I don't know where or when it started. I'm sure it started its demise before I was around, hell, Atticus Finch was never the darling of society, but the criminal defense function, not just the lawyers, has reached a level that goes beyond "unwelcome."
I have been thinking about this for a while now.
At our core, we, the criminal defense lawyer, have the following philosophy:
We exist for the purpose of making sure that the government, law enforcement, and those who would advocate to take away liberty, do so by presenting evidence that proves each and every element of a crime, beyond a reasonable doubt. We study and investigate whether any search or seizure of our fellow man was, under the Fourth Amendment, reasonable. We try to discover whether our fellow man was advised of his right to remain silent, and if the government alleges that he waived that Constitutional right (number 5), we investigate whether that right was waived freely and voluntarily. We act as the Sixth Amendment, providing the required effective assistance of counsel. We do not draft contracts, wills, litigate monetary disputes, or assist in the breakup of families. We assist those who are required to have counsel under the Constitution. Finally, we advocate against cruel and unusual punishment, something we are all protected from by the Eighth Amendment.
Four of the first ten amendments, otherwise known as the Bill of Rights, were written for the criminal justice system. To sum it up, the criminal defense lawyer mirrored the philosophy behind the creation of America - a mistrust of government, a method of redress, and liberty. The criminal defense lawyer was given important powers to question government and assure that any attempt to take away liberty was done with strict scrutiny.
Now I know, back then they didn't have cocaine or ecstasy or airplanes or grow houses or terrorists. I know. They didn't have parents or teachers who relied on the juvenile justice system to raise their kids and teach them discipline. They didn't have 24 hour cable news, and they didn't have Law & Order running 6 hours a day teaching us that prosecutors and cops were angels, and criminal defense lawyers were the devil.
I wasn't sure how to write about this, and then of course, Gideon took care of it for me.
Forgive the length, but it's that poignant:
These are the rights of individuals – all individuals and checks against the power of the large governmental entities. The Constitution drew a line and on the site that was protected were placed the flesh and blood individuals, the citizenry and on the side that was being warned and whose authority was being severely limited was the abstract, nameless, faceless Government.
What a beautiful concept: we are individuals first and as individuals, we have rights that will not be subordinate to those of an ever-changing abstract concept.
The concept is dying a quick and painful death. It took only 200 odd years for the pendulum to have shifted completely in the opposite direction. By attrition, or force of sensationalism, or crowdsourced fear, the line drawn by the Constitution has turned around and is now facing those very individuals it sought to protect. The idea of individual liberties is so foreign to most, that comes as a surprise to many that the founders fought and fought hard for them.
These protections and rights exist merely as a thorn in the side of the righteous who seek to punish the evil. US vs. criminals. Speeding this disaster is the learned hand of those who are in charge of interpreting and enforcing the august protections enumerated and implied by the Great Document.
Jurisprudence, over the years, has taken an increasingly narrow approach to individuals’ rights, especially those charged and convicted of criminal offenses. The scope of acceptable intrusion by the Government has increased dramatically over the years and the zone of protection surrounding each individual and his possessions has correspondingly narrowed.
Cops want to use collective knowledge to deem that someone carrying two cell phones is a drug dealer and thus about to embark on a baby-killing spree? Allowed. Cops want to use lies and trickery to trap individuals into confessing to things they may or may not have done? Allowed. Prosecutors make impermissible remarks to juries and comment on a defendant’s exercise of his rights? Frowned upon, but the guy was guilty as sin anyway, so it doesn’t matter.
I fear that if one were to embark on the task of writing a book that enumerated the remaining fundamental protections, it may be just long enough to fill Twitter’s 140 character requirement. The Twitstitution.
Really, what 4th amendment rights does one have anymore? Police have to get a warrant? Well, not always. And even in cases where they really should have, it’s mostly okay. What if the prosecutor circumvents the probable cause requirement and adds charges later that aren’t supported by the evidence? Too bad, prove it at trial.
The role of the defense lawyer has gone from Constitutional law expert to mitigation specialist. Cases are won and lost on the facts, not the law. The law is dead to us. A lifeless corpse that taunts us and obstructs us in our efforts to keep the Govermental power in check. There is no longer any confidence backing up an assertion that an act by the police is “clearly illegal”. Frankly, there is no such thing anymore. Courts will find a way to condone whatever improper action we complain about.
“But he’s only 16, judge”, “he didn’t really threaten the use of a gun”, “he’s only doing this because he has a massive drug problem”.
Go to any court and sit in on any pre-trial negotiation and you’ll hear most, if not all defense lawyers use variations of the above. Mitigation specialists.
That’s the only thing left to us: harkening back to the very individuality that the Constitution sought to protect. Each person is an individual, but instead of talking in terms of protection, we now speak of punishment. Each individual is different and must be punished differently.
Guilt upon arrest is but a foregone conclusion. All that remains to be determined is the term. We don’t practice law anymore; there is nothing noble left. We mitigate.
The law is dead and slowly, it’s killing us all too.
A frequent quip is that if the Constitution were to be drafted today, the 4th, 5th, 6th, and 8th Amendments would look much different, if they were written at all. More frequent is the cries of those who rail against the criminal defense function, until they are arrested, or worse, treated rudely by a police officer. At that point, they "know their rights." So they thought.
Sadly, I don't think we will ever go in a different direction. We see the criminal defense lawyer as an obstructionist, a delay tactic, and a waste of taxpayers money if it's a public defender. Newspapers relish their websites that immediately post the photos of the "presumed innocent" recently arrested locals, and the topic of going from 200,000 to 2,000,000 incarcerated in America, is a cocktail party "oh well."
With all this, the role of the criminal defense lawyer, while diminished by courts and the public, remains what it was always designed to be - an advocate for an individual for whom the government seeks to take away liberty. While we may lose the battle to convince society, other than a few who claim to understand, and do, of our importance, we will never have any less importance to the person standing next to us in an American courtroom.
One day society may catch up, and if not....
Brian Tannebaum is a criminal defense lawyer in Miami, Florida practicing in state and federal court, and the author of The Truth About Hiring A Criminal Defense Lawyer. Post to Twitter
13 hours ago