Nov. 4, 2015 (Mimesis Law) — Ed. Note: Scott Greenfield crosses Ken Womble, who went from public defender to start his own small firm, Moore Zeman Womble, in the trenches of Brooklyn, USA.
Q. As you’ve made painfully clear, you started out your legal career with the Nassau County, NY, Legal Aid Society. Why? Were you one of those pointy-headed do-gooders? Did you want to get trial experience? Was that the only job you could get?
A. Not a do-gooder. Not a do-badder either. I was all over the map in college, switching my major from architecture to theater to unknown before landing on Criminology. It stuck. The legal delineation of right and wrong fascinated me but it also made a lot of sense to me. There is a natural logic to basic criminal law.
But when I was surrounded by nothing but theory in law school, I probably saw myself as more of a prosecutor than a defense attorney. When I graduated, I actually applied for jobs on both sides, defense and prosecution. Lucky for me, the first place that decided I was worth paying was the Nassau County public defenders office, and I gladly took them up on their offer. As soon as I got a dose of the reality of the world of criminal justice, I realized that I would have been a terrible prosecutor.
Q. Almost every public defender gripes about the lack of respect shown them by their clients, who call them names like “lemonade” and “public pretender.” Was that your experience? How did you deal with it? Any magic tricks that new PDs should know about?
A. Lemonade? That’s a new one. Look, when you represent thousands of people, you are going to have a mixed bag of performance reviews. I tried as hard as I could to treat the client with respect and most of the time, I got it in kind. When you first meet a client as a public defender, those first few moments are vital. It is your job to set the tone. I like to call it alpha-dogging. You have to let the client know that you are in control. You are the one person standing between them and the government. That takes a badass. You should let them know that you are that badass.
But being in control sometimes cannot overcome the fact that your client is extremely and provably guilty. The most common insult I would hear (usually after delivering less-than-good news) was “You are just working with the DA.” I would let them know, firmly, that I put food on my family’s table fighting against the DA’s Office day in and day out, so don’t come at me with that nonsense.
Some public defenders these days have a tendency to see every client as a blameless victim who must be coddled. No. You must foster an individual relationship with each client according to who that person is. If they come at you with insults because they don’t like you telling them that the video of them robbing the store is going to be problematic, you need to stick up for yourself. How the hell are you going to defend your clients if you refuse to defend yourself? Treat every client with respect, understanding that even under the best circumstances, this person is going through hell. But this ain’t no walk in the park for you either. You’ve earned respect. Demand it.
Q. You’ve written about your experience as Nassau public defender with less than glowing words, blaming management for many of your misgivings about how cases were handled. Was there anything you could do about it as a PD? Should there have been? What options are there for public defenders who want to do right by their clients when management stifles your ability to do so?
A. To be honest, I was a brand new attorney, and when you are a young attorney, you question everything. You don’t know how anything works so most of the time, your head is spinning. You are mainly just trying to not get steamrolled by this system that seems like it will swallow you up at any point. After a while, I tried to talk to my boss about some of the practices I have written about, but when he told me to fall in line, unfortunately, I did (until I quit). He was an attorney who had been around forever and he signed my rather meager paycheck (which I needed desperately), so I backed down out of fear. Fear of losing my job, but also fear that I was not seasoned enough in this game to truly understand what was going on. Unfortunately, from what I have heard from people working there now, that fear is still very much a part of that office.
I admit that I failed a tremendous number of people when I worked in Nassau County. I defended to the best of my abilities, but I wish I had done more to point out how wrong things were out there. As for your “what should public defenders do about it” question, that is so difficult. Public defenders spend their entire workday (and often longer) fighting against cops, DA’s and judges. At the end of the day, they simply do not have enough left to then take the fight to their own management. We ask so much of public defenders in these types of situations, maybe the question is, “what should WE be doing about it.” You can’t swing a dead cat without hitting an attorney organization or a bar association. These groups have been focused on ensuring that police, prosecutors and prisons don’t violate defendants’ rights. It might be time to look at the defense side to see what needs to be done.
Q. After Nassau LAS, you went to work as a public defender at Brooklyn Defender Services, a private contract defender who, some might say, is in “competition” with the Legal Aid Society. Was it different? Were you able to be the lawyer you wanted to be? What was it like to be given the opportunity to defend without anyone telling you to clear your calendar at all costs?
A. It was like night and day. When I got to BDS, it felt like I was a solo practitioner who was affiliated with a bunch of other solo practitioners. Lisa Schreibersdorf, the executive director, was great because she trusted us to be good lawyers. She never went snooping through our files just to make sure we had crossed every t and dotted every lower case j. We each had the autonomy to be the kind of public defender we wanted to be. Everyone worked hard and we all had each others’ backs. But there was never a question that we were doing all of this for the clients.
This kind of environment fostered a sense of camaraderie and an exchange of ideas amongst different styles of lawyering that made BDS a force to be reckoned with. I know there was some bad blood between Legal Aid and BDS from back in the Giuliani 1990s when BDS was formed as a response to Legal Aid’s union strike, and I have even been referred to as a “scab” for working at BDS (usually in good fun), even though back in the 90s I was living in Florida, listening to Smashing Pumpkins and making nothing but good decisions. I would say that these days, the only competition between BDS and Legal Aid is on the softball field.
Q. One of the primary reasons someone goes the public defender route is to try cases, an opportunity that doesn’t present itself very often outside of criminal law. Was that your thing? Your first trial, disaster or fiasco? And over time, did you find your groove trying cases? As a lawyer, is there anything better than cross?
A. Honestly, the idea of trying cases wasn’t even on my radar when I became a public defender. But it didn’t take very long before one came knocking. My first trial was absurd in every possible way. My client was charged with weapon possession. The weapon? A belt buckle with the word “ninja” on it and a detachable (and not at all sharp) throwing star. In New York, it is illegal to possess a throwing star. The whole trial, that actual jurors were forced to sit through, was basically the DA saying that the object was a throwing star, and me saying it was not. My client was convicted, but the judge wisely just sentenced him to some community service (instead of the 10 months jail the DA was asking for). I learned a lot from that trial. One thing I learned was that I hated losing, and the only way I could figure out how to keep that from happening in the future was to prepare more than the other side.
Listen, trial is terrifying, every time. But after that first one, I at least knew I wasn’t scared to drop the gloves and pick a jury. I had a much better understanding of what a trial actually was and over the years, I can definitely say that I became very good at winning trials. The key is, when you are completely prepared for the trial, go prepare some more. You only get one chance to react properly during a trial. If you can’t immediately connect those dots and land that point, the moment is gone forever.
Speaking of cross-examination, I do love me a good cross. For me, though, there is nothing better than crushing a closing. I have had a few closings where I have just shredded the DA’s case to bits. Painted them into every possible corner. There is nothing more satisfying than sitting there during the DA’s summation and having jurors look over at you with an expression that says, “Can you believe this fool is actually saying this?”
Q. Every trench lawyer gets smacked at some point, and usually many points, with a ruling that is just so totally awful, completely wrong, that it makes their head explode. What was yours? Was there one case, one trial, one judge, who made you consider taking the chance of reaching over the bench and taking a good punch? Did you?
A. I have certainly disagreed with plenty of rulings over the years. But nothing makes me crazier than when a judge locks my client up (or keeps him locked up) for no good reason. Especially at arraignments. When a judge takes a story from the DA as fact, in spite of it making no damn sense, and sets bail, I have been known to voice my objection somewhat loudly and colorfully. After one such improper setting of bail (improper because the DA later dismissed this garbage case), I leaned into the microphone (more for visual than auditory effect) and repeatedly demanded that the judge give me one good reason my client was getting locked up. His only response was to order me off the record.
I complied by throwing my files at our innocent clerk (sorry), stating to no one in particular that I had to “get out” of there, and I stormed out of the courtroom to a small but supportive smattering of applause from the audience. This move was henceforth referred to as “Wombling Out.” Hey, sometimes, when a judge wants to ignore all logic and reason, as a public defender your only option is to make sure that no one in that room is confused about your disagreement. But it doesn’t work if you are just showing off. It only works if you are pushed to the point where you can do nothing but wreck the formality of the courtroom.
Q. There came a time, not too long ago, that you gave up the honest virtue of being a public defender in order to earn a living as a private practitioner. What did you think it would be when you decided to leave? Were you thinking, “hey, if those guys can do it, so can I”? Did it turn out to be as easy, or hard, as you thought it would be?
I would say it has been as hard as I expected, but then again, I expected it to be very hard. It was never about what other people were doing, but more about what I wanted for myself. When I first left the public defenders office, I assumed that I would have to learn areas of law that I was not really that psyched about in order to make ends meet. Slip and fall, appeals, matrimonial, etc. The consumer seems to be much smarter than that, though. People have come to me for cases related to crime, police and discrimination. It has been really great to have people contacting me with cases that allow me to be as pissed off about injustice as I was when I was a public defender.
Q. Running your own practice rarely turns out to be quite what one expects. Was it what you expected? Did you realize that every lawyer in a small practice is the boss as well as the janitor? How did you feel when you sat at your desk and the phone was silent? Did you make the right choice?
We (myself and my two partners) got a crash course in business before we ever had our first client. We found an old hair salon space in downtown Brooklyn and spent months basically building our office and setting it up (with a good amount of help from skilled friends and relatives). We learned a lot about budgets, drywall and recessed lighting. But we also were able to fight out a lot of our natural disagreements and then hit the ground running when we opened up shop.
But yes, since we have opened, we have been attorney, receptionist, janitor, everything. Personally, I like the notion of being able to vacuum your own office instead of paying someone to do it. Sure, time is money, but in our first year, the one bit of currency that we have in almost unlimited amounts is time. Money, that’s a different story. You can’t just go to the supply closet and grab paper any more. You are the supply closet.
There have certainly been times, especially in the first few months where if a week went by without any new clients, we were all freaking out. In those early days and weeks, it was the constant fear that you were going to fail and your family would be out on the street. But with each passing month, we are realizing that what we have set up is working. We each put in the effort to become quality lawyers, and now we have put in the effort to build a quality product that has attracted clients. So far, so good.
Q. When Fault Lines started, and you let it be known that you really wanted to become a part of it, what were you hoping to accomplish? I put you through the wringer before taking you on board (with what is now delightfully known as the “Womble Test”). Not only did you put up with it, but you weren’t going to go down without a fight. What pushed you?
A. Honestly, I was a bit surprised that you even responded to me. I knew that I had some thoughts and ideas on criminal justice issues, but I guess the thing that made me reach out to you is that I seem to have an ability to get people as pissed off about something as I am. And I tend to be pissed off about our current state of criminal justice. I had seen you employ that skill masterfully at Simple Justice, and I thought we might be best buddies. But you decided to play hard to get.
Honestly, when you gave me the royal smack down after my first attempt, I was a bit disappointed, but I honestly wasn’t expecting to be taken seriously. When you gave me another chance, I tried to take your advice and make what I wrote matter to people who aren’t me.
Q. Now that you’ve really made a dent with your writing (not to mention come to realize that it’s not all fun and glory), has it been all you hoped it would be? You’ve grown into quite a fiery writer. Do you see your writing as serving a higher purpose? Do you think lawyers have an obligation to illuminate what’s wrong with the system and what should be done about it?
A. Writing for Fault Lines has been immensely stressful and cathartic. Stressful because it is hard work, deadlines and putting myself out there (plus my boss doesn’t mess around with half-assed attempts, I have learned). It has been cathartic because it has given me an outlet to vent about all the things that are wrong with criminal justice. I recognize that people might disagree with what I write, but I do my best to make sure that what I say is honest and logical.
I won’t speak for what I think other lawyers should do, but I would like to think that my writing has allowed some people to see the reality of our policing and our justice system more clearly. We all wish cops and prosecutors were honest. But if wishes were fishes, right? We cannot force honesty upon people, but we can at least open our eyes to the possibility that cops and prosecutors will lie, cheat and steal to get a conviction. Law enforcement has spent a long time bullying us into unequivocal support. I am trying to do what I can to speak for the other side.