a public defender

If you're new here, you may want to subscribe to my RSS feed. Thanks for visiting!

Normally, I’m not one to advocate speaking to the press about anything related to a specific case. I’ve normally attributed the following reasons to this belief:

1. It’s not necessary

2. Most lawyers aren’t good at it, so why take a chance

3. The media almost always gets it wrong and writes whatever they want anyway, so why bother?

But with the proliferation of online news sites and the constant availability of news that makes any little story worth reporting on, I’ve begun to re-examine whether my reasoning is still valid.

More than any other, I think it’s reason number 3 above that has led me to believe that perhaps we should be making an effort to speak to the press after an arraignment or the resolution of a case. For far too long, I’ve complained about the lack of nuanced reporting from those assigned to the court beat. For far too long I’ve lamented the fact that these seasoned reporters can’t seem to get their basic facts straight and tell the story in a legally consistent manner.

On a cold day in January, 1963, 9 men sat atop a perch and listened, for hours, to three other men argue for and against the means to dispense equal justice for all citizens of these United States. A short two months later, in March, Gideon v. Wainwright was born, mandating that States were required to provide attorneys for those who could not afford them to assist with the defense of criminal accusations.

At the time of the decision, public defender systems and counsel for the indigent wasn’t a novel concept: almost 45 states already had either full-fledged public defender systems or court rules that provided for the appointment of counsel. Gideon just provided a Constitutional basis for the widespread notion that all defendants should have access to counsel, in spite of their financial abilities.

Of course, the application of Gideon has been uneven over the years. Some states have strong public defender systems and some provide counsel in a piecemeal, arbitrary and haphazard manner. Much has been written, and continues to be written, about the state of indigent defense.

Without adequate funding, the reality of Gideon’s promise will fall far short of the ideal. Of course, public defenders aren’t the only players in the game: there is the private defense attorney, who existed long before Gideon provided a way for me to have a job. People with some income are free to hire such an attorney and will always continue to be so.

A new idea has been tossed around these parts (and by that I mean the blawgosphere) over the past few days: that perhaps the best way to ensure equal justice, and for defendants to stand on equal footing with the frightening power of the States, is to have a universal public defender system. “Lawyers for all” is the call, and at first blush it seems like a good idea.

State legislatures these days have criminalized all human actions but breathing. If they are so inclined, goes the argument, then they must also be forced to provide the resources to defend against the zealous overprosecutions. Why must the defendant be left to his own devices and his own resources, when the State has its entire treasury at its disposal? Even the footing, goes the argument, and more prosecutions will fall by the wayside. Perhaps, if they are forced to provide the same resources to both sides, the staggering costs along with the piling “losses” for the State will knock some sense into the “tough on crime” legislators and force a rethinking of the penal code.

It really grinds my gears when I hear lay people (read: tv and movie writers, newscasters, media, your mother, my mother) use the term technicality to describe a violation of some Constitutional right. As in: “The judge threw out the case because of a bad search or something”, “The guy kills a cop and he gets off on some technicality?” or “He was so guilty, but his lawyer got him off on some technicality”.

So here’s my proposal. Let’s start replacing real phrases for the meaningless and incendiary “technicality”. For example, a search that violates the 4th Amendment protection against unreasonable searches and seizures shall henceforth be called “police misconduct”.

A conviction that’s reversed because the prosecutor “forgot” to turn over potentially exculpatory information should be called “prosecutorial dishonesty”.

A case that’s dismissed for lack of probable cause should be called “fabrication of evidence” or “prosecutorial bloodlust”.

“The judge threw out the case because of police misconduct” sure has a better, more truthful ring to it.

Any more ideas?

270...269...268...

A dastardly business, this is. We are businessmen of the worst kind; our currency is not money, but the lives and freedom of others. And with experience and time comes a certain desensitization. I’ve written about this before: 5 years, 10 years, 20…the numbers roll into one another, without much thought.

People become names and names become faces and faces become stories. Most of the time, I pack up at 5, turn off my computer, say goodbye to those I work with and embark on my journey home. “What will I eat for dinner?” I think to myself, or “I really hope there’s something good on TV tonight”. And soon – within minutes really – the day’s events become another closed chapter in a book that is overflowing with the lives of those we will never live.

And yet, every once in a while, a client takes hold of you like some persistent and nagging tune that refuses to let your brain be. Someone for whom you know you’ve done well – very well, even – and yet not even close to enough.

Someone for whom the impossible would be the only just outcome. Someone who, by all accounts, wasn’t entirely innocent, yet any punishment would cause far more damage than that which he may have caused to another. And as I sat with him the morning of his entry into this foreign, cruel and neglected world, I could not help but feel like I was witnessing the start of something terrible. I was watching – shepherding, really – a meek lamb into the mouths of cruel, vicious lions. I was complicit in the sacrifice of a simple man; a man who may have done wrong not out of any salacious desire or evil bent of mind, but rather because of that simplicity.

And the confused stare that greeted me when I set about discussing the morning’s act only served to deepen the anguish. His sentence is not long, really. 9 months instead of what could have been decades. “Appropriate in light of the circumstances”, we love to say. And appropriate it might well be. Yet it is 9 months too long.

Perhaps it is because I see shades of myself in him. Perhaps because I know the other clients I have that will populate the same jails as he will. Perhaps because I know, on some level, that he will come out a vastly different man. Perhaps it is because he believes I failed him. What is it about this particular client, I can only guess.

What I do know is that it has now been 3 days since this man lost his freedom. For me, these have been three long days. For him, they must have been longer still. I know that before he sees the sunlight as a free man again, the world will have gone through several seasons. Winter will pass, leaves and grass will grow, we will all suffer the rigors of maintaining our lawns and we will watch the start of the fall colors, perhaps even hear the first complaint about the impending cold weather again. Some will remark how quickly the summer has passed us.

And one, in particular, will note each interminable passing day, existing in slow motion, a life having changed forever.

There are 270 days to go and I intend to count each one.

Photo by boo_licious.

Comparisons have been drawn, in recent days, between our condition and that of Milton’s Satan and Abdiel. Meaning has been sought to explain who we are and what makes us do what we do.

It is a curious profession we have chosen; those of us who dedicate our lives to defending the freedom of others. Certainly not I, nor most people I know, sought admittance into this small group with any notions of fame, grandeur and constant success. To the contrary, we were, and are only too aware that most battles we fight will be lost. Yet we carry on, day after day, year after year, pushing the rock up the hill.

To be sure, there are victories – some small and some big – yet the nature of the beast, the fabric of the system is such that we may be able to poke small holes in it only to soon become enveloped in it.

Even though we are not ourselves the object of the fire that spews from this beast’s nostrils, we deliberately place ourselves in that path. To get to my client, this other human being, you have to go through me. A small rebel force for hire, as it were.

But the damage we suffer, the blows we take, are small in comparison to the eventual destruction that is wreaked upon the life of the client. We dust ourselves off, sometimes taking longer than usual, and move on to the next person in need.

It is a sort of self-flagellation, I suppose.

I’ve never really thought about why I chose to subject myself to this. It seemed like a question that did not merit a response. I understand why the function is important: as the Emperor Julian is alleged to have said “if it suffices to accuse, what will become of the innocent?” To put in layman’s terms, the slippery-slope; there but for the grace of God…

But we do not exclusively represent the innocent; hardly ever, in fact. And yet even when a man we suspect to be guilty of the crime is he accused of committing is found to be so by a jury of his peers, the reaction is not of resignation or acceptance or that justice was done. There is always, unhesitatingly, a sense of defeat, failure and loss.

Maybe there’s nothing so profound about it all. Maybe we are just driven by our distrust of the Government and our desire to see that its laws are upheld in a consistent and orderly manner.

Are we Miltonian heroes? I’m not smart enough to answer that question. What I do know is that I have a job to do. A job that I know will most often end in failure and that the task is futile and yet I do it, day after day, year after year, decade after decade.

In that sense, I am Sisyphus. I must be happy.

Or: Didn’t your mother ever teach you not to speak ill of the dead, David Martin? David Martin, of course, is the man who “represented” Cameron Todd Willingham, the possibly innocent man executed by Texas on the basis some rather dubious arson evidence.

Willingham is dead, there is a controversy over his innocence and David Martin was apparently missing the limelight. So he decided to give an interview to the press in which he said the following:

The veteran defense attorney represented Willingham at trial. He looked at all the evidence. And he has no doubt that his client deserved to die.

“I never think about him, but I do think about those year-old babies crawling around in an inferno with their flesh melting off their bodies,” Martin said. “I think that he was guilty, that he deserved death and that he got death.”

This is a man that, at least in name, represented Willingham. A lawyer, a member of the bar and a capital criminal defense attorney. I use the quotes around the word represented because:

Martin’s case was brief, with just two witnesses. The first was the family baby sitter, who testified there was an oil lamp in the hallway, suggesting it might have spilled and spread flammable liquid. The second was a jail inmate, who was going to dispute the testimony of a jailhouse snitch who claimed Willingham had confessed. But the judge forbid most of his testimony as hearsay.

But of course, one cannot keep a champion fool like Martin quiet. This is not the first time he’s opened his mouth about Willingham and his belief in Willingham’s guilt. A mere few months ago, when the arson story broke, he gave an interview on Anderson Cooper:

[youtube]http://www.youtube.com/watch?v=L5cFKpjRnXE[/youtube]

I must’ve missed it, but my good friends over at Defending People and Simple Justice didn’t (see Mark’s post for links to other posts on Martin’s stupidity).

As Scott summed it up:

While no one can make a criminal defense lawyer believe in the innocence of his client, or chose to argue it after his representation has ended, he can be taken to task for doing the unthinkable, the outrageous and the facially wrong.  David Martin’s comments are a disgrace of the lowest order.  And, for good measure, just as criminal defense lawyers aren’t expected to believe in the innocence of every client, they similarly aren’t endowed with the superhuman ability to know when a person who professes innocence is in fact guilty.

I may lack an explanation for what drove David Martin to condemn his own client publicly, particularly in the face of overwhelming evidence of innocence, but I have no doubt that his statements on Anderson Cooper 360 are some of the most despicable I’ve ever heard from the mouth of a lawyer.  Never, but never, smear your own client.

I’m glad to say that no one I know would act like Martin did (although one has come close).

You want bread? Three dollars!

Eeny, meeny, miny, moe, goes the counting rhyme, the primary use of which is to select someone random to be “it” in a game. As anyone who’s ever used this rhyme knows, it’s rather easy to manipulate the rhyme (or where you start it) to “randomly” select a predetermined person.

The prosecutor’s office in San Diego is rather more blatant about its singling out of a judge to be “it”:

San Diego Superior Court Judge John Einhorn, who has presided over many high-profile cases, [...] is under a boycott from the District Attorney’s Office.

For about two months, Einhorn has been under a “blanket challenge” by the prosecutor’s office. That means any time a case is assigned for trial to Einhorn, prosecutors use a legal tactic called a peremptory challenge to block the case from going to the judge.

If this happened in Texas, I’d shrug it off as another installment of “It only happens in Texas”, but this is California, the land of the free and the home of the Governator.  Maybe some of our California brethren can inform us what this “peremptory challenge” is. Is it a device of state law or just state procedural rules? Regardless, the fact that the prosecutor’s office has employed this tactic against a solitary judge for two months straight should raise some eyebrows and concerns about their motivation and their role, aka “justice”. When asked for comment, this is all the prosecutor’s office could muster:

“This decision was made after careful consideration and thoughtful review over an extended period of time,” she said. “It is a judgment call made in the best interests of our clients, the People of the State of California, and the cases we are prosecuting.”

Normally, one would replace those sentences with something like this: “This decision was made after some anecdotal evidence that this Judge doesn’t accede to our every demand and seems to have some sympathy for criminals who rape and murder your children and those illegals who cross over the border to steal our jobs. Thus, since he has respect for the Constitution and there is no place for such liberal namby-pambying in the criminal justice system, which means we can’t bully our way into raising our conviction numbers which is all we really care about, we’re going to throw a hissy fit and say to him: NO SOUP FOR YOU!”

Okay, maybe not that last bit. But here, there seems to be no reason for the prosecutor’s office to be disenchanted with Judge Einhorn:

And a game it is.

Every so often, because that is the nature of the beast, a judge will ask the lawyers during a pre-trial if they’re “ready to put numbers” on it. Either today, or next time. Numbers: the sanitized way of saying “let the dance begin”. When cases are thought of in terms of numbers, it’s easy to be dispassionate, to be detached from the sad reality underlying the wheeling and dealing.

Numbers are a way to numb yourself to the concept of incarceration. And numbers are common place. Sometimes I think numbers are thrown around without any regard to their actual value. Just as in science, numbers have no meaning if they don’t have units. Take this example:

Try this problem: a train of length 2, weighing 200, travels from Denver to Santa Fe at 15. How long did the trip take?

Yeah, that means nothing, right? Just as I feel that often “numbers on a case” mean nothing to the parties uttering the words. 10/5/3 is a common refrain. 20, 25, 30. As the numbers keep getting bigger, they shed meaning.

10/5/3, in our terms, is a sentence of 10 years’ incarceration, suspended after 5 years of jail time, followed by 3 years on probation. But when you say 10/5/3, you can avoid ugly words like jail time or incarceration. And we throw around numbers like candy. “Well the State wants 12/6/5. What’s your counter-offer? Make it reasonable.”

Reasonable. What’s reasonable? It’s a barter, a trading of liberties for wrongs committed. The whole thing is ugly. And yet it may be the only dignified way of resolving criminal prosecutions. Going to trial is easy. Declining to prosecute is easy. It’s this numbers game that the most difficult part.

What do we do when “put numbers” on a case? We assign an arbitrary value to the actions of one person, usually against another. What’s taken into account? The injury, society’s view of the heinousness of that act, the loss to the victim, the propensity of the offender to offend again and rarely the person who committed the act. But it’s still arbitrary in the end. Because they’re just numbers to us. None of us – the judge, the prosecutor or me – have to actually do the time. It’s easier to say “20″, when you don’t have to worry about what it really means.

It’s a struggle, honestly. A struggle between my acknowledgment that society has to exact its revenge for crimes committed against it, my duty to my client, my pragmatism and ultimately my utter horror that we are about to deprive someone of their freedom for any period of time.

I have a really difficult time telling a client to accept a plea offer that involves any jail time, let alone numbers in double digits. I do it, because I would be a lousy lawyer if I didn’t. But every time I hear a number, or utter a number, all I can think of is if I had to do that time: the things I’ve done over that time span going backwards; the things I will do going forward. And then I look at the man sitting in front of me and realize that there is no hope. That we’ve treated years of his life like chips in a game of poker. They wanted 5, I offered 3, we settled for 4.

There has got to be a better way.

Man is neither inherently good nor bad. I believe that we act in ways because we are, for whatever reason, compelled to do so. I believe that we, as a society, need to assign labels to define behavior, to make ourselves feel better.

As someone who stands in a room of judgment, day after day, and watches society impose its collective morality on those that it deems the outliers, I cannot help but believe that there is something fundamentally askew with us. That our desire to control, to bring order, to inject sense where there may be none has blinded us. That we have drawn lines so sharp and clear in the sand that we have forgotten that there is no such thing as good or evil. I believe that it is our perception of acts that classifies them as good or evil.

I believe that the man who is about to spend the next 5 years of his life for shooting someone else has the same capacity for evil as the man who is sending him there. I believe that there is none among us who could not lift a finger to hurt another; just as there is none among us who wouldn’t lift a finger to help another. I believe that our actions are the product of our circumstances and thus, we are capable of anything: good or bad.

I believe that there is no act, however good or bad, that cannot be explained by the circumstances preceding or surrounding it. I believe that if we only chose to pay attention to those circumstances, that we would understand that. I do believe that the majority of us are better at controlling our base desires, of having better hold on our emotions and it is merely that which we are punishing in others: the lack of self-control.

I believe that we all have a breaking point; a point at which “we” become “them”. Some of the nicest, most docile men that I have met are those that have taken another life. Some of the angriest, most close-minded men are those that seek to judge others without recognizing the same capacity in themselves.

I believe that in order for us to evolve as a society, to have more “good” than “evil”, we must stop judging. I do not believe that people should not be punished, but that punishment must come with understanding and with mercy. I believe that it is easier to paint those that do not conform to our notions of “good” with the same broad brush of “evil”, but that it is more damaging. I believe that it is harder to look behind the acts that we are judging and recognize that capacity for good, but that if we tried – sincerely – we would all take a step forward toward making ourselves “better”.

I believe that it is difficult to believe this, but believe it I must.

Over the last three months or so, I’ve twice had the experience of riding the elevator with a client. There’s nothing out of the ordinary about riding the elevator with the client, but these two particular times, the proverbial bell was tolling. Both times we were on our way to find out the verdict of a jury of my client’s peers.

Both times, I looked over and stared at the face of a man who had placed his faith in me and in the justice system. Some might call that foolish (I might be one of them) and some might call that rolling the dice. Both times, though, I couldn’t imagine what it felt like to be him.

As any regular readers left out there know, I consider myself able to empathize with the plight of our clients, to have some insight into their world and their though processes. But this…this was a foreign emotion to me. One that I could not duplicate in my own mind.

How, I asked myself, did they have the courage to step off that elevator and into that courtroom, knowing full well that they may never walk out again into those hallways and out those doors?

Maybe my experience with the system is a curse in this regard. I’d never, never (well okay, almost never) risk a jury trial. I’ve come to the conclusion that jury trials are a crapshoot. That you’re always taking an immense risk placing your fate in the hands of 6 (or 12) strangers, who might have their own agenda and their own skewed view of the evidence. That you’re placing your fate in the hands of your lawyer, who may – with the best of intentions – pick the wrong approach to convince your jury.

Everyone knows what the consequences are of going to trial and losing. It’s called the trial tax for a reason.

I’m more convinced than ever that I’d never take that risk. That I’d probably plead to something I didn’t do to spare myself the agony of the Russian roulette that is a jury trial.

I’m sure there are many more like me. Which means there are many, many more innocent people in jail than we currently estimate.

More than anything else, though, those two moments emphasized to me the awesome responsibility we have and the seriousness with which we have to execute our duties. We can get jaded after a while, but we all need to remember that simply by representing someone we are shouldering an awesome burden: the faith of another individual and the delicate fate of their freedom and liberty. This not only means that we have to zealously advocate for them, but to them as well.

I don’t think I’d have the gumption to step off that elevator to hear a jury’s verdict. I’d probably run.

Down under, the very curious tale of Judge Marcus Einfeld is unfolding in tragic fashion. The judge, a 70 year old champion of human rights, is now facing 2 years in jail – all for thinking that he could get out of paying a $53 (£36, really) fine for going 6 miles above the speed limit (yes, they have “strict” cops in Australia to0).

It wasn’t even really about the money – it seems he could afford that – but rather about those dastardly points that get added to one’s license for traffic infractions. Apparently he was close to whatever limit there is and risked losing his license. So he did the simplest thing he thought of at that moment: told the judge that someone else was driving his car:

“Who is this guy?”, an experienced trial attorney recently confided in me, is one of the essences of jury selection and the best we can hope to do. Prospective jurors are faced with a pretty intimidating (and boring) day. “What do you think of the presumption of innocence?” “Do you need to hear both sides of the story?” “Are you racist?” “Have you ever been the victim of a crime?”

They’re subjected to intensely personal questions and constantly asked “tell me more about that”. They’re expected to bare their souls to 3-5 complete strangers, all in a 45 minute span. No one even buys them dinner or drinks first.

Most people in a jury panel aren’t stupid these days, either. They know the drill; they’ve been around. Either they themselves or someone they know has been called to jury duty. They’ve seen enough TV shows and news reports to know the drill. Whether they admit it or not, they know what the correct answers are.

Which makes answering the question so much more difficult. No one wants to seem prejudiced or bigoted in public, in front of complete strangers. This is why, I believe, in a number of cases “rehabilitation” of jurors is a crock of shit. The cat’s out of the bag and now everyone’s trying desperately to shove it back in.

We talk a lot, as lawyers. It’s in our job description. The old classic misnomer is that if you can debate or argue well, you’ll make a good lawyer. We do it all the time: we talk to judges, we talk to clients, we talk to each other. Talk, talk, talk. It gets exhausting after a while.

The one thing no one tells us to do, or teaches us to do, is listen. Listening is just as important as talking in our line of work (in any, really). Over the past month, I’ve seen clients get angry at their lawyers because the lawyers didn’t listen, I’ve seen lawyers lose out on good deals because they didn’t listen to judges.

It isn’t that hard, or is it? Are we that ego-centric that all we care about is spewing our bit and then watching it waft into the world, while the important information from those around us misses us.

It really is the death-knell for a good lawyer – the inability to listen.

I was already resolute in my decision to listen, but the past month has made me that much more sure. Try it sometime; it might surprise you.

I’ve spent pretty much all day thinking about the “trial list” and when I’ve managed to move onto other pursuits, it comes back into focus. For those not “in the know”, a trial list is a list of cases presumed “ready” to go to trial in a given court. The exact practice differs from court to court, but the general idea is that if you’re unable to come to a resolution, the matter will be placed on the “trial list” and then you will be given a certain period of notice before jury selection starts. In some instances, this “notice” could be as short as 48 hours (or is it 24?).

I’ve been told by the Texas Tornado that they too have a similar process where they have to check in every morning for a period of two weeks or so to find out if they’re picking a jury that day.

If this seems somewhat bizarre to you, that’s because it is.

learn from the master

Update: Since none o’y'all want to show your appreciation for this fine Free Information^TM, I had to pull out all the stops and insert this picture of J. Scalia. Now comment, or he’ll tell you how rude you are.

Original: We, here at A Public Defender, are a magnanimous sort. We have some amount of knowledge and we like to share it, however infantile or irrelevant or useless or wrong it may be. It is one of our hallmarks and we know you love us for it.

After all, who else would give poor, overworked, overwhelmed and overburdened law students some nifty pointers on objections. Who else would divulge the secrets of the law school experience and share our collective wisdom gained through that process?

No one, that’s who.

So, kids, sit back, grab some popcorn, uncork that Rioja (that’s for you Charon), light that joint*, shoot that dope* and get ready to learn.

This time, we won’t be presenting you with a list. Lists are so 2008. I’ve got something better. A live demonstration. All you ever need to know about cross-examinations and objection techniques and biased judges and, of course, how to roll over, is in this video. You can thank me in the comments.

(The video, unfortunately, is below the jump, because some people are still stuck in 1954, using IE6, which apparently can’t handle a simple Flash embed and crashes constantly. For those of you using IE6 [seems to work in IE7] (and really, please shoot yourself now), you can watch the video here. HT)