Cameras in the courtroom is controversial enough. But in the holding cell? When a defendant first meets his lawyer to talk about the case? That’s where a new National Geographic show, Criminal Defense: And Justice For All, starts.
After all, there is the long-playing television reality show, COPS, with the catchy Bad Boys song, showing police going from one trailer park to another, keeping the streets safe for people who don’t shop at Wal-Mart. With the cameras rolling and lights flashing, nobody ever gets beaten for kicks, so the show isn’t a total waste. Why not a reality show about what criminal defense lawyers do?
The “actors” are from the Brooklyn Legal Aid Society and the streets of Kings County. In the best of worlds, it’s a juxtaposition to the excitement of real life cops and robber, showing the tedium of real life public defenders trying to defend real life defendants from false accusations and overreaching prosecutions. What could possibly go wrong?
Gideon, another real life public defender, wonders how well this show will depict reality :
The show follows public defenders at the World Famous© Brooklyn Legal Aid as they represent clients during the course of their humdrum, everyday routine while doing things like climbing ladders at crime scenes to prove that the cops are lying. We all do that, right? Whether this show accurately captures the life of a public defender and the day-to-day workings remains to be seen.
But deeper concerns abound:
Over at Legal Ethics Forum, Brooks Holland, who I can only assume is a LawProf, asks an interesting question : are these shows good or bad? Specifically:
A great chance to profile the important, difficult, and under-valued work of public defenders, and to humanize the experience of clients and other individuals who navigate our criminal justice system. At the same time, I wonder about confidentiality, even with client consent, and how a TV camera could affect client representation and advocacy, consciously or unconsciously. What do folks think of the pros and cons of this kind of show—should lawyers agree to participate?
I’d love to see what the confidentiality waiver looked like for participants. Will prosecutors try to argue that any and all confidentiality was waived? Will lawyers be tempted to be on their best behavior and actually perform their jobs and will judges and prosecutors play nice because there’s a camera around? Will people get the wrong idea about just how messed up the criminal justice system really is?
There is little doubt in my mind that the camera changes things. In time, players get used to the camera over their shoulder, and return to their normal behavior, but the players aren’t long term television stars and never reach the point where the cameras are forgotten. But that’s really not a huge concern. So what if it’s a phony, a television show that sugarcoats reality and has all the players on best behavior.
The issue of confidentiality is huge, and Gid only scratches the surface of the problem. There is no way a defendant in a holding cell awaiting arraignment can waive confidentiality, no matter how long and detailed the waiver may be, without the advice of independent counsel. When you see a Legal Aid lawyer meeting with her client for the first time, all captured on the camera, did he have another lawyer, not with Legal Aid, advise him of the implications and consequences?
Gid asks whether that will vitiate privilege altogether. It would certainly appear so. The price of fame, and a waiver, is expensive, and that includes confidentiality. Why wouldn’t a prosecutor argue that the defendant waived confidentiality? And why wouldn’t he prevail?
In a second segment, the video trailer shows a Legal Aid lawyer, Adam, doing a crime scene investigation (which beings with an advertisement, because NatGeo wants a quick buck like everyone else). Gid gets a bit snarky about the lawyer playing James Bond, climbing up fire escapes in the search for truth.
Drama aside, you learn at the end that he thinks his pictures will have a big impact on the defendant’s trial, which starts the next day. He notes that the defendant has been in jail for a year awaiting trial. Did it dawn on anyone that the lawyer should have inspected the crime scene a year ago? Did it occur to anyone that he’s about to go on trial and has no theory of defense yet? He’s first interviewing witnesses the day before hearing and trial?
Did it occur to anyone that had he done his job promptly, perhaps he could have persuaded the prosecution that the defendant wasn’t the perp and to drop the case? Maybe get his bail reduced? And how does he plan to get his pics admitted into evidence?
No doubt the video is meant to show the great lengths to which the Legal Aid lawyer will go to prove his client’s innocence. What it actually shows is that a defendant sat in jail because a lawyer neglected to do his job until the day before trial. And what if he made that trip and confirmed what the cop claims?
For that matter, what if the Legal Aid lawyer interviewing her client in the pens got an admission instead of a denial? Or what if she pressed his denial, and got that “you got me” face, with the big, broad smile when the defendant concedes he just lied to his lawyer about “nothing happened” and comes clean?
Is 15 minutes of fame worth 15 months in the pokey? Or 15 years?
Someone at the Legal Aid Society thought this was a good idea, a way to show the heroics of public defenders. But criminal defense isn’t about the lawyer, even if they’re public defenders with their perpetual inferiority complex. It’s about the defendants, and whoever approved of this failed to consider what they were trading off for their moment of glory.
Granted, fictional dramas about criminal defense are nonsensical, and give the public little clue about the reality in the trenches. But then, does the public’s curiosity (assuming they are curious) about the human beings behind the accusations trump the lawyers duty to their clients? It never has before, and it surely doesn’t now. And even recognizing this problem, not every criminal case has a fairy tale ending, reducing what appears to be cherry picked footage to just another reality show fantasy.
H/T @PaleoRage
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Of course, by the time a lawyer sees a jail client the client has already told his story to everyone in the jail, including the jailers. The appointment process around these parts has a built-in time lag in order to give plenty of time for interviews with the cops and DA investigators before anybody even thinks about getting Joe Inmate a lawyer.
Arrrrrgh. Delete one of those.
[Already did.]
P.S. That new Recaptcha thing SUCKS.
[Totally sucks, and I despise it.]
A chicken in every pot and a lawyer in every precinct. Works for me, though they still have plenty of time to spill their guts on the ride in.
I suspect that an accurate portrayal of the criminal justice system would be too dark for most viewers (and advertisers). Some of the public is genuinely curious; but most would just like to gawk at the spectacle, inwardly thanking whomever that they are viewers, not participants.
It’s sad that a potentially very educational opportunity (showing Joe Citizen what really happens in the current legal system) is being used mostly to sell corn flakes.
Court (and the law) is largely boring. It’s really not much of a spectator sport, and requires a great deal of explanation to make it even reasonably comprehensible to the viewer. Not too many people would waste their time watching the real thing when they could be watching Real Housewives of Centre Street, and not too many lawyer/pundits have the guts or knowledge to accurately explain what’s on the tube.
And cornflakes pay the freight.
This is probably true of many, if not all, professions. Even ones where you’d expect there to be excitement (e.g. police work) there are hours of mind-numbing boredom. But this is an indictment of the writers; not the job. A good writer could make the law interesting, entertaining, AND educational (albeit greatly simplified; but then, people don’t learn how to operate from watching medical shows, either). Only laziness stops ‘reality’ shows from actually providing information.
The problem from a viewing perspective is that if you want to see it “real,” it’s a bore. It you want to juice it up a bit, it’s no longer real. Boil down a case from arraignment to acquittal/conviction to an hour and you would probably get a pretty interesting show. All you have to do is eliminate the 397 snoozer hours in between.
Sir, one of the many things’ I’ve learned about here at SJ & DP over the years is that (sometimes) questions lead to answers. Sometimes a simple answer goes a long way in explaining just what in the hell happened or what shouldn’t have been allowed to. You asked some very good ones and I look forward to the answers piling up. Instead of ‘my’ usual questions, please allow the following to suffice.
When the Brooklyn Legal Aid Society chose to depict a day in the life of public defenders vs. criminal defense as a whole, it drew quite a few questions. No CDL (real or fake) will ever advocate for cameras for the same reasons police use. No one wants the public to ‘see’ exactly how they over-utilize and or abuse the TapOut in lieu of allowing jury trials to verdict or find out some are simply Divorce & Estate specialist dabbling. Which is exactly why, the BLS chose to depict a fake Trial that was void of the real TapOut that would’ve followed and why we won’t be seeing any real cameras, anytime soon.
Inmates’ in holding cells (echo chambers) that are not chatty Cathy’s’ are approached multiple times by attorneys / lawyers and enticed to discuss their case and strategy in the presence of others. Been there, done that.
The only way I knew that ‘it’ was wrong for Confidence to be broken in this manner (business as usual) was to ask everyone, until I finally got the answer from you. Recently, I learned via Mr. B. over at DP, that the courts are allowing MPBs. Mass Plea Bargaining, where multiple inmates are participating (shoulder to shoulder) in one another’s legal matters in front of the bench. Sadly, despite a real camera capturing ‘it’ through the window, no one’s questioning it to the point past blawg / blog posts’. (I wish I could’ve included the link.) *Attorney – Client Confidence is a thing of the past and will eventually affect the profession as a whole in more ways than one. Thanks.
[Ed. Note: While my rules may prohibit you from posting links, they don’t prohibit me. Here’s the link to Mark Bennett’s mass plea post.]
“Did it dawn on anyone that the lawyer should have inspected the crime scene a year ago? Did it occur to anyone that he’s about to go on trial and has no theory of defense yet? He’s first interviewing witnesses the day before hearing and trial?”
Um… did it ever occur to the blog writer that public defenders throughout the nation are pressed into situations like that on a regular? Prosecutors have an entire police department to do their investigations, while public defenders are far less fortunate… Everything is stacked against public defenders, I am not shocked that he was only able to investigate a day before trial. People need to walk a mile in a PD’s shoes before they judge.
Why yes, it did. And it similarly occurred to the many other criminal defense lawyers, many of whom are or were PDs. The reasons are obvious, and yet no one else wrote such a blitheringly stupid comment. That is because such problems are flaws, not features. There’s nothing wonderful about being unable to represent clients properly. A PD isn’t a hero for being overworked. He’s not a star for having failed to investigate. He’s not a winner for having a trial starting the next day and not having a clue what his defense will be.
The point is that this show makes PDs look incompetent and irresponsible. We are painfully well aware that they are doing the best they can under awful circumstances, but that doesn’t mean they’re doing well or good. And this makes you proud.
Many here have walked far more than a mile in a PDs shoes, which is why they would never write the comment you did. The difference between them and you is they have the maturity to grasp that this isn’t something to be proud of, but a disaster.
The problem I have with your original post is that it sounded more like an indictment on that particular PD and, by association, the entire indigent defense bar. But based on your response it’s clear we agree that there are “flaws” that make PD work very difficult. Personally, I think you could have made the same point much more effectively if you bashed the legislators/judges/pols that allow these “flaws” to exist in the first place, rather than saving all your vitriol for the PD(‘s). What’s the matter– are you that afraid of people labeling you a “true believer” or, dare I say, PASSIONATE about indigent rights? I know it’s probably been a long time since you had to slum for 18-B gigs but I know there’s still a small part of you that cares about the indigent folk.
Seriously though. Are you worried that a show that makes this poor guy look incompetent is somehow gonna hurt your business? You think one little known show about PDs is gonna somehow give you private guys a bad name? The vast majority of the public doesn’t even understand that PDs are real lawyers so I don’t think you’ll be grouped in with the legal aid guys. The fact is, no matter how inaccurate or untrue this NatGeo show turns out, it will have little to no bearing on the public’s perception of the private defense bar. The only thing that hurts the privates are…. other privates.
And one last thing. This may just be my inferiority complex, but please don’t speak on behalf of PDs or former PDs. You were never in the fraternity. I have no doubt that you are a far better attorney than I could ever be, but that doesn’t qualify you as an expert to comment on what it means to be a PD. I know that wins and loses mean everything to you retainers, but we don’t count our records like that.
You’ve still got the whole concept ass-backwards. First, my job isn’t to please the sensibilities of baby PDs who are all filled with passion and want the rest of the world to love them and feel their pain. No Evan, you are not the center of the universe.
Second, you knee-jerk rationale that this has something to do with hurting my (or non-PDs) business is inane and clueless. The assumption by baby PDs that the only conceivable motivation of the private bar is making money again reflects your lack of maturity and understanding. You offer no basis for this bizarre assumption, and there is no basis.
Third, had the gist of this show, this Paris Hilton moment for PDs, been to offer a view into the impropriety of overloading PDs with work, preventing them from proper preparation, denying them adequate support, then the gist of this post would have been entirely different. But that’s not what this show was about. This was some punkass opportunity to get on TV and be cool while the content reflected incompetence and irresponsibility. Don’t whine about why someone else didn’t make a bad thing right so you wouldn’t feel like crap about it.
And finally, my bona fides in speaking for PDs far exceeds yours. Don’t assume by the fact that I was never in the fraternity that I haven’t spent a career working with, befriending, training, educating PDs. Not that it matters, but an email from a PD who read your initial comment last night was that you were an embarrassment to the cause.
And if you don’t “count your record” by winning for your clients, then you have no business in the well, no matter who signs your paycheck. You clients don’t care what your title is. You’re their lawyer. Screw your personal “passion” and serve your clients. Otherwise, get out.
Edit: Since Gid has decided to post about this on his own, here you go, straight from the hand of a member of the fraternity.
Evan T’s comment could have been more articulately stated (from Gid’s response):
“I’ll let you in on a secret here: The system is stacked against our clients. Public defenders in high-volume courts will provide ineffective assistance of counsel. There is a workload problem. There is a resource problem. It’s a human resource problem and there are only so many hours in a day. There are inadequate resources, little to no time to study and investigate each case and an immense pressure to keep the line moving. There’s just no way around it.”
Everything else in his article was a digression that sounds like it was written by a State Attorney’s lobbying group.
“So do something about it. Like Missouri did.”
The Missouri case is a paper thin nominal victory (same for the Washington State case). I’d wager that when they look into the economic impact of actually fulfilling caseload standards they will back WAY off of this decision. They left themselves plenty of wiggle room in the opinion, where they seem to advocate for MORE of an assembly line structure to the system. One of their main suggestions is that we should talk to the state attorneys and Judges about handing out more lenient sentences. Why didn’t I think of that? These caseload standards have existed and been exceeded for how long before this ‘landmark’ decision? They will predictably announce that they’ve magically solved the problem without any budget increases. Even more likely, they may do so with budget and staff decreases. Now of course the existing caseload rules will need a layer or two of exceptions, but I get the feeling that’s the ‘plan’ they are currently working on.
I really believe that pd’s should also be able to use the police force to help gain evidence to help the defendant. It’s shameful how in many places even with a good pd they have no help. This also means no time to talk to their client nor the family of the client who maybe calling every other day. Many people can not afford personal lawyers and feel that with a pd they are screwed because of the fact that the pd maybe overworked. I plan to become a lawyer at some point in hopes of helping overworked pd’s get more help or maybe even a private investigator.