To err is human.  Lawyers are human.  Lawyers err.  Or so you would think, but getting a criminal defense lawyer to admit that he or she might have been less than perfect can be a difficult thing.

I’m in the middle of two appeals at the moment.  In one, the defendant decided mere moments after the guilty verdict came in that the fault lied with his trial counsel.  This is hardly uncommon.  Many defendants believe that if they pay a lawyer, and he does the job he’s paid to do, the client must therefore win.  It never sinks in that there are a few other things to factor into the equation, like the facts and the law.

On the other hand, it may well be that the lawyer could have done better.  Whether a failing constitutes ineffective assistance is another matter, though the minimal level of representation is so low as to reduce ineffective assistance of counsel to a fare and mockery of justice.

In the case I’m working on, the client had retained a very well-known and exceptionally good attorney to try his case.  Unfortunately, that’s not the attorney who showed up.  In his place was his son, a younger lawyer who dad wanted to set up to take over his practice one day soon.  Sonny lawyer was pretty good, but not dad.  The younger had an inexplicable attitude of self-importance that would have suited the father, but the son had yet to earn.  Still, he did a yeoman’s job, far above that of ineffective assistance.  Just not good enough to pull the chestnuts out of the fire.

So based on the client’s insistence, I had a talk with the son about the client’s issue.  To be honest, I was not of the view that the lawyer had made a mistake, but felt compelled to discuss it with the trial lawyer anyway.  The reaction was, to be blunt, quite funny.  The lawyer son immediately, utterly and unequivocally rejected the idea that he could conceivably have made a mistake.  Nope, not possible.  Couldn’t happen.  This young lawyer doesn’t err, so he told me.

In contrast, the other case involved a well-known, experienced lawyer.  While the client didn’t suggest that the lawyer was at fault, I considered the possibility given the complexity of the case.  When I ran into the lawyer and queried, his response was, “Well, if there’s anything I did that you can make an argument out of, go for it.  I’d be happy to sign an affidavit.”

Juxtapose those reactions.  The latter, from the experienced lawyer, demonstrated the strength of his belief that despite his many years of successful practice, he was always capable of error and that he was desirous of doing whatever was needed to help his client, even if it meant putting himself in the line of fire.  The former lacked both the recognition, as well as the self-esteem, necessary to admit that he was not perfect.  His fragile ego prevented him from helping his client if it meant the slightest taint to his sainthood.

There are many more young, or inexperienced, or fragile ego’d lawyers than there are lawyers who are secure enough in their skills, and certain enough in their focus to help their clients, that they will happily aid an ineffective assistance argument if at all possible.

Personally, I’ve done so a number of times.  In one instance, I made the motion against myself, where following trial I realized that I had made a serious preservation mistake as a by-product of a tactical decision.  I told the judge that I had been ineffective; I screwed up.  I sought a new trial.  While the motion was denied, the Court’s ruling allowed the defendant to overcome the preservation issue and thereby vitiate my mistake.

Another example comes from a recent appeal I did.  During oral argument, one of the judges tried to shoot down my argument by noting that, as strong as my rationale might be, the jury rejected my client’s testimony as to his innocence as proven by the guilty verdict.  I disagreed, I told the judge.  The verdict was “hardly a demonstration that the jury didn’t believe my client, but was a product of poor defense-lawyers.”  The entire panel groaned, but within a month I received the decision.  Unanimously reversed, and indictment dismissed.  Not too shabby.

The point is simple.  We can afford to take a little heat, especially if we deserve it.  And the truth is that we are human, and sometimes we make mistakes.  If so, even if only arguably so, and it will serve to help your client, why would you possibly fight it?  To err is human.  You’ll get over it.

Reading Capital Defense Weekly this morning, I was struck by the story of Troy Davis.  I don’t profess to know enough about the case to have an opinion, but the opening line from the Amnesty International story was sufficient to peak my interest:

Restrictions on Federal appeals have prevented Troy Anthony Davis from having a hearing in federal court on the reliability of the witness testimony used against him, despite the fact that most of the witnesses have since recanted, many alleging they were pressured or coerced by police.

When did courts forget that the bottom line is innocence?  While Congress and Legislatures spend their days coming up with new roadblocks to deny access to courts, elevating the bureaucratic desire to expediency over the fundamental need for justice (you remember justice, the reason why we have this whole court-thingy to begin with?),  it seems that the grocery clerks running things have decided that it’s fine to put innocent people to death, or prison, as long as all the “t”s are crossed and “i”s are dotted. 

Prosecutors and the victim’s family have argued that Davis received a fair trial and has had plenty of appeals, all of which failed.

The naysayers will answer that if we let one defendant skirt the rules, then the courts will be flooded with convicted defendants desperately trying to find ways to challenge their convictions.  The courts will be overwhelmed, and unable to sentence new defendants to death do their jobs.  But isn’t adjudicating their job?  Isn’t it their job to hear these challenges, like recanted testimony resulting from police coercion?  Time limits are great, but they are not more important than people’s lives.  Or maybe that’s just me.

I am not so foolish, or knee-jerk, to accept the premise that every claim of impropriety is true.  Indeed, I’ve heard enough bull in my years as a lawyer to give me a very healthy dose of cynicism, and I have often told defendants who have come to me with some silly cock and bull story about how they were denied their “dooo process” that they ought to spend more time thinking about it before they do the crime rather than after.  No, I’m no pushover.

But the flip side is that there are people who have suffered an injustice, and the idea of an innocent person being put to death is impossible for any thinking person to accept.  It is simply unacceptable, just as it is unacceptable for some ill person to be simply left to die because they have no insurance.  Of course, in our society, they would be more likely to be run over by a new Mercedes SUV in a rush then helped to the hospital.

I applaud those lawyers who do not give up the fight to save a person they believe to be innocent, no matter what the obstacles or how unpopular the cause.  I just wanted to acknowledge your efforts here, and to remind those grocery clerks who keep their vigilant eye on the calender that putting an innocent person to death is more important than a habeas filed a day late.

Following up on my sentence primer, Mark Bennett (of the Texas Bennetts) wrote about the federal counterpart, 18 U.S.C. 3552(a)(2).  He tossed in this little tidbit which, if you close your eyes, you can hear him saying with sarcasm dripping off that Texas drawl,

so nobody ever goes to prison in New York for any longer than is necessary to rehabilitate him, to make sure he doesn’t recidivate [is that a word?], and to deter others. Isn’t that nice?
 
Ah, if it were only so.  But of course, that’s not reality.  The imposition of harsh punishment is just as prevalent in New York as elsewhere.  Why?  Because the law is constructed with a million nice theories, but plays out with a very different reality.  And to put it in context, under the federal criteria “the sentence should be “sufficient, but not greater than necessary” to satisfy those purposes. Id. §3553(a).”  Tell that to anyone sentenced under the guidelines.  It’s like a store that advertises “personal service,” but only sells “one size fits all.”

The point is that the law we live with isn’t the law we learned about in law school.  It is a rough version, more often falling into Gideon’s “going rate” approach than one tailored to suit the reasons that justify its existence. So what do we, as advocates, do about it?

One of the traps that young lawyers fall into almost immediately is trying to become part of the gang.  We all want to fit in, especially when we are just starting out and think we stick out like a sore thumb.  So we emulate those around us who fit in.  We assume their jargon and approach.  All the little things we are never taught about in school we learn from watching more experienced lawyers.  We want judges to accept us, maybe even like us and say a kind word to us, so we assimilate.  It makes us feel like we’re real lawyers, and not kid pretenders.

While this is all understandable from a human perspective, since everyone wants to be one of the boys (or girls), it starts young lawyers down a path from which few escape.  We adopt that “one size fits all” mentality.  We accept the “going rate” and start formulating our own ideas of right and wrong, good and bad, according to what is presented as the norm. 

Criminal defense lawyers begin to learn some bad habits that many never shed.  In New York, arraignments are performed with a mantra that uses Penal Law numbers and phrases that are totally incomprehensible to clients.  Ask a client what happened after arraignment, and he will almost always be totally clueless.  How is a client to make decisions about his life when he’s denied the ability to understand what his lawyer is doing?  But he’s not denied by a mean judge or an overbearing prosecutor.  He’s denied by his own lawyer.

Motion practice is one of the most potent weapons in the defense arsenal.  But so many lawyers grind out pro forma motions (occasionally forgetting to change the name in the body from some earlier incarnation) that they are shooting blanks.  One of the favorite requests amongst members of the New York State criminal bar association is for a generic motion.  Not only does this reflect the “one size fits all” mentality that pervades the criminal defense bar, but the lack of personal effort and responsibility, both for their client and themselves.  Nothing personal, guys, but I wouldn’t rely on anyone else’s motion for anything.  Ever.  I do my own, thank you, and every one is sui generis.

The upshot of this all too common practice is that judges routinely deal with motions like a joke.  You’ve been given a month to prepare them, and then the judge will read them and rule from the bench in 30 seconds.  There’s no expectation of anything in there beyond the norm, and they are so inured to routine efforts that they can’t be bothered to give them an extra second of needless thought.  I find myself outraged when I see this happening, and I have frequently been heard to admonish a judge, “I spent 10 hours researching and preparing my motions, and I would appreciate your spending 10 minutes to read them before ruling.”

One of my running themes in this blawg is treating each defendant as an individual.  It’s a nice thought, but many who read this will respond, “that’s great when you’re not a public defender with a 250 defendant caseload.”  I concede this point readily.  There is no way that a person carrying such a ridiculously high caseload can provide the level of attention that each defendant deserves.  But what of those criminal defense lawyers who have the time, but not the will?  The PD does the best he or she can given the constraints under which they labor.  And I have seen them in pain for their inability to provide the level of representation they want.  This only serves to make those lawyers who fail to put in the effort though they have no excuse that much worse.

No, Mark.  New York is no utopia, for sentencing or anything else.  We’ve got some extraordinary lawyers here, but then you have some in Texas too.  But we’ve got the hacks who don’t care, or more accurately, have lost their way down a path of fitting in, the norm, the routine.  No one will ever chastise them for doing a yeoman’s job, as expectations are so low and the courts are just as guilty of dispensing quick and dirty justice to keep those cases moving along through the system.  They are all happy to be cogs in the wheels of justice, so long as no one looks too hard at what “justice” has become.

If I can accomplish anything by writing these posts, it would be to remind these lawyers of the passion they had in law school when they studied these wonderful theories about the law.  Perhaps now that they no longer feel the need to be just like everyone else, they can break away from the path of least resistance and go down the road less traveled.

This is one of those bizarre tales that you just couldn’t make up if you had to.  According to Newsday, David Gross, ex-judge of the Nassau County District Court, has plead guilty to his participation in money laundering conspiracy in the Eastern District of New York.

The conspiracy arose from then-judge Gross making a plan with a wiseguy and a FBI undercover to move stolen diamonds and then launder the cash through a restaurant.  I know, I had the same reaction.  It was such a ridiculous story that I couldn’t believe that anybody, no less a judge, would get involved.  And yet this plea ends that discussion.

I can’t say that I knew Judge Gross well, but I did have a nice dinner with him.  I was giving a lecture on the United States Sentencing Guidelines, and the impact of Booker, to the Nassau County Criminal Courts Association.  It was really a very lovely evening, at nice little tavern with a lovely meal to follow.  After I had finished my talk, I sat at a table and was introduced to Judge Gross.  He was a regular guy, having made his way up the ranks on the defense side of the table.

I asked my good buddy, Dick Barbuto, what kind of a judge he was.  He told me that David Gross wasn’t bad at all.  In case you think otherwise, defense lawyers often make notoriously harsh judges, since they think they’ve heard every lie and scam every conceived.  Once they put on a robe, they swear they will never let a defendant (or their lawyer) sneak one past them again.  Plus, they have to prove that they’re not one of those defendant-loving pushovers, so they tend to go too far the other way.

I chatted with Judge Gross during dinner.  I found him intelligent, witty and charming.  He was a regular guy, not the type who tries to rub your nose in his robe.  We talked plain and I left thinking, he’s pretty sharp.  Bear in mind, we’re talking Nassau County, New York.  Pretty sharp is high praise indeed.  The primary qualification for getting elected in Nassau County is how many signs you can nail to a telephone pole in 6 weeks.

And then came the revelation about Judge Gross getting busted.  Holy Cow!  And not even for honest graft (a la Plunkitt), but moving stolen diamonds.  C’mon…that’s just so far out that it sounded like it couldn’t be possible.  I was waiting for the next story, where they told about a judge who got punk’d.  But the second story never came.  Until now.

I cannot begin to fathom what happened to David Gross.  I can’t imagine what he was thinking, what would have pushed him to do this.  I liked him and, whatever demons drove him to embroil himself in this conspiracy, I feel bad for him.  But more than that, I am embarrassed by what he did.  These days, there aren’t too many judges that come from the ranks of the defense.  Of these, there aren’t too many who you would want to eat with, no less talk to unless you’re paid to do so.  And finally, there aren’t many who you would want to pass sentence on your client.  David Gross had been a rare one.  Apparently, even more rare than I knew.

Now David Gross has made himself into a pathetic joke.  He has made himself the poster child of why defense lawyers can’t be handed a public trust.  He has hurt us.  He will be punished for the crime he committed.  We will all be punished for the crime he committed.  What a shame.  What a disgrace.

Criminal defense lawyers, like anyone else who toils day after day in the trenches, have a tendency to take on certain attributes of the system.  We call our clients “the defendant,” and we use our legalistic jingo to shortcut our way through the day’s work.  Oh boy.

Consider, if you will, how this impacts a judge who is about to impose sentence.  The judge has before her the defendant’s rap sheet, the indictment, the predicate felony statement and the presentence report prepared by probation.  If the defendant’s name was written in the caption, the judge wouldn’t even know who he was.  A nice, personal system, right?  And yet defense lawyers are right there with the court, doing absolutely nothing to remind the judge that there’s a real, live human being in the well, with a family that loves him and depends on him. Oh boy.

It is our foremost duty at sentence to turn those official sheets of paper into a living, breathing human being.  Never, ever call your client “the defendant.”  He has a name.  Use it.  The court is not sentencing “the defendant,” but John Smith.  I prefer to use the full name, as the first name alone is too familiar, while calling my client Mr. Smith sounds too formal, deferential and even a tad pompous.  Moreover, I want the judge to see my client as a complete person, and the formal approach maintains a level of detachment that allows the judge to ignore the existence of a person behind the Mister.

Learn something about your client.  We fall into the trap of seeing a crime rather than a person.  We talk about the Sale 2 case, as if all Sale 2 cases are the same and all defendants charged with Sale 2 are in the same boat.  This constitutes a failure of representation.  We represent people, not crimes.  Get that bone out of your head that makes you categorize clients by their crime. 

Instead, spend some time talking to your client.  Learn about their family, their kids, their education, their life before they met you.  You can’t convince the judge to see them as human beings if you don’t.  And you will likely be surprised to learn that there’s life behind those eyes.  They didn’t grow up wanting to be a gangster.  They didn’t go to Wharton so that someday they could raid the pension plan.  But you won’t know this if you don’t ask.

Next, you need to communicate your message to the Court.  There is no rule of life that says that your sentencing argument is limited to 3 minutes.  As with any argument, you need to hold the judge’s attention and bring your message home before the judge dozes off, but that’s a matter of style and delivery and beyond the scope of a blawg post. 

The point here is that your client is a human being and the court needs to know that they are sentencing a real person.  There may be little children whose lives will be forever changed by the words the judge is about to speak.  There may be a harsh life, abuse and misery, that produced the person whose failure to adhere to the rules that apply so nicely in the suburbs is about to be judged.  Humanize your client.  If you don’t, you give the judge a free hand to sentence a piece of paper and a crime.  It’s much easier to lock a Sale 2 away forever than to leave John Smith’s 16 month old son, Harold, without a father.

Since 97% of all criminal prosecutions result in conviction, sentencing is a matter of universal concern to all practitioners of criminal defense law.  Yet many have never given sufficient thought to what constitutes the legitimate purposes of sentencing.  The impetus for this discussion comes from Mark Bennett’s discussion.  As he has done amazing work with higher order issues, I realized that some of the basics remain untouched.

Before turning to the criteria, consider this.  In New York, with indeterminate sentencing, how does a judge arrive at a sentence of 22 years?  Why not 19 years, 7 months?  Frankly, the numbers are relatively loopy.  When the Legislature provides a span of 15 to 25 years at the bottom of the sentence for murder, why do judges routinely ignore the 15 to 20 span, and start at 20 to 25 to life?  On the lower end of the spectrum,

I recall a judge (now on the Appellate Division, First Department) who invariably refused to consider a sentence of time served for marijuana because “You know I don’t do that,” even though the Legislature determined that to be a proper sentence.  Since when do judges get to reject viable sentences because, well, just because?

And finally, consider cases where the defendant is a predicate felon who is convicted of a felony that, as an element, includes a prior conviction to elevate its degree from misdemeanor.  The defendant is thus twice punished for his prior.  This would be double counting under the guidelines, but is part of the sentencing scheme in New York because the Legislature neglected to recognize how the various parts of the law impact each other.

The following discussion relates solely to state criminal law, since the feds use the “advisory” guidelines, which may be mandated or advisory, according to which day of the week it is.  But the Guidelines present entirely different issues, and since the vast majority of defendants are sentenced under state law, this post intends to limit itself to state sentencing.

In order to structure an argument that goes beyond some judge’s visceral reaction to your client or the crime, which generally results in a sentence that defies rational explanation, I offer the following.  There are 4, and only 4, legitimate purposes of sentencing:  Specific Deterrence, General Deterrence, Rehabilitation and Incapacitation. 
Hey, wait a minute.  Didn’t you forget Retribution?  Nope.  Retribution, vengeance, whatever you want to call it, is not a purpose of sentencing.  We do not imprison people for the sheer joy of hurting them.  The “eye for an eye” theory of punishment has no place in our criminal justice system.  It’s conceptual basis is that of a rational system designed to provide a positive outcome rather than simply a way to vent one’s anger toward another.  Victims of crime will be outraged by this, but the State does not enforce its laws to assuage the victims, but rather to protect its citizens.

Specific Deterrence:  This factor applies to the particular defendant, imposing a sentence that serves to deter the specific individual from engaging in further criminal activity.  Simply put, how much time is enough to persuade the defendant that he does not want to commit another crime and go back to prison.

General Deterrence:  This is the Paris Hilton factor.  How severe a punishment is necessary to convey the message to people other than the specific defendant that they don’t want to commit this crime, lest they suffer the same consequences.  This factor varies with the degree to which the public, or the target audience, is aware of the case, as a larger audience will result in a broader message.  On the other hand, consider some of the white collar defendants who are convicted of stealing millions and millions of dollars, and end up with a few years in prison.  Would you give up 5 years of your life for $20 million?  Plenty of people do 5 years for a whole let less.  On the flip side, not many of us have an opportunity to get our hands on $20 million under any circumstances, so the message has its own inherent limitations.

Rehabilitation:  This factor applies more appropriately to those defendants who are driven to crime by an underlying cause that can be ameliorated through the imposition of some sort of services, be they drug and/or alcohol rehab, mental health, medical or educational.  So many people in prison are there for lack of an educational alternative, coupled with the cultural (i.e., drug) influences that permeate certain strata of society.  Before tears well up in your eyes, bear in mind that this factor is often illusory, since these defendants get tossed back out on the street without meaningful support when their sentence is over, putting them right back into the situation that gave rise to their resort to crime as way of life.  While we pay a lot of lip service to rehabilitation, we do a really lousy job of it, even though it is potentially the most meaningful route out of recidivism.

Incapacitation:  Some defendants present a threat to society or particular individuals in society.  These defendants are properly removed from society for the purpose of safety and protection of others.  Along the lines of “your rights stop at the tip of my nose,” there is always an underlying legitimate purpose of protecting others from defendants who are violent.

By arguing sentencing in light of these four legitimate sentencing goals, we are able to arrive at a rational and justifiable period of time to place a person in prison, or impose some lesser sentence as may be appropriate under the given circumstances.  What we remove from the mix is the sentence imposed out of anger and outrage, impervious to rational explanation and wholly subjective in nature.  Sentencing is not a judges’ chance to be the avenging angle, or pander to the collective outrage of the community.  The fact that legislatures have provided for a span of sentencing options does not mean that courts are given a free hand to impose whatever sentence strikes them as “right” or consistent with a judges’ personal sense of “justice”. 

Bear in mind, this is still far from a scientific method of determining sentence, and leaves a great deal of discretion to judges to fashion a sentence.  Sometimes a sentence may still, rationally, fall in one of those strange places like 21 years in order to distinguish between co-defendants, or between one defendant and a sentence recently imposed on another in a well known case, to recognize differences.  It may be used as an incentive or disincentive under particular circumstances.  But at least it will begin to bear some sort of rational connection to the defendant, and case, and the legitimate purposes given the state to put people in prison. 

It’s a start, and it is far better then the blind, thrashing about for something nice to say about a defendant that usually characterized sentencing in state court.

Here’s a bizarre one.  The New York Times reports of a Nevada couple who were so busy playing Dungeons and Dragons that their two children, ages 11 and 22 months, were near starvation.  The couple was charged with neglect (and represented by a public defender, apparently unable to use their D&D credits to retain counsel).

Is this just another new, high tech excuse for child neglect?  Ann Althouse thinks so.  While it is easy to simply toss all the evil people into the same hole, my take is that this reflects a somewhat different issue.

Granted, the D&D addiction excuse is a novel twist, substituting computer games for and old staple like heroin, but that’s the lawyer talking, not the defendants.  My approach is a bit more holistic.  The fact that the couple was so enthralled with D&D, rather than heroin, is a more significant part of the mix than may be realized at first blush.  These are children, playing children’s games, having children.

Stunted adolescence (or basic immaturity) is an epidemic.  Some never leave home.  Some can’t get their hands out of Mommy or Daddy’s wallet.  Some can’t figure out that there comes a time when they put away their toys.  This couple had two babies.  How did they manage to find the time?  Well, sex is another adolescence game.  Pregnancy as well.  The bodies may be ready (owing to the prolonged period of time needed for humans to mutate and rid themselves of unnecessary body parts), but the minds are ill-prepared. 

Anyone who has tried to hire a young lawyer should have a pretty good feel for the fact that it takes kids a lot longer to grow up these days.  And these are the mature kids, we’re talking about.  In all likelihood, the parents of there perpetual teeny-boppers aren’t all that mature either.  Obviously, they didn’t have much impact on the “making babies” part of their life.

So this is what comes of children having children.  That is the real defense.  And unfortunately, the verdict reached by two starving children is guilty.   

Gideon at A Public Defender brings us a New York Times report of a study about the effectiveness and cost of federal defenders versus CJA panel attorneys.  This is a very touchy subject for lawyers.

For anyone unfamiliar with the players, here’s the cast of characters:  Federal defenders are the legal aid of our federal criminal courts.  They are salaried attorneys who defend the indigent on a federal level.  CJA panel attorneys are, theoretically, private criminal defense attorneys who join a panel of attorneys to be assigned to represent indigent defendants for a fixed hourly fee to fill in the gaps when there are multiple defendants in a case, thereby creating a conflict of interest that would prevent federal defenders from representing more than one defendant in a case.  Since many federal cases are conspiracies, it is common that there are multiple defendants in a case, and federal defenders can only represent one.  Therefore, CJA lawyers pick up the rest of the defendants who are unable to afford (or unwilling to pay) private counsel.

Federal defenders are dedicated, trained attorneys who spend their days toiling in the well of District Court’s across the nation.  They choose to be there, some hoping to gain federal trial experience that can later be parlayed into a lucrative private practice, and some truly dedicated to giving meaning to Gideon v. Wainwright.

CJA lawyers, on the other hand, apply to be on the panel and agree to accept an hourly fee in compensation for their services.  The fees vary somewhat from district to district, and are further restricted by caps.  The attorneys must submit a voucher to the court for approval, lest some wage claim more time than he should).  These lawyers, together with their state counterparts (and they are usually one and the same group), are also referred to as “assigned counsel.”

The concept was that private lawyers with a few hours to kill, and for whom the promise of meaningful representation to the indigent held meaning, would come forward to fill in the gap in criminal defense of the poor.  The practice…well, it’s not always so clear.  Before treading further, let me add that many CJA lawyers are exceptionally qualified and provide outstanding representation.  What follows here is a gross generalization, and by no means is intended to tar all with one stroke.  The good ones know who they are, and they know I’m not talking about them.  Moreover, the good ones aren’t too thrilled to be sitting next to the slackers either.

Initially, the nature of the beast is not necessarily what federal courts might expect.  Private criminal defense attorneys represent people accused of crimes.  Sometimes, those people show up in federal courts, but more often in state and even local courts.  They go where their clients take them, because that’s the nature of the business. 

This gives rise to two problems.  First, their experienced tends to be more diffused.  They need to work in various courts with differing laws, procedures, cultures and attitudes.  Shifting between these courts is not always easy.  Moreover, they can go for prolonged periods of time without getting a case in a particular court, so that they may well have experience there, and experience in general, they are not a regular, knowing the quirks and idiosynchracies of the locals.  This can make even an experienced lawyer feel like an outsider.

The scheme behind CJA was that private lawyers would have busy private practices, making the big bucks in their regular work and supplementing their time (in those free hours) with a good deed to fulfill their goal of helping the poor.  It hasn’t always worked quite that way.  For a lot of lawyers trying to break into criminal defense, they realize quickly that hanging out a shingle doesn’t guarantee that wealthy criminal defendants will come flocking to their door.  Eight hours of free time a day is enough to depress anyone.  And so they join the panel.

The problem is that panel work, usually on both the state (what’s called 18b in New York) and federal level, becomes their bread and butter.  Indeed, for many, it is there entire livelihood.  Without the panel, they would be playing computer solitaire all day long.  And so panel work is their practice.  And the expectation of panel work is critical to their daily existence.

Now this was never the way it was planned.  If these lawyers are entirely dependent on panel work for a living, they are effectively the same as federal defenders, but for a few significant problems.  First, they don’t get the level of training and support.  Second, they have no one supervising them to make sure that they are doing their job well and (ahem) billing truthfully.

As to the billing issue, I am not suggesting that there is a glut of lying, cheating lawyers overbilling CJA.  While there have been some scandals, the courts have done an admirable job of keeping the lid on things.  But there is a bit of fudging going on from time to time, often in response to the perception of inadequate hourly rates and ridiculously low caps.  Sometimes, an hour from one case gets put on a voucher in another.  Hey, who can scrutinize vouchers that closely?  And they really did the work, so no harm, no foul, right?

Personally, I haven’t done panel work since 1983.  If I take on an indigent case, I do so pro bono.  Filling out vouchers is just not my thing.  But I’ve been paying close attention to these problems for years, largely because they have been on front burner of criminal defense bar associations as a result of fee issues.  The screaming about low fees and low caps is a by product of attorneys becoming way too dependent on panel work to sustain their practices, and their families’ desire to eat.  Every day.

There’s nothing about the study that I find surprising.  But there’s little about the study that I find helpful, either.  It’s a lousy system that ill serves everyone.  But I do feel strongly that the system has long been too dependent on panel lawyers, and even more strongly that panel lawyers have been too dependent on the system.  This is all about indigent defense, not full employment for lawyers. 

If lawyers want to call themselves private, then their focus should be honing their skills so that retained clients want to hire them.  There is no god-given right to run a private practice financed by the state or federal government.  And there is definitely no right to expect a steady flow of revenue from the panels, sufficient to make the lease payments on that Mercedes.  (I’m sure I’ll here from someone who will completely miss the point of this hyperbolic example by informing me that they drive a Honda.  Keep it to yourself.  That is NOT the point.) 

Like so many things in life, the viability of this system depends in large measure on the good will and integrity of its participants.  To a large measure, the criminal defense bar fulfills its promise to indigent defendants day in and day out.  But there remain too many who think that the only reason poor people get arrested is so they can get an assignment.  This was never the idea.

The Consumerist brings us a story about a mother and child booted off a Continental flight because the 2 year old kept saying “bye, bye plane” and wouldn’t stop upon demand of the flight attendant.  Not screaming or crying, just speaking.  The flight attendant first offered to drug the child with a “baby Benadryl,” but when Mom rejected the idea that her son, Garron, be drugged to please the flight attendant, the plane returned to the gate to eliminate a “passenger disturbance.”  Of course, all of this happened following an 11 hour delay.

The incident itself is disturbing, on a number of levels.  Did the words of this child suggest “terrorism”, showing yet another use of our war on terror to control an annoying population?  Or was it nothing more than a kid who was heard as well as seen that just pissed off an official woman?  Hard to say which from the story, but this is just the beginning of the story.

One of the most important aspects of the Consumerist is their comments following the story.  What it reveals about people is like voir dire on steroids (or sometimes juror Benadryl).  You would think that of the 214 comments (as of this writing), there would be expressions of outrage at this treatment of a trial, and particularly at the suggestion that drugging children is the corporate answer to child-rearing.  No, no.  Not at all.

The vast majority of comments applaud the Continental move.  No, applaud is not a strong enough word.  They cheer on Continental for finally doing something to stop this bain of all fliers’ existence: children.  With a level of anger and revulsion, person after person spews their personal hatred toward a young human being who may possibly disturb them.  Aye, there’s the rub.  They hate the fact that their comfort, quiet and solitude is disturbed.  And they demand that extreme action be taken against anything, and anyone, who might conceivable do so.

Consider the implications of this selfishness toward anyone who brings even the mildest discomfort to their lives.  Drug them.  Throw them off the plane.  Ban them from their lives!  They truly couldn’t care less what happens to a child, as long as the end result is that their personal comfort prevails. 

Before you think otherwise, I fly and recognize that kids (and more than a few adults) can be annoying on planes.  I have my issues sitting next to a crying baby.  Then again, I have my issues sitting next to a morbidly obese adult, who spills over into my space.  But would I have them tossed from the plane.  No, that’s way over the line.  But for the slightest measure of self-control, I sense that many of the Consumerist commenters would have supported tossing the kids from the plane in flight if it meant that they could take a nap or get an open seat next to them.

This is not only crazy, but quite scary.  These are our jurors.  As we do our Clarence Darrow thing, and offer a heartfelt plea for justice and sanity in an insane world, consider that the people we are speaking to would be just as inclined to put our minor drug dealer to death as convict him if it would bring an iota of greater comfort to their personal lives. 

While it is impossible to pinpoint the demographics, the following appears pretty clear:

1.  They are computer users.
2.  They read blogs.
3.  They are inclined to register to post comments on blogs.
4.  They are inclined to post comments on blogs.
5.  They are employed.
6.  They are employed in positions that require airplane travel.
7.  They are employed in white collar positions.
8.  They are high school graduates.
9.  They are college graduates.
10.  They look like regular people.

From the writing and tone, it would appear that these are largely males in lower to middle range corporate positions.  And they are angry and selfish, tired of putting up with things that bother them and perfectly willing to allow, if not cause, others to suffer for their convenience. 

The fact that these potential jurors, and otherwise regular guys, are so happy to have this happen means a lot for those of us who have to guess at who will resort to sanity and reason, and who will have no concern for the harm they cause others.  This was a child, and still they didn’t care.  How much sympathy can we expect of them for an adult?

Today we take note of a new blawg on the block, Malum in Se,  It’s fascinating to watch as a public defender rediscovers the frustrations of dealing with humanity, and recognizes that it indeed has its stupid side.  It’s like reliving my youth.  We all go through these times.  Some of us come out the other end.  Others can’t manage to make it.

Here, our protagonist learns how defendants (not always the best and brightest) eschew those defenses that have a snowballs chance in hell of success in favor of their own really bright ideas.  At first, these defendant reactions are simply frustrating.  They don’t get it.  Even though it makes sense to them, they are transparently ridiculous and functionally useless.  The best part is that the defendants not only come up with these ideas on their own, but then tell the cops all about them before they lawyer up.  So by the time they reach a PD, the defendant has effectively killed any chance he may have had of getting a decent plea offer, no less winning.

Over time, you’ve seen and heard it all.  The trick is, as noted in the piece, not to allow yourself to become so jaded that you can’t distinguish between the one defendant who is telling the truth from the 100 who have devised their very own strategy of death. 

Everyone who survives in this business develops their own methods of persuading their clients to calm down, cut the crap and talk straight to us.  It’s harder when you’re a public defender, because clients don’t choose you and hence don’t have a vested interest in putting their trust in you.  For all the good you do, and all the passion you bring to your work, many defendants will view you as second rate and think that they are smarter.  Watch out for this, because you may come to disdain your clients in response to their disdain for you.  But always remember, it’s not personal.  It’s ignorance.  They are not the best and the brightest.  They are people who need help, and they need it really badly.

When I was in college, every girl I knew had a poster in her dorm room that shows a kitten hanging on to a bar.  The caption read, “Hang in there, baby.”  Keep the faith.  These are the people who need you the most.  They just don’t know it yet.  And welcome to the blawgosphere.  It’s a great place to vent those frustrations, and then you can return to the trenches the next day and prove to the world that you have a reason to exist.