People v. State

My latest effort to clarify and simplify what I’ve been trying to say is here, in a comment on a post by Norm Pattis:

When I link Justice with the role of the criminal defense attorney I primarily have in mind our war against the injustices of the State. The State is the largest criminal organization on the planet. Its crimes dwarf those committed by private persons. But yes, private persons commit real crimes and real injustices too. I hate crimes committed by private persons for the same reasons I hate crimes committed by the State. Nevertheless, it is Just that we defend people accused of crimes regardless of their guilt or innocence because . . . “it is better for ten guilty men to be set free than for one innocent person to be convicted.”

The conviction of the innocent is a crime if ever there was one, and I suspect it occurs more frequently than the acquittal of the guilty.

Why do I think it’s important to link Justice with the role of the criminal defense attorney? Because to say “we defend” says nothing. It’s a tautology. We are “crime-fighters.” Maybe by saying so we’ll get more respect, not for our own sakes, but for the sake of a freer society.

Mark Bennett, riffing off a post Norm Pattis wrote about Gerry Spence’s claim that he had never lost a criminal case, muses:

I wonder: what if a criminal defense lawyer took only cases that she could win?

. . .

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I think she’s got a case.

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A lot of people say they hate lawyers. I’ve never been a lawyer’s client or a party to a lawsuit and had to deal with one in that role, so I’m not sure why this is. I assume the haters have their reasons, but I wonder whether their hatred isn’t misdirected. Might they be making scapegoats of mere peons? Might their real gripe be with the legal system itself? Granted, the whole legal system is made up of people who went to law school, but why single out for special scorn those of us who labor at its lowest rung? We’re all responsible for our crappy system, but some of us are more responsible for it than others.

It wears on a person to stand in another’s shoes as his attorney while he gets screwed over by the “system” (scare quotes because there is no “system” apart from the people who make it up). And then to stand in another’s as he gets screwed over, and another’s. The client stands aghast, and how can I, as an “officer of the court,” explain or defend what’s happened? I can’t. You’ll just have to take my word for it when I say these people got screwed, and that it wasn’t just a matter of a close call not going our way. I’m not completely insane. I know when an argument has gone unanswered. It would be bearable if it was simply a matter of a close call not going our way, or if the “blown calls” were isolated incidents, or if there was an affordable way to get a timely and truly objective second opinion. What’s unbearable, and a motivation killer, is the realization that being right doesn’t necessarily matter, even when it’s important. If being right doesn’t matter, then we are all full of hot air, as the lawyer-haters charge.

UPDATE:

Norm Pattis offered a “Word of Encouragement” at his blog in response to this post. I tried to comment on his post, but my comment was a little too long-winded to be accepted as a comment, so I’m posting it here:

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At one table in the Marshall County court was a homeless man with an apparent alcohol problem, representing himself, pleading for the life of his best friend, a wolf hybrid named Shyrkee. At the other table was the attorney for the City of Plymouth, who was asking the court to have Shyrkee euthanized as a vicious animal. The only witness called by the homeless man to testify on Shyrkee’s behalf was the homeless man himself. Testifying for the City were police and animal control officers. At the close of evidence, the city attorney argued: “Someone is going to get hurt bad. . . . On behalf of the citizens of Plymouth, the evidence is overwhelming — they are in danger.”

After weighing the evidence and the arguments of the parties, Judge Robert Bowen ruled . . . for Shyrkee:

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I struggled in this post earlier today with my juxtaposition of the (hypothetical) criminal defense attorney who takes special pride in the acquittal of a “guilty” client and the prosecutor who takes special pride in the conviction of an innocent defendant (e.g., including, and perhaps most typically, a defendant who the prosecutor believes is guilty of something but not the offense the prosecutor charges him with). Even though it was an ancillary part of the post, I went back and forth, editing the juxtaposition in and out, and finally left it in, because it seems the two cases do share and illuminate a common psychological denominator: namely, if as a prosecutor I can get an innocent man convicted, or if as a defense lawyer I can get a client who was caught red-handed acquitted, then I must be a damn fine attorney.

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I’m burning a bridge today. After I posted this comment on Scott Greenfield’s post today about the Slackoisie, Scott posted this response to my comment. Since Scott’s response, among other things, misrepresented a previous discussion we’d had, I replied with another comment, which Scott has since deleted from the comment thread. Scott then sent me the following email:

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Love him or hate him, or love him and hate him, there’s no denying that Scott H. Greenfield at Simple Justice has contributed more substance to the criminal defense practical blawgosphere than any other individual. (I would not have hesitated to use the present tense “contributes,” except that an argument could be made that in the substance department Jeff Gamso in the first year of his blawg’s existence has been giving Scott a run for his money. But Simple Justice has been around since February 13, 2007 — although, interestingly, beginning with a post seemingly addressed to potential clients.) Scott and I have had our issues. See, e.g., here, here?, here, here and here. But even if you’re one of those who believe it’s advisable in reading Scott’s blawg to separate the wheat from the chaff, there’s still so much wheat there that Scott deserves a healthy measure of gratitude from those of us who regularly load up on the carbohydrates he dishes out on a daily basis.

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Gerry Spence claims on his website to have “never lost a criminal case either as a prosecutor or a defense attorney.” Of course, there was the little matter of the criminal case he prosecuted against Ernest Newton, described by Spence in his autobiography The Making of a Country Lawyer at page 329. The jury acquitted Mr. Newton of ten counts but did convict him of the eleventh. However, the appellate court overturned even that count, in what our hero implied was a “frivolous, flighty, featherbrained decision[] clothed in high-sounding language,” on the grounds that the trial court didn’t have (more…)

The Indiana Court of Appeals today reversed the attempted murder conviction and 45-year sentence of an innocent defendant I represented at trial, holding that the trial court should have granted the motion to dismiss by reason of collateral estoppel I filed on his behalf.

I would be hard-pressed to name another man in all of human history whose words and deeds better embody my own ideals as a lawyer and a human being than Lysander Spooner. He was born on today’s date in 1808. Georgetown law professor and Volokh Conspirator Randy Barnett, who owns and operates lysanderspooner.org, offers his birthday tribute here and here.

Read if you haven’t already Spooner’s An Essay on the Trial by Jury, or at least the first chapter, titled “The Right of Juries to Judge the Justice of the Laws.” The simple restoration it advocates would potentially by itself be sufficient to bring to our legal and political system the legitimacy it now so tyrannically lacks. Cf. John Hasnas’ essay The Depoliticization of Law.

From his Letter from Birmingham Jail (April 16, 1963):

You express a great deal of anxiety over our willingness to break laws. This is certainly a legitimate concern. Since we so diligently urge people to obey the Supreme Court’s decision of 1954 outlawing segregation in the public schools, at first glance it may seem rather paradoxical for us consciously to break laws. One may want to ask: “How can you advocate breaking (more…)

. . . who spent 20+ minutes visiting this blog, entered and exited from my last post on whether lawyers should be punished for judging judges, and outclicked on the link associated with Matthew 7:1:

I’d love to know what you think. Feel free to comment. What brought you to this little backwater blog (sitemeter says “unknown”)?

I didn’t know this was a blogging tradition until I read this post by the taxgirl, with whom I share a birthday (today!), so in compliance with this newly-discovered tradition I offer the following ten random fun facts you may not know about me in no particular order:

1. It’s my 40th, so Scott Greenfield’s description of me as a “young” lawyer is highly relative to Scott’s own, shall we say, “maturity.”

2. Like the attorney apparently in over his head defending terror suspect Najibullah Zazi, I’ve been practicing law ten (more…)

Ken at Popehat points out the eerie similarity between a song familiar to many from Sunday School and a song praising Barack Hussein Obama that was recently written, sung, recorded and distributed by a class of elementary school students.

Here’s a lyric from the latter:

He said red, yellow, black or white
All are equal in his sight (more…)

I have an egomaniacal tendency to believe that Scott Greenfield is speaking to me in many of his blog posts. No doubt that’s partly because, as a highly-accomplished criminal defense attorney, so much of what he says is highly relevant to people like me who aspire to become highly-accomplished criminal defense attorneys.

Whether or not Scott had me in mind when he wrote his post today titled The Walmart Lode, it harmonizes with his side of our exchange in the comment thread to my post here suggesting that barriers to the legal profession should be lowered rather than raised. Scott writes in his post today:       (more…)

“I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts.  These are false hopes; believe me, these are false hopes.  Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.  While it lies there, it needs no constitution, no law, no court to save it.  And what is this liberty which must lie in the hearts of men and women?  It is not the ruthless, the unbridled will; it is not the freedom to do as one likes.  This is the denial of liberty and leads straight to its overthrow.  A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few — as we have learned to our sorrow. (more…)