Is This What They Think of Criminal Defense Lawyers?

So I’m reading Doug Berman, as usual, and come to a quote by some lawprof named Dan Filler from The Faculty Lounge, and come to a screeching halt.  What the heck is he talking about?

The subject is Heller, a case that will fascinate and provide fodder for lawprofs for years to come, and the discussion is about what it means to practicing criminal defense lawyers.  Naturally, the lawprofs discuss it amongst themselves, as they certainly wouldn’t want to consider what actual, real, practicing trench lawyers think about it.  That would be demeaning.

So I put on my rattiest tweed jacket with the leather patches over the worn elbows, clench a Meerschaum pipe between my teeth and sneak into the Faculty Lounge.  Standing with his elbow on the mantle of the roaring fire (in 90 degree heat in the midst of summer, but without any beads of sweat on his brow at all), holding a petite glass of Chambourd mixed with just a touch of cheap champagne, is Dan Filler, pontificating in a stentorian voice to the rapt audience:

I agree that criminal defense lawyers will work hard to use Heller.  At the end of the day, however, I suspect  that most legal havoc will come via facial challenges to broad gun regulation.    As criminal defense attorneys have long known, it’s very difficult to protect constitutional rights when the constitutional defender is a bad apple.  Yes, the courts have issued various defendant-protective criminal procedure rules over the years.  But notwithstanding these decisions, the facts never seem to quite come out right for the defendant.  Police and prosecutors learn the rules and shape testimony (and, though I’m skeptical, perhaps behavior as well) to meet those rules.  And elected judges have perfected the art of strategic fact-finding – which trumps “the law” almost every time. 

Defense lawyers may have fun with Heller for a while but I suspect that they’ll soon discover little to play with, and they’ll return to the bread and butter.  Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain.

Resisting the urge to leap forward and pop him one in the kisser, but only because it would blow my cover, I slowly wheeled around and slinked out of the room.  “Is that it,” I asked?  “Is that what they think of us?”

Who is this guy to assume that we’re all flash and no substance?  Probably some Biglaw wannabe who hitched his wagon to the prosecution before dedicating his life to the denigration of criminal defense lawyers.  So I checked him out.

Four years as a Philly public defender, and then a year as a staff attorney for Bronx Defenders!  

Sure, he did some time at Debevoise, but nothing that a year in the Bronx couldn’t fix.  How did he go so wrong?

So I asked my buddy Danny, the co-founder of Bronx Defenders, about this Filler character.  “Who?” he responded.  “Filler, Dan Filler. What did you do to this guy to make him hate criminal defense lawyers so much?”  I couldn’t get a rise out of him, likely a result of that fall on his head while rock-climbing on the Grand Concourse.


Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain.

Now I can understand where the plea bargain after plea bargain stuff comes from, though it doesn’t commend him as one of the more skilled public defenders, but has he lost all touch with reality in his decade in the Academy?  Or is this what they actually think comprises the breadth and scope of being a criminal defense lawyer?

No wonder they pay no attention to what trench lawyers think.  As I left the oak paneled walls of the Faculty Lounge, draining the remnants of the Pinot Grigio from my stemmed glass, I muttered to myself, “well, he can eat my . . .”

Update:  Doug Berman has posted the question at Sentencing Law and Policy whether the divide between lawprofs and the practical blawgosphere is as big as I suggest.  This could well be a matter of my being too close to the situation to recognize that we are far closer than I believe.  As Dave Hoffman of Co-Op suggested the other day, I may just be a whiner.  Or perhaps we are closer than, say, non-blawging professors and practicing lawyers, but not as close as we could/should be within the blawgosphere.

I look forward to seeing the responses to Doug’s question.

12 thoughts on “Is This What They Think of Criminal Defense Lawyers?

  1. Joe

    Granted, the Supreme Court made a ruling on Second Amendment rights, but this doesn’t really affect criminal law that much because there are already a great deal of anti-gun laws on the books targeted towards criminals.

  2. David

    he’s likely revealing both the way he operated as a Public “Defender” as well as a desire to show his new colleagues that he wasn’t placed where he rightfully belonged right out of law school but was simply performing the academic equivalent of a peace corps mission: working alongside the public school lawyers, among the natives, to add that anthropological experience to the cv and have a nice cocktail party opener.

  3. SHG

    Ouch.  I could feel that slap all the way in New York, David.  I wonder what Dan has to say, because you may have hit the nail on the head with that cocktail party remark.  Is Filler smarmy because he’s “been there, done that” and after those long, hard five years in the trenches, knows it all.  Or is this just his Peace Corps project before entering the Ivory Tower.

  4. Robert Brooks

    Sounds to me like he’s dissing the courts, not defense lawyers. We can make the most compelling arguments only to have them trashed by a run-of-the-mill, per curiam, unpublished opinion. What’s your problem with what he says?

  5. SHG

    As much as you might like to find a benign explanation, I’m afraid that there’s no interpretation of “Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain” that can be attributed to the courts.

    My problem is that this isn’t what competent counsel does.  A better question is why this doesn’t concern you.  Does this reflect how you defend your clients?

  6. Robert Brooks

    Ouch. As the police officer said to defense counsel, “Anything’s possible.”

    On the other hand, I think most objective and experienced criminal defense lawyers would agree that “Dramatic closings; perilous cross-examination; and of course plea bargain after plea bargain after plea bargain” is an accurate, albeit cynical, view of reality, regardless of your skill or dedication.

  7. SHG

    I really can’t (and don’t) agree, and I would venture to say that most of my fellow criminal defense blawgers would disagree as well.  Mind you, there are different types of criminal practices, and I don’t say this to put you down, but that is not even close to my reality in my 25 years of practicing criminal defense.

  8. Michael Bannerman

    Come on, Loosen up. As a Philly creim inal defense lawyer and former staffer at DoJ, I want to make a couple of comments here.

    Municipal court practise in Philly features quite a bit of plea bargaining in the form of stipulated trials. Instead of a client pleading guilty, we do something called a stipulated trial where the police report is read onto the record and the judge finds the client guilty of the agreed terms. The client keeps his appellate rights under a stip trial. A lot of MC practise is doing this as full blown trials would totally gum up the system. I’m sure that this guy did a shitload of these as a Philly PD, which may colour his statement.

    On the Federal side, since most federal cases are pretty much cut and dry since the feds don’t like cases they will lose, the practise tends to be “let’s make a deal” with proffers. Unless there is a really meaty case, there isn’t going to be too much trial practise in the lower stages of a federal case. When there is a trial, it costs so much because of the resources needed to tackle the fed’s evidence, that the defence costs a fortune. Additionally, most real fed practise tends to be appellate in my experience.

    So, maybe the guy isn’t dissing all the lawyers who go to trial everyday, but speaking from experience. Personally, I don’t try a lot of cases in relation to ones I dispose of in some form of “non-trial disposition”. Of course, the whole thing sounds like shit for the criminal defense bar as it sounds as if all we do is plea bargain, which ain’t true.

    So, my hat is off to you with all the trial work you do, but that’s the difference between NY and PA.

  9. Michael Bannerman

    Hey, it’s the Philadelphia way!

    It’s amazing how people forget what happened and was written a couple blocks down the street.

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