We all have darn good reasons for what we do. At least they seem darn good to us. At least they seem darn good to us at the moment. It tends to be the path of least resistance, but our minds tell us that it’s the road we should take if we want to fight another day.
In retrospect, we don’t always make the best choices, if we’re fair about it and reasonably honest to ourselves. Sure, we can rationalize it otherwise, provided we’re alone in a room and nobody else is around who might be a bit more honest than we are to ourselves, but it allows us to feel relatively good about ourselves without that nagging, “wow, did I really screw up that bad” feeling. We need that to keep going every day.
There’s been a lot of criticism thrown about the place lately. Not surprisingly, some have taken umbrage to it, and others have challenged it. Many have found it dogmatic and doctrinaire. We’re criminal defense lawyers. We’re tough guys. We stare down evil and take our chances, and anybody who isn’t ready to go to jail for the cause is a worthless, gutless, wussie. It’s a bit extreme. More than a bit.
It’s unpleasant to use a blawg to highlight lawyers facing unusual circumstances and find them wanting. Especially when, as has been pointed out by some commenters, it’s all too easy to be critical from a distance, when it’s not your butt that’s going to end up on the hard wooden seat of a jailhouse bench. We all want to do our jobs, do them well, and go home at the end of the day. We’re lawyers, not sacrificial lambs.
For the record, I’ve faced choices like those I’ve questioned. We all do from time to time. Thankfully, it isn’t a daily occurrence that we risk contempt, or worse, to do our jobs. But the nature of our work isn’t like other jobs, even other jobs in the law. We are a peculiar breed, choosing to stand next to some unsavory characters, some truly hated and despised defendants, and be their voice. That puts us in the line of fire. It’s our choice to be there. No one stopped us from doing real estate closing instead. We could be lawyers, kinda, and never faced tough choices. Instead, we’ve chosen to defend the least powerful person in the room, and put ourselves in a position where getting our teeth kicked in, or hands cuffed, is always a possibility.
On the few occasions that someone has informed me that one more push, no matter how slight, would land me in contempt, or under investigation as the case may be, I pushed anyway. I’ve never been held in contempt. I’ve never been indicted. I’ve never been jailed. But I have been threatened by some nasty judges who meant business. And still I stood my ground.
I wrote a while back that you either stand for something or you stand for nothing. I meant it. I mean it for me, and I mean it for anyone else who does this job. I want to go home after work like everyone else, but I also want to be able to look at myself in the mirror. Now that I’ve reached the top of the hill, and find myself slipping down the back side, the worst thing for me would be to believe that I’ve spent all these years in the trenches and done nothing more than make sure I made it home safely. There has to be more to a life than safety. There has to be some purpose, or this was all a big waste of time.
No one expects that every criminal defense lawyer is going to grow a set, stand up for the cause and risk their personal safety and freedom. Frankly, most of us have very low expectations of others. But low expectations are almost always fulfilled. My hope is to raise consciousness and expectations. Maybe one lawyer who might be inclined to shut their mouth rather than speak out loud and clear, and risk the wrath of a judge rather than sacrifice their client, the law, their dignity, will feel empowered to make a different choice.
It won’t be easy, and it won’t necessarily be fun. You may win, but you could also lose. But at least you will have lived. You can’t fight another day if you’ve never really fought before. Sorry if this doesn’t make you feel good about yourself.
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There used to be this notion of the virtue of prudence, which can more or less be defined as keeping things in proportion and balance.
We work as part of an institution that is, to put it mildly, very imperfect. It is loathe to yield up a finding of “not guilty” and will do so only when managed just right. Managing it “just right” is a Herculean task, and there is only one player in the system who can do it. And he is in the most disadvantaged, powerless position, as you rightly point out.
Some defense lawyers seem to believe that the best tactic is to fight every point no matter how small and wear the system down. Exhaust it on matters great and small so that it dreads your every appearance. For certain personality types this may be the most effective thing. I don’t judge anyone who approaches it that way. It may work for them. All I know is I can’t do that.
For me it’s a matter of picking your fights very carefully. I try to be objective about it and I hope I usually succeed.
You get a client who was wrongly arrested and charged but the DA lowers the stakes so much – say, to a non-criminal violation – that even though the client has been wronged it isn’t worth the fight. You let that one go. Or at least I do.
But where the stakes remain high and the wrong is serious and the principle is important you have to pull out all the stops. Unless your client is Donald Trump it is financially and sometimes emotionally and even collegially debilitating.
But I imagine, Scott, that you would be the first to say that that’s what you signed up for, and you can’t back out of the race after the starting gun has been fired.
I agree that despite all the hardship there is comfort in at least having an important purpose. I sometimes sympathize with my tormentors (judges) who can only respond, never initiate.
But I don’t sympathize too much. They make the job much harder on themselves than it has to be, worrying about a lot of political considerations instead of applying the law even-handedly and straightforwardly. That’s why they get pressured so much – because the powerful players sense that they can be pushed around.
I get the sense that you can’t be pushed around. That’s why you should be a judge, and it’s also why you never will be. And that may be one of the best descriptions of why the system has some major, major problems.
As a defense investigator and mitigation specialist, I personally don’t have the same dog in the fight as the lawyers I work with. I don’t think that the individual lawyers worry so much about a night in jail as much as the negative impact a contempt citation would have on their clients.
No one here in Maricopa County or in the blogosphere has offered a solution as to how we go about restoring the necessary balance between the branches of government. It very much feels that the executive branch is wholly responsible for running the show.
I know there is hope, because the Arizona District Court very much as it should. While criminal cases are always belligerent, the relationships between Federal defense counsel and the Government are usually collegial.
Very well said.
Thanks for this post it helps me understand the PD behavior in my county.
If Scott were a judge he would not be able to blawg.
As someone innocent, who has been investigated by the state, all I can say is, indeed, my criminal defense lawyer was representing the least powerful person in the room. I must say that I firmly believe that he is the best of the best, yet even then, I realized that he was but a diaphanous veil between me & all the resources available to the state of California. That’s when I realized how vulnerable any of us potentially are. Always, criminal prosecutors had been my personal heroes. They still are right up there, in terms of persons whom I greatly admire. But guess what? Criminal defense lawyers have superceded them, & my basis for this is obviously due to my own experience. Which is more than good enough for me. Please accept my most genuine gratitude for the work that you all do. I’m a physician, myself, but no–I don’t know how you guys do it. ‘Cheers.
You’ve been around people making excuses for far too long to know what it’s like not to. This isn’t about the negative impact on clients, and anybody who uses that as an excuse is a moron or liar. No one wins, or gets the best deal, from a position of weakness. A lawyer would know that.
I’ve been arrested, (a paper arrest via a NTA) and have lost my C4 motion and now have another motion to dismiss pending, because I stepped up to the police and State Attorney’s Office (southern Florida) who were trying to railroad my client.
I’m sure I’ll ultimately prevail, but having to deal with trumped up charges (misuse of 911) affects my ability to serve my current clients because I have to now deal with my own case.
Marc, for what it’s worth, I’m proud of you for doing something so dangerous, when it remained the just thing to do–especially when you, of all people, knew just how destructive it can be to stand up to the police & AG. It is grievous to hear that this has happened to you. All I can say is that you will be in my thoughts as you go through the steps to defend yourself in the Court of Kangaroos. (NB: to other readers, forgive what may have appeared maudlin, but this gentleman truly needed to be validated. I know–not the usual blawg in which to read something of this effect). ‘Cheers.
It’s a tough job. Could you stand by and let them railroad your client?
Objectively,I probably ought to have, but my instinct was to step in and protect my client. And the defense bar has been mixed; some offers of free representation and others (lawyers I’ve covered hearings for) said they could give a professional courtesy discount but would have to charge me. The charge is 1) a misdemeanor, 2) has virtually no pc much less a chance of sustaining no reasonable doubt and 3) the first time anybody has been brought to trial on misuses of 911 (even the mcdonalds chicken nuggets case arrest became a deferred prosecution).
I appreciate the support. I certainly have gained a healthy respect for the maxim that it’s easier to defend a guilty client than an innocent one. For the clearly guilty, you utilize every evidentiary and procedural argument at your disposal; whereas for the innocent you want to suspend the court decorum and yell out “are you f-cking kidding me, judge, look at the evidence, look at it!”
The fact that others aren’t backing you up is the flip side of gutlessness. It’s terribly disheartening. At least you know that you’ve got the balls that others lack.