[Update: A follow up post with additional thoughts here.]
I always thought we were brothers (and sisters). You, the criminal defense lawyer in private practice, and I, the public defender. Cousins of a sort. We had one common objective: acquittals defending the Constitutional rights of those unlucky enough to be sucked into the vortex that is the criminal justice system.
But now it seems that there’s this schism between us. This divide that I’d never noticed. Your annoying wife, if you will. The one who tolerates me, but doesn’t really like me. I’m the Democrat to her Republican. Commenter Bill Thompson explains:
Your observations are but the tip of the iceberg relating to the inherent conflicts between the private bar and public defenders. The “money” factor is the absolute wedge dividing otherwise natural allies. Apart from the scare tactics you reference is the over-riding division between the two regarding general policy considerations. PD’s here complain about the phenomenon of over-indictment, while private practitioners celebrate it as “the difference between driving a Chevy and a Cadillac”. PD’s speak of decriminalizing drug offenses while profit-minded attorneys rue the day. It’s these differences which typically land a lawyer interested in criminal defense in one camp versus the other. Of course, there’s also the practical considerations of running or not running an office. Of paying or not paying support staff. Of looking for or not needing to look for clients. Of contributing or not to judicial candidates. Under the best of circumstances, the alliance between PD’s and private practitioners of criminal defense will always be tenuous at best. Loyalties are unfortuately compromised by the Almighty Dollar…
In today’s hyper connected world of 24 hours news and in-your-face social media that tweets breaking information before you have time to read it, one of the great concerns among legal professionals is keeping the jury pool free from pollution. As information is more widely and easily available, more and more people are becoming intimately aware of details of even routine criminal cases in their towns.
This presents an added challenge in weeding out those potential jurors who’ve already heard about a case and who might have made up their minds about the guilt or innocence of a defendant. The core right, of course, is the right to trial by an impartial jury.
But there’s another concern, one that not many pay attention to or can do much about: and that’s the post-verdict informational session usually conducted between the judge and the jury. This has happened after every trial to verdict I’ve been a part of: the judge slips into the jury deliberation room, chats with the civic minded people who’ve just discharged their important duty and proceeds to give them the dirty details of the case (and occasionally to answer questions).
Invariably, this discussion comes around to the defendant. And when discussing defendants, there’s nothing juicier than discussing a defendant’s criminal history. The jurors, besotted by curiosity, may ask questions about the defendant – to know what kind of person the defendant is: has he done this before? Does he have a record?
Some judges may choose to ignore such questions and some may not. Some public defender wrote in to the Legal Ethics Forum to ask that very question: what do you do with a judge who reveals the defendant’s criminal history to jurors post-verdict?
This past summer I tried a criminal case in federal court. After the guilty verdict but before the jurors were dismissed, the district court judge told them about my client’s prior bad acts. I would like to write an article and argue that this is wrong because it damages the future jury pool. If it cannot be done in Texas state courts, why should the federal courts be any different? Could you tell me of any articles or periodicals dealing with this issue?
Remember that stupid post I wrote about some article on some site that suggested that defendants were better off with private lawyers (a particular private lawyer, actually) than public defenders because pd’s are overworked-underpaid-useless-etc?
Turns out one of my two readers also writes a blog for the Seattle Weekly and the post was picked up there and the enterprising author sent the law firm in question an e-mail.
It took two days, but we now have some idea of what happened: Lovik & Juhl (the law firm) say they didn’t write the piece, nor did they pay anyone to write it. From the statement they sent to the Seattle Weekly:
I really haven’t a clue who may have written this (we have no staff, just two attorneys, neither of whom publish on any site like the one you have linked to here.) My guess would be that one of the services we use to try and drive traffic to our website has done this to try and make themselves appear more valuable to us. We have recently cut ties with at least one agency that we found were using fake names to give us “client reviews.” I didn’t feel right about that, either.
Lovik says the most likely culprit is a guy they hired to redesign their website. But the lawyer says he’s “just a kid.” And doesn’t want to reveal his name nor hurt his reputation based on what he sees as a misguided attempt to help the firm.
I have received e-mails from this young “kid” and I, too, am not going to name him. There’s no point. There was a lesson to be learned here and it seems that everyone has learned it. For Lovik & Juhl: outsourcing marketing = outsourcing ethics and reputation. I, for one, have learned that I really shouldn’t give a crap.
So, here’s what I’ve done: I deleted the content of the previous post and replaced it with a link to this one. If someone with better SEO knowledge tells me that it would be preferential to delete the original post in its entirety, I’m willing to consider it.
In the meantime, I would recommend that Messrs. Lovik and Juhl read Mr. Bennett’s post above and join us in the blawgosphere the right way.