Back in the old days, there was a bank just for criminal law. It was used by prosecutors, defense lawyers and judges. We did favors (called “contracts”) for one another from time to time, and the favors went into the bank.
Some may remember a novel by Tom Wolfe, Bonfire of the Vanities, which talked about the bank and how contracts worked. Tom learned about it from his good buddy Eddie Hayes, who was a criminal defense lawyer and former Bronx ADA. Eddie and I were in the same office at the time, and Tom Wolfe would come around dressed all in white.
Last night was the 40th birthday party for my former protégé’s wife, on a roof garden atop a Fifth Avenue penthouse in midtown. The party was spectacular, the birthday girl looked fabulous. I bring this up because the party was lousy with lawyers in general and criminal defense lawyers in particular. Many were former Bronx ADAs, as was my young friend shortly before we started working together.
Sitting there, enjoying the beautiful evening and magnificent views of the Empire State Building (and looking down into the windows of neighboring apartments to see if anything interesting was happening), we got to talking about how criminal law has changed over time. Younger criminal defense lawyers cannot remember a time when the Supreme Court expanded rights, when judges didn’t universally find cops credible no matter how crazy their testimony, and when defendant were given a fair shot.
But not one of them knew what a contract was, or how you banked one or how you made a withdrawal. The idea was totally foreign. This was a shame.
When I started doing this, one of the first things you learned was the sanctity of a contract. When you sought a favor, you owed it back. If you didn’t pay on demand, your name was mud and no one would ever do you a favor again. In fact, people would go out of their way to burn you. It was a matter of internal honor.
I did a lot of favors for people back in those days. I banked them. I rarely had much need for favors in return, being a well-organized and somewhat compulsive type of lawyer, so that my account at the favor bank was pretty healthy. One day this would come in handy.
Sometime back then, the bank quietly closed its doors. It wasn’t FDIC insured. It just disappeared. And with it, my account. I can’t quite tell when it happened. I didn’t receive anything in the mail. No phone call. Just one day, no one seemed to know anything about it. No longer did anyone talk about contracts. They never even heard of them. Talk about it and you got a blank stare in return.
I was telling stories about contracts to this groups of lawyers, sitting atop this tall building on a beautiful summer evening, and they couldn’t believe that there was a time when those of us who worked in criminal law were actually able to cooperate with each other. They couldn’t fathom the existence of an unwritten honor code where we trusted each other to return the favor. They couldn’t conceive of a virtual bank where our contracts were held, awaiting the day we needed a favor in return.
Much has been lost in this business over the years.
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Why do you think that this happened? Do you think there is any connection to the massive shift to the right in the courts (that you allude to above with regard to the courts, the cops, and defendants?)
That’s a great question. My gut is that things changed when “law” became “war”. The rhetoric heated up appreciably, and attitudes stiffened all around, creating excessive zeal to the point where younger people could no longer recognize that we were all part of a whole, instead seeing everything as black and white, good and evil, us and them.
While this wasn’t true of everyone, it was true of most and became part of the “culture” of criminal law, as if we personified our clients and prosecutors personified governmental abuse.
But I’m not sure that this really captures it, so I need to think on this some more. Great question.
I’ll be very curious to see what you come up with after you’ve thought about it. Not having been in those trenches myself, I could only guess, but I wonder also now if one way the shift to the right of late could have contributed was in the way prosecutors have been given ever more power both in sentencing and also in the fact that today most prosecutor abuse is basically ignored by appellate courts or found “harmless” means that prosecutors, at least, have no need to make contracts or get favors because they hold all the cards to begin with.
You don’t need great negotiation skills when you are the one holding a gun to someone else’s head.
But that’s just rank speculation. One of my pet peeves is that prosecutors have far, far too much unchecked power, which corrupts even the best people.
I eagerly await your analysis.
You don’t need great negotiation skills when you are the one holding a gun to someone else’s head.
Sure. I’m very, very interested in reading our host’s response.
Your comment about prosecutorial power is almost certainly right. Did remind me of a conversation I had with an acquaintance, some years ago. He’s a prosecutor for my state’s Department of Corrections, and his job is to prosecute incarcerated people (convicted ones, in fact; he doesn’t do jail stuff, just the prison stuff) for crimes that they are charged with committing while in prison. (If, say, the guy’s girlfriend smuggles him some heroin, he prosecutes the guy, not the girlfriend.)
“Isn’t that kind of like shooting fish in a barrel?” I asked.
“Yup,” he said, and explained that — and I believe him, fwiw* — he went on to say that he wouldn’t prosecute somebody unless he both thought the guy really did it, and he had a good shot at a conviction, “I never have to put in any overtime, and I sleep real, real well at night.”
I report; you decide.
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*Which shouldn’t be much.
But we may be going off on a tangent here. Let’s not sentence before we convicted, okay?
As to your prison prosecutor, it’s a job that has to get done. Easier than most, sure, but crime inside prisons happens and something has to be done about it. It’s just as legit as any other prosecution, and if he’s a stand up guy about it, then so what if it’s easy. As long as he does it the right way.
Joel and Scott:
Wow, what are you thinking, or not thinking. You did state “as long he does it the right way.” Does that mean an attorney for inmates during hearings in a control environment? These jail prosecutions are outrageous and a blatant civil rights violation, unless you know a specific case that isn’t.
The auditors report for my County, Stated the Sheriff’s Dept. did 64 investigations for the jail, which are forwarded to the County Atty. for prosecution. Nowhere in the Department of Corrections budget (or county budget) is a line item for attorney fees (for Inmates) for these investigations and interrogations. When I query about this issue, “The court will provide a lawyer or a public defender.” “Where is the PD fee in your budget ($125.00).” “The court pay’s it. What provide a lawyer after the interrogations! Charges will be file against anybody that violates the law (bringing in of any kind of contraband into our jail). How many OATH OF OFFICE violations here, by whom? I hope the nonchalant attitude isn’t for the lack of money, for we are dealing with the broken downs of society.
It’s impossible to know what county you might be talking about, but we have some excellent indigent defenders working for prisoners in New York and getting some very respectable results. We have defense lawyers for prisoners in New York. I’m very sorry to hear that you don’t.
If you want to talk about problems in your neck of the woods, then you’re going to have to come out of the closet and provide a littler more info, like where that would be and what the basis is for your allegations. Don’t assume that your area, or your experience, is true for everywhere and everyone else.