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…

Say it ain’t so! While I acknowledge that in a purely economic sense we have divergent interests, I always thought that we were united by our ultimate goal. That we could rise above the pettiness of the pursuit of the dollar and instead join hands and smoke a Jerry Garcia fueled joint of peace, love and Constitutionality.

I’d imagine that every most some private attorneys do have a momentary selfish thought when talks of decriminalization make the rounds. After all, drug offenses would make up the bread and butter of the average attorney’s practice. Don’t we all know those criminal defense lawyers, who will take any case, for any price? Of course we do.

I guess I’ve never considered the economic viewpoint of the private attorney, because I’ve never had to. So I’m doing it now. I know that the regular voices in the blawgosphere will certainly deny this, but they’re a small minority (statistically speaking). So what of the majority? Is there a wedge between us? Is it money?

Maybe Norm isn’t that far off base in his call for an universal public defender system, after all.

And because a post like this wouldn’t be right without some music, here are two videos, one for the older among you and one for the younger, plus this bonus link.

[youtube]http://www.youtube.com/watch?v=WCkOmcIl79s[/youtube]

If you were born after 1980, watch this (Mr. West uses some bad words, so if you don’t like that kind of language, don’t listen):

[youtube]http://www.youtube.com/watch?v=AHjPQygyPqw&feature=related[/youtube]

My post “10 things I didn’t learn in law school” led to a bunch of comments here, and some links from other blogs. Most of the commenters and other bloggers got it. One person, in the comments at the Marquette law school blog apparently didn’t.

Now he’s back at it and writes this [scroll to comment 11]:

However, I strongly agree with Chris King’s sense of the proper relationship between legal education and the practice of law. We don’t want law school to be lawyer-training school. When we cave in to demands of that sort from the ABA and assorted study commissions, we actually invite alienation among law students and lawyers. Legal education should appreciate the depth of the legal discourse and explore its rich complexities. It should operate on a graduate-school level and graduate people truly learned in the law.

I don’t know whether to laugh or cry. Laugh at the arrogance and short-sightedness or cry for the students at Marquette. Apparently, we don’t want law school to be lawyer-training. We want it to be law professor training school, because this comment gives the impression that that’s all they know. I think he’s a bit defensive, but I could be wrong.

How teaching students to be lawyers will “invite alienation between law students and lawyers” is beyond me [I actually have a hard time understanding what it even means].

As Scott asks, what the fark does “legal education should appreciate the depth of legal discourse” mean. I don’t know. Sounds like a whole lot of nothing.

You know, this is exactly what I was “complaining” about in my post. To the professor who posted that comment: this isn’t an either/or scenario. There are very few people who are as privileged as you are to teach at a law school. The rest of us grunts have to actually, you know, work for our living. So why can’t we get thrown a bone or two here and there? That’s all I’m asking. Or are you telling me that when I show up in court for the first time, and am asked a question by a judge, it’ll be okay if I spend 20 minutes dissecting the question and regaling the judge with the “rich complexities” of the law?

Will the judge give me a pass if I didn’t know that I should stand while objecting because I will be able to give an oral dissertation on the real meaning behind the dormant commerce clause?

Will I get a pass when I won’t know how to pick appropriate jurors because I will enthrall them with anecdotes from the Federalist Papers?

Will it be okay? If I get fired from my menial day job, can I come work with you?

Bennett says it best:

I propose a new motto for Marquette: If you want to practice law, go somewhere else.

Maybe someone could even translate it into Latin.

And because I’m just so damn charitable, here’s a video:

[youtube]http://www.youtube.com/watch?v=8hGvQtumNAY[/youtube]

For your listening pleasure, set to the tune of…well, you know.

THE 12 DAYS OF ARRAIGNMENTS

On the ____ day of Arraignments, my client came to me with:
12 FTAs
11 Prior Convictions
10 Years Suspended
9 Dumb Excuses
8 Failed Programs
7 Cases Pending
in 6 Jurisdictions
5 AKAs
4 VOPs
3 BCLs
2 DV cases
And the client needs to get a PTA!

Some of the phrases have been changed from the original because, well, the canary has a bad memory. Bad canary!

In honor of ditties, here’s a little ditty for you, because face it, the protagonists would be our clients today:

[youtube]http://www.youtube.com/watch?v=jcJz-x6idd8[/youtube]

Glossary after the jump:

FTA: Failure to Appear

AKA: Also Known As

VOP: Violation of Probation

BCL: Bail Commissioner’s Letter

DV: Domestic Violence

PTA: Promise to Appear

But here are ten things it didn’t teach me:

1. Nobody ever uses the phrase “black letter law“. Seriously. Lawyers who do use the phrase “black letter law” are usually laughed at by cliques of other lawyers. This is an invention of professors, I’m sure, meant to intimidate and harass poor first year students. Black letter law? Is that some Rules of Court book?
2. That you will forever be haunted by names of cases, but not remember a damn thing about the case itself. Who here can tell me about Helicopteros or International Shoe or Pennoyer or Dudley and Stephens? (Okay, that last one is really cool – it’s about cannibalism). Wasn’t there a Vana White case?
3. How to pick a jury.
4. There is no box. Law school professors keep telling you to think outside the box. What they don’t tell you is that there is no box.
5. That law review leads to document review. If you want to do real work, take a clinic or something.
6. Your clients will hate you. They will think they are smarter than you. They will try to tell you what to do.
7. How to deal with #6 above.
8. Most judges haven’t practiced in a while, so forgive them if they make stuff up as they go along.
9. Caselaw and precedent may or may not mean much until you get to an appellate court. And even then…
10. Finally, no matter how long you practice or what you do, there will always be more to learn and ways to better yourself.

What have you not learned from law school?

On that somber note, here’s some nostalgia for hilarity’s sake:

http://www.youtube.com/watch?v=-qHEBABE6PU

There are times, though, when the blawgosphere exposes its ugly side. Slowly but surely, the blawgoshpere is moving away from actual conversation and closer to pure marketing. Everything is about the blogger and the blogger’s business or promoting their business. It’s getting a little dirty. Take, for example, this: Accident Prone, a public defender blogger, wrote about a common experience a few weeks ago:

Dear Private Attorney,

I know you think you know more than I do. Hell, maybe you do. I know that you think dispensing legal advice without, oh I don’t know, “reading the file” or “knowing about what the evidence is” is a good idea.

In the future, if you’re not going to do either of those things, please do not tell my already deluded client that he “should be able to get” a misdemeanor disposition from a felony. Or else, take the damn case and get what he “should be able to get” for him. Oh wait, what? You can’t/won’t/don’t have a valid legal license to do so? Then shut the f&*$ up!

This was clearly a post about an experience the blogger had in real life, but still was instructive: Remember that it’s about the client and not about drumming up business. It’s not about making a name for yourself, but rather for doing something that’s in the best interests of the client. If you do a good job, you’ll get a good reputation and the business will follow and so on. Really, everyone should know this. I know I keep harping on it, but you’d be amazed how infrequently other lawyers actually act in this fashion. Take this response to Accident Prone’s post from a private attorney:

Dear Public Defender,

I am sorry that I can get a better deal for your client than you can. Maybe it is because I have been practicing law for about as long as you have been breathing. False confessions, eye-witness allegations and testilying cops don’t frighten me. I plea bargain, but I do so from a position of power, even when I am the “underdog”. I give your client a feeling of protection and ability.

Chances are I know, taught, mentored or helped elect the judge or prosecutor you are dealing with and s/he will take a chance on a client I represent because I bring a sense of reliability that you don’t enjoy. That is likely because your investment in our legal community is limited to telling your fellow lawyers what rubes we all are or rolling your eyes as we invite you to belong to our bar associations.

Oh don’t forget that while you are guaranteed a salary,I am not. Hence, you don’t work on every holiday or go in on weekends or even return calls… I do.

I give my clients my private cell number and my e-mail address. I am available to him or her 24/7. I am still in my office at 11pm on a pretty regular basis.

I did my time in Legal Aid. I appreciate the work that you do and I enjoyed it when I was doing it, but let’s face it, if I didn’t describe you, I described many PDs who get a lot of credit for dedication, but aren’t always as dedicated as they think. That is why their client is in my office begging me to take his case, and why I can’t. You can take it though, and you could win his undying loyalty and respect, but it’s not free, you have to earn it.

Warmly
Private Lawyer

Sigh.

This is what I mean. A large part of that comment is purely self-serving. It also belies a fundamental lack of understanding of what Accident Prone’s complaint was and what the greater, more deep-seated problem is that we as public defenders face. This is not a contest between public defenders and private attorneys, yet there is a consistent percentage of the private bar that engages in such divisive behavior.

The real problem is the willingness of some to put aside their professional responsibility and duty to the client to make a quick buck. The real problem is the maligning of the public defenders in order to do so. I know you have a business to run, private lawyer. I don’t begrudge you that. But when you start lying to clients or spreading misinformation that makes my job tougher, without taking responsibility for it, I will not sit silent. Just to make that extra $1500 (and I know it is a tough economy), you are willing to stick your nose into a file, give bad advice and then hold up your hands when asked to deliver. That doesn’t work, won’t work and shouldn’t work.

Look, I’ve said to clients on occassion: “why did you hire so and so?” or “I bet you won’t hire so and so again, will you?” But that’s not because I want him to be my client, but rather because I care about the client and want to see him get good representation and certain attorneys have certain reputations.

Our goal is the same and our clients are the same. We should be working together, side-by-side for the benefit of our clients. Your client today may very well be my client tomorrow. It doesn’t serve his interests for you to bad-mouth me now or promise him the moon.

It is our responsibility, both as members of the private bar and public defenders to quash this nonsense when we see it. I can’t tell you the number of times I’ve seen clients – mine and that of fellow public defenders – get enticed by the promises of the huckster. “Well, you can only get me the minimum on murder, he can get me manslaughter”. No, he can’t and I’ll tell you he can’t, but it’s your money and your life. If you want to do it, I can’t stop you, Mr. client. “Well, if I pay him $500, he can get me a program.” Right and so can I, because you’re eligible for a program. Not because he’s in bed with the judge. And this is the problem. Sometimes we’re fighting the fight on four different fronts: the judge, the State, the client and some unscrupulous members of the private bar.

We don’t need to be doing that. All of us in the profession should put our clothes on in the morning with the singular goal of doing something to help a client that particular day. If we don’t, the entire profession gets a bad name.

Scott, to whom I showed this exchange last night, offers his take from the perspective of the private bar. You’ll find some of the same notes being struck there, because he gets it. Let’s hope, after reading these posts, “private lawyer” gets it too.

[We tried to synchronize our posts, but lazy old me got behind. Sorry Scott.]

[Further: Forgive the disjointed thoughts in this post. I wrote and re-wrote it 5 times, so there are leftover fragments from previous iterations.]

So here it is: I like it. A lot.

The law was definitely better, although I thought it a bit suspect that the lawyer in the sexual assault case was pretty openly arguing for jury nullification. What also struck me about that is if the prosecutor was willing to agree to probation, why didn’t he just plead to that? The defense lawyer should have known that he had no defense to the actual assault. But that’s minor.

Also, the behind the scenes skulduggery in the murder trial is pretty much why either MPG or the female prosecutor would have to have recused themselves because of their relationship.

It definitely was more interesting than the first episode, but the re-arrival of the star defense witness was a bit too convenient. I’d like to see it get a bit more real.

Finally, nice shout out to Justice Cardozo there.

What did you guys think? Overall, I thought it got better. I don’t care much for some characters, but I can overlook that.

I will echo one sentiment I saw across the web: please don’t let every client be “innocent”. That’s not how it works and you know that.

10:17pm: So Raising the Bar is on TNT… It’s a little hard to watch, I’ll be honest. I’ve cringed a few times already. Hopefully it will get better.

10:20: Oh my…

10:25: Um, wasn’t there an acquittal on the rape?

10:30: What about recusal? Sorry…I guess I was looking for something more…realistic?

10:31: Oooh boy….I’m just gonna go now. I’ll come back if it gets better.

10:33: Hmm. Very strange chambers discussion… 10 days for contempt? What the hell goes on in New York courts, ScottyG?

10:40: I guess relationships decide guilt or innocence or lengths of sentence. I guess that’s true to some extent (the last bit).

10:45: Looks like no one’s heard of conflict of interest.

Well, that’s it, I guess.

Overall, I think it was entertaining enough that I might watch it next week again. From a legal perspective, it was awful – inducing the same cringes and head-slaps that L&O does, except this is from the defense perspective. I guess my biggest problem with the show is that it’s not realistic – at all – unless this is exactly like NYC courts and NYC courts are a unique universe unto itself. That I have no clue about, but from my experience, this stuff doesn’t happen.

Also, I’d normally advise the writers of the show to get a quick lesson in legal ethics, but seeing as how it’s written by Feige, it’s an intentional disregard of any semblance of prof. responsibility. Which makes it another L&O (and, from me, that’s not a compliment).

I have to say, I like Mark Paul Gosselaar’s hair. A lot.

Overall: C. I’d watch this over Greek, but not the Big Bang Theory.

I’ll probably tune in, just to see what real world experience brings to a legal show. The reviews have been mixed, but that shouldn’t stop you.

For example, some guy in the Boston Herald writes:

In this universe, justice is dispensed on the basis of personal relationships between the court representatives. The defendants are pawns between rivals, roommates or lovers who look to one-up each other.

Never has the justice system looked so silly.

That’s not silly! I read that and think: “Hey! Maybe this show is true-to-life!” So we’ll see. Will this come close to unseating The Practice as the best legal show of all time? I don’t think anything can, but I’ll be very entertained if it comes remotely close.

If you’ve been living under a rock (or just without TV) and want to get a glimpse of this show, here are some links:

Behind-the-scenes

Sneak Peek

But, if you’re using Firefox, you’ll have to download some stupid Turner plugin. Which, in this day and age, is just annoying. So instead, you’re better off using IE for these links (ugh).

Note to TNT folks: There are, like, 200 video plugins out there that don’t require some software install. Use one of them [or just use Flash!?!]. Don’t make me install some special plugin for your website only and under absolutely zero circumstances should you force me to use IE to look at a website. Because once you do that, I’ll never come back to your site.

Yesterday, Prof. Erica Hashimoto (who I think is the individual referenced by Justice Breyer at page 35 of the transcript) had this post up at Concurring Opinions. The post argues, essentially, that the right of self-representation is critical because indigent defendants are often represented by incompetent “indigent counsel” and would be better off representing themselves. She apparently has some history in this area, having authored a January 2007 paper on this topic. The findings of the paper are that pro-se defendants far just as well (or poorly) as represented defendants, if not better.

She does not some limitations in the study – the big one being lack of much data. Her sample size seems to be pretty small too. One limitation I did not see mentioned in the study is the strength of the state’s case. It is very possible that in a lot of pro-se cases, the state recognizes its weaknesses very early on – perhaps the first court date – and offers to either nolle, dismiss or favorably resolve the matter. I also did not see any consideration given to states that do not appoint counsel for misdemeanor charges.

Anyway, back to the topic at hand. The essence of her argument seems to be that, generally speaking, defendants with money can fire their privately retained lawyer and hire another more competent lawyer to represent them. This is a very flawed argument. Anyone who practices in a GA or JD in CT (or any other trial court in any other state) can attest to the number of times a non-indigent defendant has stood before a judge, asking for more time to hire a new lawyer and fire his current lawyer. Almost always, the defendant does not come up with the money and has to go with the lawyer that he is “unhappy” with. Just as if he were represented by a pd that he does not like. He is just as stuck with the private as he is with the pd.

Further – and I’m hoarse from repeating myself – “ineffective” lawyers come in all shapes and sizes and statuses. Private attorneys can be awful, just like public defenders. And while it is very, very difficult to “fire” your public defender, it can and does happen.

I don’t care either way about the right of self-representation. All my clients can represent themselves, if they want to. I will wish them the best of luck and move on. When called upon to represent a client, I will do everything in my power to secure a favorable outcome. But that’s just me.

I guess I don’t buy this idea that the right of self-representation is critical because of public defenders (or appointed counsel). It is critical because every person should have the ability to decide for himself or herself what he/she wants to do. Do we really need another reason?

Edit: By the way, if you want to get an idea of just how “crazy” Edwards was at the time of his trial, sift through the Joint Appendix. Let me know if you follow any of the motions filed.