In a series of highly controversial posts at Fault Lines, former Nassau County legal aid lawyer, Ken Womble, has exposed a failure of significant dimension in the representation of the poor in one of the wealthiest counties in the nation. There have been three reactions to these revelations.  For those on the outside, it’s been one of shock and disgust, as the bubble of competent indigent defense unceremoniously burst.

On the inside, however, the reactions have been far more problematic. Some have applauded the effort to bring to an end the “way things were always done” in Nassau County, who were as disgusted as Ken at the selling out of indigent defendants to keep the system grinding. Indeed, the clearest demonstration of this support was shown in the election of union officers, shortly after Ken’s disclosure, where the old-time insiders lost decisively in favor of the new lawyers who supported change.

But then there were the sycophants, the ones dedicated to pulling whatever they could find out of their butts to defend the institution, its management, the perpetuation of doing business the “way things were always done.”  Some did so to support personal friends at the expense of the poor. Some did so to protect their resumé, so as not to diminish the marketing value of their experience. Some did so out of some misguided support for the institution of the Nassau Legal Aid Society.

There is a long-held belief that there is strength in numbers. It’s the notion behind unionism, that one person may be incapable of taking on power, but that the synergy of the group has the ability to move mountains.  And indeed, this is true, as the history of unionism has proven.

But there is one requirement that must be fulfilled before the strength in numbers applies. The group must have the guts to stand up to power and act.

Another concept, group dynamics, must also be factored into the mix before one leaps blindly at the assumption of group power. The elements of group dynamics give rise to the opposite of strength, weakness. When cowardice permeates the group, a sense of failure and defeatism, then the same forces that galvanize strength in the face of power can produce a group so afraid of challenging the status quo that it not only becomes paralyzed, but internally rationalizes its cowardice so that the members of the group feel secure that cowardice is the right answer.  After all, the rest of the group agrees that they should be scared, so they’re not alone.

This appears to be what has happened in Nassau County, and elsewhere.  And indeed, the “and elsewhere” part of the equation further bolsters the security of the group in believing that its failure isn’t unique, and therefore can’t be wrong. Or at least, the culpability for cowardice-based failure is diffused among the other groups who are similarly cowardly. Cowardice loves company.

In some respects, the reaction of the sycophants is understandable.  It’s hard and risky to fight power.  When the district attorney demands that defendants waive the rights afforded them by the law or they won’t engage in plea negotiations, the DA holds a big bludgeon over the heads of indigent defendants. There is no law requiring prosecutors to offer plea bargains, and so they can be withheld at will. Nobody can legally force a prosecutor to offer a deal.

And it’s often in the defendants’ best interest to have a plea bargain on the table. Not only does this provide an option to conviction and sentence at its most extreme, but it’s very much a part of how the system is conceived, with Draconian sentences employed to force pleas rather than go to trial.  The courthouses aren’t big enough to handle all the trials that would otherwise be needed.

This often gives rise to an argument by the unwary that if institutional providers took a stand, forced every case to trial, the system would collapse and they would be capable of undermining arrogant prosecutorial fiat. It’s probably true, but it’s ethically unacceptable. Such a scheme ignores that some defendants, perhaps many, would suffer should such a group action be undertaken by being denied the plea bargain option.

Some cases would go to trial, and some defendants would be sentenced to life plus cancer, all in the name of the cause rather than in their individual best interest.  It may well be argued that since they’re not doing a good job now, at least doing a poor job with a respectable end game makes more sense. Unfortunately, it’s hypocritical to suggest replacing one failed approach with another that also stinks of selling out defendants, even if it’s for a good cause.

So does that make the institutionalized defeatism the only response?  They’re too powerful, there’s nothing we can do. Hardly.

First, as was made conclusively clear in Ken’s magnum opus, the group has crafted procedures that deny defendants accurate information and the ability to make an informed decision as to whether to fight or capitulate. So what if Nassau Legal Aid management believes capitulation is the safest course of action? This isn’t their lives, but the lives of their clients. They don’t get to deceive their clients in some paternalistic delusion that they know better. Tell the truth. Give the defendants accurate and honest advice, and let the clients decide their fate.

Second, fight, and then fight some more. Make motions, bring writs, challenge power at every turn. Argue to judges who don’t want to hear it and will try to shut you up. Then do it again. Sure, the work is hard and resources are limited. And sure, there will be rejection and failure, as changing a culture of defendants being screwed is no easy task. But that’s the life you chose. That’s the job of indigent defense. There are public defenders who have gone to jail to protect their clients.

Third, be hated. The cowardice of capitulation is grounded in trying to “get along” with the other players in the system.  If you fight, make trouble, piss off the prosecutors and judges who ram down your throats a system that grinds the life out of your clients, the others will be angry with you. They won’t invite you to their sleepover parties. You won’t get an award, or even a pat on the head.

Too fucking bad. The criminal defense function was never intended to make you the popular kid in the courthouse.  It’s our job to be hated if that’s what it takes to defend our clients. Defendants are hated, and so are we. If that makes you uncomfortable, then you’re in the wrong line of work.

And finally, have some self-respect. If you need this to be explained to you, then you have no business being a criminal defense lawyer.

While this may not be a guaranteed prescription for success, there are no guarantees in the law. But at the barest minimum, you will have recaptured your lost dignity and done the one thing demanded of every criminal defense lawyer: you put your clients’ interest ahead of your own. Doing anything less is not merely unethical, but abject cowardice. Reject the strength in numbers that allows you to believe that you are right to accept defeat and capitulate to the prosecution. End the failure. Fight.