Ken Lammers at CrimLaw suggested that anyone who seeks to spend their legal career in criminal law should try on the other side before siding with “the good guys,” whichever side one feels the good guys are on.
So, here’s my suggestion to those of you interested in starting a career in criminal law. I know that no one will listen to me, but I think the world would be a better place if they did. Whichever side you feel are “the good guys”, start on the other. Practice there not for 6 months – or even 2 years; practice there for at least five years – enough time that it becomes second nature. Then flip sides. Stay there for at least 3 years. Then put some serious thought into where you want to put your efforts.
Ken, for those who live in a cave, was a criminal defense lawyer who in later career turned to the dark side and became a prosecutor, a rare thing to do.
The Texas Tornado, Houston criminal defense lawyer and the top criminal law blawger around, Mark Bennett, responds: Nuts.
I don’t think it’s bad advice for everybody (lots of people might have no clear idea of how the system works, and might be leaning only gently toward one side), but for anyone who has a clear preference for one side or the other, it goes against several of my principles.
Mark lists four principles to consider:
- Do the right thing right now.
- What is in your heart is more important than what is in your brain.
- Your duty to do right is a duty to your self.
- Never lose altitude unnecessarily.
While it’s impossible to argue against these principles, there are some additional concerns that really must be considered.
Initially, the presupposition of who are the “good guys” by those who have yet to experience the joys of being involved in criminal law are largely meaningless. No side sits at the right hand of God, always doing the good work while the other is wrong or evil. Both are necessary. Both have their place. Both serve a vital function to the extent that system serves any purpose at all.
To think otherwise is to be a “true believer,” and such zealots, regardless of side, are one of the gravest evils in the system. While there are some on both sides who ferverently believe that the other is inherently wrong, thus justifying the “win at all costs” attitude that defeats the ability of the system to serve its function with any integrity, these people should never be considered the heroes. When someone is so blind as to be incapable of seeing the beneficial purpose of their adversary, they are destined to be blind as well to the limits of their own integrity.
An appreciation of the role served by the other side is important, and while it doesn’t necessarily require a defense-oriented person to prosecute to appreciate the good done by prosecutors, the competitive nature of criminal lawyers tends to propel some toward a level of zeal that blinds ones eyes.
Moreover, law students predisposed to one side may well find that exposure to the others, to its goals and purposes, changes their minds. There’s nothing wrong with that, but without an opportunity to learn and appreciate that there are other points of view, one might never realize that the concept of “right” as a child may change as one matures.
Even if a stint in a district attorney’s office doesn’t alter ones feelings toward the poor and oppressed, it never hurts to have a breadth of experience that can be added to the arsenal available to the criminal defense lawyer. While I have argued, probably more than necessary, that experience as a prosecutor does not, per se, translate to competency as a defense lawyer, every experience of a human being helps to broaden one’s scope of knowledge and experience. It’s certainly not a negative.
And finally, there is quite a bit of good that can come from walking in the other guy’s shoes for a while. A defense-oriented person may well be able to do a great deal of justice with the proper use of the power of the prosecution. Indeed, we may well hope that all prosecutors have that bone in their head that leads them to possess a greater understanding of justice rather than a shallow desire to put notches on their gun.
Recently, Shawn Matlock (who has been largely AWOL around here) opened a huge can of worms by allowing a guest blogging prosecutor to post the ten things he hated most about defense lawyers. Other prosecutors then jumped on the bandwagon, adding yet another ten. For the most part, these lists were interesting because of how myopic they were, demonstrating how little understanding there is between young prosecutors and criminal defense lawyers. This isn’t a slight on the prosecutors, as I have no doubt that a top ten list by criminal defense lawyers would be similarly myopic. Both sides see the other side’s problems so clearly, but completely understand and excuse their own issues. Shocking, right?
Once a lawyer has experienced, or at least come to a real understanding of the role played by both sides in the system and truly appreciates that both provide a real benefit to society, they are entitled to decide who the “good guys” are. Until then, their notions of righteousness are unearned.
While I can’t question Bennett’s bottom line, to be true to ones own beliefs, I can ask whether those beliefs are the product of a full, real and grounded understanding of the life. Until they are, it wouldn’t hurt to heed Ken’s advice and walk awhile in the other guy’s shoes. It might make for a far better system than we have now.
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While eloquent, I would ask how the “system” becomes better when only one part of it is addressed? Prosecution and defense do not account for the parts played by police or judges who arguably play more important roles; beginning and end.
I’ve also seen this term “true believer” bantered around in description of people on both sides. In my minds eye, I can see such a person being “annoying” no matter what side of the fence they play on, but to describe a similarity beyond that is false, in my opinion. One need only look to the singular belief each one holds. I’m of the opinion they are not equal.
(Preface: I’m a law student who has foreclosed the possibility of prosecuting because of the views stated below. Do you think I should reconsider?)
How about those (such as myself), who aren’t zealots or “true believers”, are fully aware of moral ambiguities and complexities, recognize the importance of the opposing side and the importance of competent people filling that role, but believe we would be violating our own principles by working that side ourselves?
Personally, I believe that large swathes of the criminal law should be erased or radically reduced. I don’t have any ill-will towards prosecutors who feel differently. I just don’t think I could ethically prosecute people for things I don’t think should be crimes.
Additionally, my personality is generally iconoclastic, and I’m much more naturally interested in the plight of the individual against the system than in expanding the system’s authority. So it seems like defending fits my skills and interests, as well as my convictions, better than prosecuting would.
The beauty of advice is that it can be ignored. But if you take a hard look at your “beliefs”, are you certain that they are so fixed, so correct, that you wouldn’t benefit from a different perspective? As we mature, we often find that the belief held when young change over time. You may be exactly they way you see yourself. You may look back ten years from now and think otherwise.
It’s all your choice. Consider what will make you the best you can be.
Pendulum,
Of course you can ethically prosecute people for things you don’t think should be crimes, just as you can ethically defend people you don’t think deserve to be defended.
You may not want to do either.
Defending may well fit your interests and convictions better than prosecuting, but as for your skills, as defence counsel over here in Blighty, I have no doubt that prosecuting enhances my skill in defence, and vice versa.
You may well find that your personality is exactly suited to prosecution work. One more criminal defence attorney fighting the system is just that. A prosecutor who values due process, the rule of law and the rights of the individual is something altogether more worthwhile.
Well said, and a very persuasive point. Pendulum may still go with his heart, but at least he has good reason to reconsider before deciding.
Persuasive only from a narrow view. It does not take into consideration other factors impacting the zealousness of prosecuting some cases.
It would seem far more useful to add whatever factors you think should be considered as well, rather than make a pointless negative comment while adding absolutely nothing of substance.
First, I have. Second, it’s only “negative” because you choose to see it that way.
Three points, First, when you are replying to a comment, please do so by hitting the link that says “reply to this.” That way, you make clear what comment you are replying to. It’s easy to do and may solve unnecessary confusion.
Second, if you have offered the factors you think that Interested Counsel failed to recognize (which I assume is the comment to which yours was directed, since you didn’t use the “reply function,” where are they? I read your comment. There’s nothing there. So what are you talking about?
And third, your comment is negative because it’s negative. Your comment was that Interested Counsel failed to take something (what, we don’t know) into account. Everyone considers a comment that someone failed to do something as negative. This isn’t rocket science, and a knee-jerk reaction like “no I didn’t” doesn’t reflect well.
You’re more than welcome to explain why you think Interested Counsel (or anyone else) failed to do something, but then do it. I explain this to help you, not to argue. It would be simple enough to just delete another comment that adds nothing to the discussion, but I’ve taken the time to try to help you to understand since you’re a law student. If you would rather engage in more pointless argument, I can make the comments just go away. It’s up to you.
This began over at Ken Lammers blog, I commented on my blog, Mark Bennett picked it up and it found its way here. That being said, I said it was persuasive but limited and gave a succinct reason. Even if I hadn’t already commented on my own blog and on Mark’s blog(especially), I wouldn’t think it would take much effort to fill in the holes I left. I have nothing against IC or his/her comments. In fact, I’m fascinated by how things might work across the pond so there never was an intent to be negative.
Well that helps to explain. I make two suggestions: There is a strong chance that comments made elsewhere will be unknown to someone reading your comments here. Basic clarity would suggest that your thoughts be complete in a single location, rather than expect readers of your comments to go from place to place to place in order to understand your point. It’s unlikely to ever happen.
Second, please use the “reply to this” button to comment. If you want people to understand you, you really need to provide them the means to do so.