shaughnessy because every fiber of his being wants him to, and Don Quixote, tilting at windmills and getting battered but by god he gets up again to go after the evil he sees - and to preserve the beauty. 
I knew a guy in college, intellectual, smart as a whip, did way too much heroin.  He's now a professor of classical literature.  He said one day that he wouldn't have minded being a slave in the middle ages just to know that something as beautiful as the cathedral at Chartres was being built.  I think he was wrong, but that's the attitude.
A couple of months ago I wrote a post in response response to John Kindley who was beating himself up and thinking about quitting law because he could no longer believe that the judges would do the right thing, no longer believe that they were even interested in justice.  A regular reader, a guy who calls himself "Mad Jack," wrote a comment but really it was his advice to Kindley.
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.
Because, see, we actually win sometimes.  And we do make a difference for people.
On the one side is all that power: police, prosecutors, judges, the newspaper, Nancy Grace, public opinion - even the law.  On the other side is our client.  And we intercede. 
You want to get to him?  You have to go through me.
And of course mostly they do.  Go through us, that is.  
The lone citizen can't withstand a tank.  Remember Tienanmen Square.
And yet Thoreau was right.
Any man more right than his neighbors constitutes a majority of one.
Battered but never beaten because it's the fight that gives us strength and because dammit, we're right.
And so we pick ourselves up and do it again the next day.
Once more unto the breach, dear friends, once more;
Or close the wall up with our English dead.
In peace there's nothing so becomes a man
As modest stillness and humility:
But when the blast of war blows in our ears,
Then imitate the action of the tiger;
Stiffen the sinews, summon up the blood,
Disguise fair nature with hard-favour'd rage;
Then lend the eye a terrible aspect;
Let pry through the portage of the head
Like the brass cannon; let the brow o'erwhelm it
As fearfully as doth a galled rock
O'erhang and jutty his confounded base,
Swill'd with the wild and wasteful ocean.
Now set the teeth and stretch the nostril wide,
Hold hard the breath and bend up every spirit
To his full height. On, on, you noblest English.
Whose blood is fet from fathers of war-proof!
Fathers that, like so many Alexanders,
Have in these parts from morn till even fought
And sheathed their swords for lack of argument:
Dishonour not your mothers; now attest
That those whom you call'd fathers did beget you.
Be copy now to men of grosser blood,
And teach them how to war. And you, good yeoman,
Whose limbs were made in England, show us here
The mettle of your pasture; let us swear
That you are worth your breeding; which I doubt not;
For there is none of you so mean and base,
That hath not noble lustre in your eyes.
I see you stand like greyhounds in the slips,
Straining upon the start. The game's afoot:
Follow your spirit, and upon this charge
Cry 'God for Harry, England, and Saint George!'
Shakespeare, Henry V, Act III, Scene 1


  1. 2:17 AM ... Don't you ever sleep ?

  2. Does the government ever stop fucking with the people?

  3. I suspect that radical worldly cynicism is the flip side of the only lasting optimism. We were told long ago that "all is vanity and a chasing after wind." I don't pin my hopes on personal immortality. It is enough to know that God is God, and in Him (Her?) nothing that is true, good and beautiful is ever lost. It is evident and beyond dispute that the world as we know it is passing away before our eyes. The innocent imprisoned former client whose fate I regard as bound up with my own knows these truths and trusts in God. I have not broken faith with him nor he with me, and I look forward to the day in the near future when I can testify truthfully how I let him down at trial. I look forward to reading in the local newspaper that he will be getting a new trial because his lawyers were incompetent.

    The prospect of this not coming to pass would be absolutely unbearable were it not for the realization that none of us, not him, not me, are home. "We are all just prisoners here, of our own device." Of course, this is a truth that can be perverted. Scalia, as I recall, has sought to justify the death penalty on the grounds that, for religious people who believe in an afterlife, death is not the worst that can befall a man. "For offenses must come, but woe to that man by whom the offense comes." All that matters in this world are the actions we take for the sake of what is everlasting.

    I have said before, and meant, that I'd turn in my license to practice law in less than a second if it could free my innocent former client. Which is really just hot air, because that's not an option available to me. I am still up for the good fight, and believe there's much good I can do as an attorney. But to me whatever good I can do as an attorney is bound up with being an outsider, even (to put the romantic spin on it that you reference) an outlaw and an enemy of the State. And I have to recognize that ultimately I only serve as an attorney at the pleasure of the same handful of people who unjustly condemned my innocent former client. If I want to fight the good fight, I have to have more in my arsenal than a weapon which can so easily be taken away. I have to have the same measure of indifference towards my status as an attorney as it behooves a man to have towards all things in this world.

  4. Whatever floats your boat, John.

    I don't think there's a god out there, and I think organized religion (disorganized religion, too, now that I think about it) is even more dangerous than government. Though some good now and again gets done in the name of each.

  5. I suspect the danger you think you see is the tired charge that hope in the hereafter leads the religious to not care as much as they ought about what happens here and now. To the contrary, there is nothing more important than what we do here and now. The hereafter is here. I assure you I care about what happens to others and about what happens to me. But I wonder where people who've suffered cataclysmic tragedies, like the loss of a child, or a wrongful conviction and imprisonment, find the strength to go on. Just sayin'. I think we've gone around on these questions before, and we don't have to go around on them again.

  6. You're wrong about my problems with religion. You're right that there's no reason for us to discuss it.

  7. You're wrong about my problems with religion. You're right that there's no reason for us to discuss it.

    The key word being 'us', meaning you and John. Now me, on the other hand... you could easily discuss your hard spots concerning religion with me.

    Thanks for the honorable mention, by the way.

  8. Do you also get cynical about (1) winning a trial for a person you know was guilty; or (2) having clients you know are lying to you?

  9. You're really asking two questions:

    1. Do I think that the factually guilty shouldn't be defended? Of course I don't think that. Besides, I don't get to decide who's factually guilty. But there's this: It's a virtual certainty that far more factually innocent people are convicted of crimes than factually guilty people freed by the courts.

    2. Am I cynical about human nature? Yes. Everyone lies. Sometimes about big stuff. Sometimes about trivia. Would I rather people not lie to me? Sure. Do I live in a world where I ever expect that to happen? Nope.

  10. Let's add a #3, #4, and #5: Do you get cynical about having to (3) attack the credibility of a witness by using inconsistent statements etc when you know she's telling the truth; and (4) putting on witnesses whom you believe (but don't of course know) to be lying, bribed, threatened, etc.; and (5) gaining acquittals where witnesses don't show up when you believe they're avoiding court because they're scared of being physically harmed (where, of course, you yourself have done nothing to create the threat, but where your client and his friends/family may be doing so)?

  11. Look, what you really want to know is whether I recognize (as you do) that representing those accused of crime (or convicted of it) sometimes means standing up for reprehensible people who have done (and will do) reprehensible things. And if I do recognize it, am I either morally bankrupt or deeply ashamed of myself.

    So let's cut to the chase, shall we. Yes, I know that some of my clients are not morally pure. I know that I have represented some people who have done terrible things and would willingly do them again if the circumstances encouraged it. I'll have some clients like that in the future, too. And some are not above reprehensible acts designed to suborn the system.

    Will I knowingly put on perjured testimony? No. That's a violation of the rules by which we operate. Will I lie for a client? No. Same thing.

    But I believe in a system where somebody is supposed to stand up to the government - to stand between the government and the accused; to stand beside him no matter what and represent him fully. I think that's actually a noble thing to do.

    I don't think it's morally iffy. I'm not ashamed. I'm actually proud to stand with the reviled. Even when I disapprove mightily of what they've done.

    Not everyone can understand that. Not everyone can appreciate it. But it's how our system of what passes for justice is supposed to work. Prosecutors are supposed to seek justice (whatever that means). Defense lawyers are supposed to defend - even the seemingly indefensible.

  12. The point is not that criminals don't deserve good lawyers. Of course they do! The point is that one-way cynicism that acts like all the morally questionable issues are on the other side is intellectual laziness, veering into intellectual dishonesty.

  13. There are honest and honorable prosecutors and judges. There are dishonest and dishonorable criminal defense lawyers. And doctors and accountants and auto mechanics and plumbers and garbagemen and garbagewomen. What else is new?

    The government is typically in a position to hurt more people in more ways and for more time than the worst of my clients.

    I write about what interests me.

    If you think I'm intellectually lazy or dishonest, so be it. At least I'm not sniping from behind a shield of anonymity.

  14. I don't get emotional. It is just a business; Nothing more.