The Defense Commitment

When a lawyer decides to join the office of a prosecutor, she’s asked to give a commitment.  It’s usually expressed in terms of years, that she’ll stay with the office for, say, a three year period before taking the courtroom experience gained and selling it on the open market.  When a lawyer decides to defend, the commitment is for life.

There have been many instances where a criminal defense lawyer who seeks a different position, usually elected, later will be attacked for his service.  It’s too easy for some mutt without anything to commend him to attack his opponent for defending murderers.  You bet.  That’s what we do. We defend murderers.  Guilty as charged.

And terrorists too, as former head of the Department of Justice’s Office of Legal Counsel, Walter Dellinger, learned to his apparent surprise.  This prompted him to write an Op-Ed in the Washington Post :


It never occurred to me on the day that Defense Department lawyer Rebecca Snyder and Lt. Cmdr. William Kuebler of the Navy appeared in my law firm’s offices to ask for our assistance in carrying out their duties as military defense lawyers that the young lawyer who worked with me on that matter would be publicly attacked for having done so. And yet this week that lawyer and eight other Justice Department attorneys have been attacked in a video released by a group called Keep America Safe (whose board members include William Kristol and Elizabeth Cheney) for having provided legal assistance to detainees before joining the department. The video questions their loyalty to the United States, asking: “DOJ: Department of Jihad?” and “Who are these government officials? . . . Whose values do they share?”
The Department of Jihad.  Catchy, right?  No, actually it’s awfully juvenile and silly.  It’s the sort of thing that comes from the people who wear tinfoil on their heads to keep the gamma rays out.  Does this describe William Kristol, the conservative in residence at the New York Times, and Liz Cheney, the apple of Dick’s eye?  I would like to believe they lent their name to the board, but don’t really show up for meetings, because if they do, they should be ashamed of allowing such a silly phrase.  They could have done better.

Ashby Jones at the WSJ Law Blog asks whether Department of Jihad goes too far.  Orin Kerr at Volokh Conspiracy thinks this is the sort of attack that Senator Joe McCarthy would have used, according to Ashby though I can’t find any post there that says this.  Jonathon Adler at VC, however, noted Dellinger’s op-ed calling the scurrilous attack “shameful”.  And it is.  And it should be.  But…

There are two sides in our system, the prosecution and defense.  While those of us who practice criminal defense, and those Americans who appreciate that such a thing as the defense exists, extol the virtues of our side of the equation, this op-ed and the reactions to it serve as a painful reminder that the more “official” voices of the system barely tolerate our existence.  We are, at best, a necessary evil. 

We are not welcome in their clubs.  Our voices are not sought on issues of substance.  When a new regime comes to power in our quadrennial peaceful coup, we are not invited to join their ranks.  Indeed, when I once tried to offer my services during a fit of naive optimism to a new administration who claimed a sincere interest in justice, I was privately informed that, talking points aside, criminal defense lawyers were not wanted.  We are the lepers of the legal system.

In Dellinger’s case, the epiphany came when his colleague at that radical law firm, O’Melveny & Myers, slummed by aiding the defense of Gitmo detainees.  Honest work, but not what fills the firm’s coffers.  For Biglaw, defense is where they do pro bono, practice up on seldom used skills and feel as if they are doing something more useful than squabbling over how many options the new CEO will get with his golden parachute.  It’s the sort of thing they can point to when others complain that they’re just vultures, sucking money out of large corporations to the detriment of mankind. 

That they provide these types of services pro bono is a good thing, and Biglaw has done some great work on behalf of the poor and downtrodden, often in death penalty cases where the right to counsel had long since expired and solo lawyers couldn’t possibly dedicate their energies without guaranteeing the starvation of their children.  Many have benefited from these efforts, and that’s great.

But they’re just dabblers.  This is something they do between mergers and acquisitions, not in lieu of it.  You will never find anyone at Biglaw where black sneakers and hoping that no one notices they aren’t really shoes.  They wear suit jackets with working cuff buttons, leaving the bottom one unbuttoned so everyone will know.  And they aren’t prepared to be tainted permanently by the pro bono hours spent in the service of criminals.

We’ve been living like this forever, Walter.  We do honest work.  We are as much a part of the system as any prosecutor.  Our contribution is vital, for without us there can be no system.  Contrary to the attacks of the ignorant and angry, we do not support crime or terror.  We support the Constitution.  The NACDL calls us liberty’s last champions.  You aren’t against liberty, are you?

Now that someone as mainstream as Walter Dellinger has come to the realization that we are not the slimy defenders of evil that almost everyone in government, and then subsequently in partnership at O’Melveny & Myers, believes us to be, maybe the discussion should go a bit farther than the Al Qaeda 8 and ask why criminal defense lawyers are seen as pariahs by the official people of the bar and government.  Maybe we have something to offer government, have the same interests and understanding of a nation run well, run safely, run with honor toward both the law and rights.

Walter Dellinger opened the door to a discussion.  Let’s make the discussion real and include all who have been tainted by their service in our legal system, and ask why criminal defense lawyers should be perpetually excluded from positions of power or authority because we’re the bad boys of the criminal justice system. 

10 comments on “The Defense Commitment

  1. Lee

    Eh, I don’t want to be in their clubs. A desire for power and authority in a CDL is a very suspicious character trait.

  2. SHG

    Heh. Don’t sweat it. It’s not happening anyway.  It seemed best to phrase it in terms that official people would understand.  If it was about public service and helping others, it would either confuse them or confirm their worst fears about us.

  3. walter dellinger

    Your point is well taken, but badly misplaced with respect to O’Melveny & Myers. We have a very substantial criminal defense practice, both paid and pro bono, both high profile (Martha Stewart and Jeff Skilling) and mid-level (a major WR Grace executive criminal trial; accountants accused of medicare fraud) and ordinary — drug cases, gun cases. We were roundly condemned for the thousands of hours that our criminal defense lawyers contributed pro bono to the defense of “traitor” Wen Ho Lee (who, of course, was innocent). We do very substantial amounts of work for NACDL. There are 10 partners that I have worked with closely who have I would guess spent more than a total of 10,000 hours on criminal cases in the past two years alone. I have argued three major criminal appeals, myself. So, good point, wrong example.

  4. SHG

    I appreciate your stopping by, as well as your point.  As you obviously recognize, neither Martha Stewart nor Jeffrey Skilling are representative of typical criminal defendants.  As far as the O’Melveny & Myers practice in ordinary drug and gun cases, this comes as a bit of news.  I was unaware that you had a street crime practice.  A quick look at OM&M’s practice areas includes “White Collar Defense and Corporate Investigations.”  I see no mention of drugs or guns.  As for racking up 10,000 hours, that’s a dubious distinction. I doubt most criminal lawyers would know or care how many hours they do, given that most of us work on flat fees.  Our drug and gun clients aren’t great about paying monthly bills.

    Clearly, OM&M, as well as other Biglaw firms, do a great deal of pro bono, but that was part of my point.  It’s not to say that your firm doesn’t do some important work; it is to say that it’s not quite what trench lawyers do, and for which we are routinely vilified..  We routinely handle the nasty alongside whatever else we’re fortunate to do.  I have a very hard time imagining the wife of one of our clients trotting into the OM&M offices asking if you’ve got a few minutes to handle the detention hearing.  If you would like to find out more, you’re welcome to do some pro bono alongside me whenever you’re available. 

  5. Dan

    I might put it this way- do some criminal work as something in addition to your bread and butter and bar associations, law school alumni associations, etc., will honor you for your service and commitment to justice. Do it for a living, forget the honors and citations, be prepared to answer lots questions from polite society, as well as your fellow lawyers, about how you can sleep at night.

  6. Peter Ramins

    Five colonists killed by a number of Redcoats, and a future PotUS defended them.

    He wouldn’t have been elected in today’s day and age, but honestly I think you’d be hard pressed to get the first two hundred and fifty years’ worth of presidents elected next time around, when it comes down to it.

  7. Colin Samuels

    One minor point of clarification: I believe that William Kristol’s engagement as “the conservative in residence at the New York Times” ended a number of months back (Ross Douthat is their token righty now). Notwithstanding, one would hope that had it not ended already, his participation in this despicable episode would terminate it.

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