Thanks to a reader (who prefers to remain nameless), comes this follow up to my post about my buddy Steve. Talk about timely. This article, originally from New York Magazine, quoting just about everybody who’s anybody in New York City criminal defense (except notably yours truly). At the end of this post, I’ll tell you about the little twist.
Criminal-defense attorneys maintain that, with the exception of the most minor offenses or the most serious — and when the accused is a celebrity — actual trials are almost rare now. Changes in the legal system have given prosecutors the power to exact extraordinary penalties from defendants who choose to go to trial and lose. The deck is so stacked against defendants who plead innocent, they say, that the average defendant doesn’t have the luxury of taking his case before a jury. Why fight, when the chances of victory are small and the penalty for losing is huge? Everyone is looking for a deal.
Sound familiar so far. Read on:
“Defense lawyers really feel like they have no job anymore. It’s like all the lawyering’s been taken out of being a lawyer,” says Ellen Yaroshefsky, a professor at Cardozo law school.
And, of course, it means that the demand for high-price legal-defense talent has dried up. Not only do the lawyers get to try cases much less often, but their fees have been steadily falling as well. Since many accused criminals know as soon as they’re arrested that they’re going to make a deal, why spend a lot of money to hire an expensive private attorney?
Your still with me, right? So what’s my old friend Diarmuid White got to say about it?
Some of those who’ve stayed have become so uncomfortable representing cooperators that they’ve actually begun to refuse to do it. “I view my role as a criminal-defense lawyer as a buffer against the state and a watchdog on abuses by the prosecution, the police, and the judges,” says Diarmuid White, who’s been practicing nearly twenty years. “When you represent a cooperating defendant, you’re actually sitting down with the government and helping them make cases against other people, and I don’t think that’s good for our democracy. I won’t do it. I lose business, but I sleep well at night.”
Take that, Gideon. But we’re not done yet, not be a long shot.
Even the gregarious Murray Richman has lately taken a distinctly gloomy view. “I now tell young people not to go into criminal law,” says [Murray] Richman, whose own daughter Stacey has been practicing with him for five years. “I tell them it’s a dead end, that there’s no future in the criminal-justice system for a young lawyer today. To me that’s truly, truly heartbreaking.”
“Because of what’s happened to our role in the system, nobody takes defense lawyers seriously,” says Richman. “We’re looked at as money-grubbing, mean-spirited people who are trying to screw the government and get guilty people off.”
So what’s the little twist here? This article was published on March 10, 2002, more than 5 years ago. And here we are, debating the same sad state of affairs.
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Nope, still a disservice.
And you don’t stop to wonder why all those lawyers with all that experience think otherwise?
You mean the lawyers with experience that choose to speak to a media outlet?
Uh, yeah. That would be them.
You’ve been posting a lot lately about the sad reality of criminal defense – but I’m still waiting for a post with an outright up-or-down recommendation: given the pros and cons, should young would-be lawyers still consider going into criminal defense? With the benefit of hindsight, do you think you’d have been better off doing some other type of law?
Hey Other Steve. That’s a great question and tough one. Let me think on it some.
We should all think on it.
While I am not as experienced as some, I was not surprised for one second that the “sad reality” is a relatively old reality. It has been developing over time. But practitioners seldom talk about it. Among those of us who have, one assessment has been that our legislators are the core of the problem, micromanaging procedure and sentencing. And human conduct — essentially, concocting new crimes. Then throwing funding around to enforce them.
They are politicians, creating rules just because they can. But they do not know what they are doing. They respond to the lowest common denominator among the public, such as tragic anecdotes and statistics from biased sources. They would not admit it, but most of our representatives think of what they do as their job. All they really want out of life is to get reelected. But how useful are they?
This is the nature of governments when they keep growing, and lose control, as they have been for many years. The article gives us examples. Just a couple more that we can identify with –
Megan’s law and the perverse residency and travel restrictions imposed by statute and ordinance on convicted sex offenders are examples — reacting to the supposedly large recidivism rate among sex offenders. But it is probably not true that their recidivism rate is noticeably greater than other types of convicts.
The fewer laws, the broader the agreement among laypeople, our representatives, and the bar about what conduct is priority for prosecution purposes. Hypervigilance and unintended consequences are kept to a minimum. And we have more freedom.
But the more laws, the less the agreement, and the greater the subdivision. Over time, exponentially, control amasses by default in the government. Especially the prosecution.
And there should be no surprises at trial is the concept enshrined in NY civil procedure for over 40 years. But this is not the concept in criminal procedure. Why should we be getting Rosarios after the jury is empaneled? Why should jailhouse rats not be subject to corroboration, like accessories? Because the legislature has enacted these statutes with presumptions of guilt. After all, he’s indicted, and sitting at the defense table, isn’t he?
My my. I get on a roll sometimes.
I am not sure about answers, either. Except for one thing. Science will help. I am hopeful that over time, about our wrongly convicted defendants, proven innocent by DNA, and suing for and winning damages from the taxpayers for their losses, will educate the public about unintended consequences. Because the innocent suffer. There are so many of them.
Otherwise, I am not sure about the answers, either. But as I said science will help our younger attorneys.
Regards. Kathleen.
To fight the good fight, to dream the impossible dream, to give some hope, some comfort to the huddled masses. The lawyer doing his job provides protection for civil liberties, the rights of the minority in a democracy. Majority rule, minority rights. To protect the bill of rights and defend the civil rights of us all. As, Darrow would say, I can be free only to the extent that the other fellow is free.
Sometimes I wonder what kind of society this would be without a lawyer standing up for the bill of rights. Who wants to live in a society without individual rights? They are coming to America! Land of freedom, home of the brave. People still want to know, how can you defend those people? My shortened answer is what kind of society would this be without individual rights and without protection for the individual against the majority? A bill of rights is fundamental. The rights of the minority, property ownership, a man’s castle, the right to life, liberty, and the pursuit of happiness.
Yours in the Law, Glen R. Graham, Attorney at Law, Tulsa, Oklahoma