WaPo: “The Question” Without The Answer

One of the perils when a flack pitches a story to the blawgosphere is that it may not be as fabulously received as they hope. This happened here when an email from a Washington Post flack arrived extolling an op-ed that addressed The Question. You know The Question:

How can you represent those people?

It’s a question that has been addressed a million times over, whether at a cocktail party, on a blawg, or in the media. It’s always been there and we’ve all heard it. Ad nauseam. It’s unclear whether the WaPo asked Abbe Smith to write about it, or Smith pitched her op-ed to WaPo, though the latter seems most likely as Smith is coming out with a book on the same subject, but somehow it was in there, and WaPo was pumping it to blawgers. Well, you asked, so I’ll answer.

Likewise, how can the lawyers representing Cleveland’s Ariel Castro fight for a man who pleaded guilty on Friday to 937 counts related to the kidnapping, imprisonment and rape of three women? And what about the attorneys for the recently acquitted but still controversial George Zimmerman? Do they really believe he is completely innocent of any wrongdoing in shooting an unarmed teen?

First, who elected you to speak for the rest of us? Second, what the hell are you thinking comparing Castro, who pleaded guilty, to Zimmerman, who was acquitted? The stink of whoring about for high profile cases about which you have nothing to offer to put a little zing in an article that’s most all about you is no way to start.

But our motivations are usually personal and sometimes difficult to articulate. I often say I was inspired by “To Kill a Mockingbird.” There is no more compelling figure than Atticus Finch defending a wrongly accused poor black man. Innocence, though, is not a chief driver for me. To the contrary, I often call my life’s work “the guilty project.” Criminal defense is, for the most part, defending the factually guilty — people who have done something wrong, though maybe not exactly what is alleged.

What do you know of “our” motivations, as you lapse into more of “all about you?” And who cares that you think of your work as “the guilty project?”  I don’t. I never would, and how dare you taint my clients with your hubris?

The balance of the op-ed bounces between myopic liberalism and overt emotionalism, little of which has anything to do with my practice or, frankly, the personal motivations and easily articulable reasons why most of the lawyers I know defend the accused. Who is Abbe Smith to think her politics or emotions are so universal as to impugn the purpose of all criminal defense lawyers?

I have been a criminal defense lawyer for more than 30 years, first as a public defender and now as a law professor running a criminal defense clinic. My clients have included [blah, blah, blah, nobody special].

A criminal defense lawyer for 30 years? Well, not exactly.  From what can be cleaned from Smith’s law school faculty narrative, she was a public defender in Philly for 8 years, from ’82 to ’90, before going academic and running a law school clinic. Much as I hate to put it in such terse terms, she’s no criminal defense lawyer. It’s fine to be an academic, and fine to run a criminal law clinic, but let’s not pretend she’s working the trenches. She’s not. She gets a paycheck, and not a PD paycheck either. A good one.

My initial reaction to reading Smith’s op-ed was two-fold, first that what she had to say didn’t comport with how criminal defense lawyers answer The Question, and second that I was disturbed that an academic, posing as a criminal defense lawyer, presumed to speak for trench lawyers. It’s not that the question isn’t asked and answered a million times over, but there have been some bad, and some truly awful, answers to The Question.

I realize this may be what every defender says: My clients, no matter what they may have done, aren’t wicked. They are damaged, deprived or in distress. Their crimes can be understood as the products of awful lives, or of being young, hot-headed and lacking in judgment, or of not having the mental wherewithal to know what they were doing. There is always a story.

No, it’s not what real criminal defense lawyers say. We don’t go there. We don’t need to rationalize what we do, find some excuse to make it emotionally palatable, as if we can only do our duty by pretending that we’re fighting for the good guy. And there are some truly wicked clients. You may not know this because you don’t actually practice criminal defense, but some are utterly evil, horrible people. And we defend them anyway.

We represent “those people” because we can always find aspects of them that represent us.

Not “we.” You. Maybe you need some emotional hook to manufacture phony empathy and to pretend you’re a heroine in your own mind, but I don’t. I’m unaware of a criminal defense lawyer who wrings her hands and ponders whether there is some aspect of a defendant’s life that makes him “worthy” of a defense. Until Smith, but then, she really isn’t one of us.

After expressing my initial reaction to Smith’s op-ed on twitter, Radley Balko made an important observation:

@ScottGreenfield Will never understand why you get so angry about this stuff. It’s good to have people talking about these things.

Radley and I have been over this ground before. Is it good enough to “have people talking about these things,” even if they’re talking nonsense? Not in my view. While raising such issues is good, that’s not good enough. Getting them right, honest, real matters too, but the well-intended (I’m being charitable) spreading of misinformation gives rise to a lot of people being misinformed while thinking they know something they don’t. As I’ve written before, we do not have the right to make people stupider, and that’s what has happened here.

But there is another aspect of this Washington Post op-ed that burns my butt. There are thousands, tens of thousands, of real criminal defense lawyers, not the kind who get University paychecks, who could have spoken to The Question, and without being so pompous and arrogant as to suggest they speak for the rest of us.

And yet the WaPo gives valuable real estate to Smith, and lends her its big soapbox, even though she is no spokesperson for criminal defense lawyers. This angers me. It angers me a lot that the tens of thousands of knowledgeable criminal defense lawyers were ignored and some academic poseur got the floor.  And then blew it with her own overwrought, self-aggrandizing answer.

Smith has a book coming out, “How Can You Represent Those People?”, in which she is co-editor with Monroe Freedman, of all people. The book is described as:

How Can You Represent Those People? is the first-ever collection of essays offering a response to the ‘Cocktail Party Question’ asked of every criminal lawyer: how do you represent guilty criminals?

Contributors are a diverse group of prominent lawyers and rising stars, each offering a different—and often very personal— perspective on the Question. Many share stories—comic and tragic, stirring and heartbreaking—about how it feels to defend people accused of crimes ranging from the ‘ordinary’ to the horrific. This fascinating collection is a must-read for anyone interested in crime, punishment, race, poverty, and the motivations of criminal lawyers.

I suspect I won’t think much of this book either, an exercise in self-aggrandizing war stories by “prominent lawyers and rising stars” (?) dolled up to fabricate a “fascinating” book of how it “feels” to defend the accused. Not to be a wet blanket, but why would anyone read this book when they can watch soap operas instead?

Why would I say this? Because the real answer is short and sweet. Criminal defense lawyers defend the accused because that’s what we do. We don’t need an excuse to do it. We just do, because if we didn’t, there would be no possibility of a system that offers any chance against the government.  A very short book indeed.

Why does this make me angry? Because it makes people stupider, even if it gives rise to discussion on a subject that needs discussing. That’s not good enough. That’s why.


19 thoughts on “WaPo: “The Question” Without The Answer

  1. Lyle Jones

    I don’t think that acknowledging that I can see aspects of myself in my clients is wrong . “That’s what we do” is an answer without an explanation. Most people (not all, but most) who ask me the question are really asking for an explanation, and not just expressing their contempt. For those, an explanation may(but not always) be in order, and I don’t see that as a bad explanation.

    I keep several snarky answers at hand for those just seeking to prove their moral compass points to a truer north.

    Of course, I freely admit that I speak for no one else, and that my experience isn’t as deep as as some.

    1. SHG Post author

      And if you don’t “see aspects” of yourself in your clients, do you refuse to represent them? Do you fail to zealously defend? Do you turn them away, or take their money but mail it in? What of the defendant everybody despised? Is he left without counsel because none of us relate to him and we don’t “feel” the passion?

      If criminal defense lawyers start parceling out their largesse based on how well we relate to your clients, how much we feel for them, then we have no business doing what we do. The real answer to The Question is that we need no explanation, we don’t seek an explanation or offer an explanation. That’s the point. We do it because it has to be done.

      This desire to rationalize your being a criminal defense lawyer will eventually bite you in the ass when you face a defendant who is just a horrible human being, someone you despise beyond belief, and yet it will be your duty to defend him. What will you do when your “passion” and compassion are tested? That’s when a criminal defense lawyer learns the real answer to the question.

      1. Lyle Jones

        Maybe I articulated that poorly? Please don’t confuse my willingness to attempt an explanation to someone who truly desires some insight into how I can defend into my requiring a specific passion or compassion to zealously take on that defense.

        I don’t think I rationalize to myself being a defense lawyer, but maybe I do. And despite the crimes that my clients have been accused of, I haven’t yet met that person that I despise beyond belief. Maybe that person is coming, maybe not. But I’m no stranger to doing my duty, and am not above re examining my positions or getting help from colleagues.

        I do what I do. But as long as I am asked the question by someone seeking insight or knowledge, I’ll at least attempt an explanation, and save the “not offering an explanation” for those few who are merely snarking.

        1. SHG Post author

          I wasn’t suggesting that you don’t or wouldn’t do your duty, but if you can’t defend someone unless you can rationalize why it meets with your personal psychological approval, then you need to think a whole lot harder about what you’re doing as a CDL.

          1. Lyle Jones

            I tend to agree with that statement. A CDL defends, whether or not they see aspects of their clients that remind them of themselves, or otherwise can rationalize why it meets their personal psychological approval. However, I will continue to offer an explanation to those that are honestly seeking such. And, I will continue to collect snarky answers to keep in my arsenal for those that deserve them.

            1. SHG Post author

              Regardless of anything I or anyone else says, your explanation is yours, and you’re entitled to it.

    1. SHG Post author

      They never prosecute innocent people. Just guilty people who beat the system and the occasional honest mistake.

  2. REvers

    I do it because it’s the only kind of law I personally find to be worthwhile to practice. My innate dislike and mistrust of authority probably contribute a lot to that, though.

  3. ExCop-LawStudent

    I can tell you why I intend to be a criminal defense lawyer after 20 years as a cop.

    It’s very simple, and predates the United States and the Constitution.

    John Adams.

    Everyone, and I mean everyone, deserves a fair trial and competent representation, whether they are guilty or not.

  4. James

    Your response wouldn’t go over well at the cocktail parties you don’t get invited to.

  5. C. N. Nevets

    If it were a question that had an answer that were palatable to people at cocktail parties, it would also be a question that no one at cocktail parties would bother asking.

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