Sunday, August 29, 2010

The Stale Anonymous Argument Against/For/Criminal Defense Lawyers

My post below on The Core of a Criminal Defense Lawyer was about recent thoughts I've been having about the genesis of my career and a desire to spend some more time going back to basics and representing indigent clients. That was the point. The point was not that I am tired of private practice, or that I want to go back to being a public defender, or as my anonymous commenter thought, that I had a conscience problem and was maybe thinking about not being a criminal defense lawyer.

But to my anonymous commenter, referred to as a "dickwad," by a fellow criminal defense lawyer, and more appropriately nicknamed as "typical uninformed but opinionated pontificator," the post was me questioning my role in society.

This is what we call a "teaching moment."

Let's look at anonymous' thoughts:

First, he suggests a career change for me may be a good thought:

Nice way to assuage the old conscience. I have a friend who spent some time as a defense attorney. He then became a prosecutor, taking a major pay cut in the process, but he can look himself in the mirror far more easily.

You know, I've been doing this for a while, and I've seen plenty of mirrors. Never had an issue taking a quick look. (The "sleep at night" comment is below, don't you worry readers)

Anyway, the comment generated some strong words from fellow criminal defense lawyer Mirriam Seddiq:

Anonymous is a dickwad. His friend wasn't making a dime which is why he went to be a prosecutor. Probably sucked at working for a firm, or for himself. Probably was a shitty defense lawyer since he didn't have anyone barking out orders or telling him what to do. Probably fucked up his clients rights on a daily basis, hence the inability to look himself in the mirror. Clearly didn't believe in our constitution. We are better off without him on our side.

Mirriam colorfully makes the point that criminal defense is not for everyone. For that matter, either is being a mortician, window washer (watching them certainly gives me the heebee jeebees), or prosecutor (there are some who can't see spending their days trying to put people in jail.)

All of this is OK. I can't remember a week where someone didn't read from the script and say "I could never do what you do."

I could never be a divorce lawyer - spending my days hearing bullshit complaints about kids and furniture and money, and being responsible for splitting a family apart. I could never be an insurance defense lawyer - spending my days trying to deny sick people medical care due to technicalities in policies.

It's really OK. Not everything is for everyone.

After Mirriam's comment, the bold Anonymous said (in part):

I can't tell you how successful he was in defending his clients, as we moved to different cities when we started work. I can tell you what he said to me a social gathering, that since he became a prosecutor he makes far less money, but has a cleaner conscience. His problem was that most (not all) of his clients were factually guilty of what they had been charged with. If that makes me a dickwad to say, that is your opinion. If you want to believe that every one of your clients, or even a majority of them, are factually innocent, then I have some desert swampland to sell you.

Now let's stop right here.

Mirriam never said anything about factual innocence, or her belief that all her clients are innocent.

Here we realize that Anonymous has missed the point, not that this should stop him from opining.

Let the teaching begin.

Anonymous (not sure if that's your first or last name), factual innocence is not an issue in most cases. See, what we do is investigate the case and determine whether there are grounds to argue that the Constitution (which I'm sure you've read) has been violated. Most defendants are found or plead guilty. Many guilty defendants that plead guilty, do so with the advice of a criminal defense lawyer - the same people you claim may have issues with their conscience or looking in the mirror. Sure, there are defense lawyers that believe that all their clients are victimized, but there are also prosecutors that believe everyone they charge is guilty. Really, it's true.

Anonymous continues:

I understand the need to have rationalizations for what you guys do. We all need to sleep at night peacefully. Heck, I even support having criminal defense lawyers do their best for their clients. It keeps the state honest and makes the government really prove guilt. That still doesn't prevent innocent people from going to prison, but it hopefully slows the process. But, really at the end of the day, if you perform brilliantly, and get someone who you know actually did commit some heinous act acquitted, does that make you feel good? Especially if your client had an innocent victim who will now not get justice through the legal system? Yes, your job as defense counsel IS needed, but there are a lot of unwholesome tasks that need to be done in our society. That they are needed doesn't make them good. But heck, if you can make a fortune at it, then rationalize away about government tyranny. Just remember that some of your clients have real tangible victims, with lives destroyed or damaged by the people you defend. Those victims are not "the government". Those victims are little children, raped women, or people who have died because of something your client did. The state doesn't always charge your clients just because it is amusing or politically expedient, although that DOES happen sometimes. Sometimes your clients get charged because, amazingly enough, they actually DID hurt or kill another human being. And if you are successful, that harmed human being will never get justice within the legal system. That sure is something to be proud of.

Rationalizations? I have none. I do what I do because I believe in the Constitution, I believe in this country, and I believe that anyone charged with a crime deserves a good defense - even you Anonymous who thinks that we serve some purpose when we think and do what you deem appropriate.

And he (or she) continues, having re-written the same comment, but with some changes:

Yes, you can make vast sums of money defending guilty people who can afford your fees. No, not every crime has a victim who is badly harmed. Not every suspect needs to get hammered with prison time. But, there are cases where if you do succeed, an innocent victim who your client raped, killed or otherwise assaulted, does not get justice. That isn't "the government" against your client as the rationalizations you have says. That is innocent human being, harmed or killed by your client, who has no legal recourse because you did your job well. I doubt if I could sleep well at night knowing that because I did my job well at 200$ per hour, a rapist or killer walked free. If fact, I would need a very strong fortress of moral excuses. But then again, I am not a defense attorney either.

"Vast sums of money." That's funny Anonymous. I know plenty of poor criminal defense lawyers. A small minority of people in every profession make "vast sums of money," but I know it makes you feel better to wrongfully think that we do this for the "vast sums of money." People don't like people who make "vast sums of money," so if you can throw that into your argument, it riles up the folks out there that think "all lawyers are rich greedy bastards."

And yes Anonymous, we know you are not a defense attorney. We all sleep better at night knowing that.

Then, Anonymous looks like she (or he) may actually be thinking while typing (a rarity amongst anonymous blog commenters), he, (or she) does the 'ole "hey, I respect what you all do and so......:

It isn't that I don't see a place for a high quality defense bar. I would like to see public defenders with far more funding and manpower. Without you guys, far more innocent people would face legal sanctions. What I object to is this pious "noble paladins defending a bunch of doe eyed innocent victims targeted by the evil government for no reason" rhetoric. Your job is to make the state prove every element of its case or at least to obtain the best deal possible for your client, but the fact remains that most of your clients ARE guilty. To rationalize otherwise is just to assuage your own conscience.

If you're still wondering when anyone said anything about factual innocence, the answer is still, never.

Now let's make something clear - Anonymous has a line of thinking. One we're heard before, probably 3 days ago at a cocktail party. Anonymous thinks we need good defense lawyers to make sure the government does their job. He thinks this is an important part of society, except when we win and people who rape and murder walk free. He thinks the system should provide trials and due process, as long as no guilty people go free.

In a perfect world, all guilty people would be convicted and all innocent people would go free. In a further perfect world, police officers wouldn't force innocent people to confess to crimes they didn't commit, wouldn't violate the Fourth Amendment (I linked to it Anonymous in case you wanted to take a gander), and eyewitnesses would never mistakenly identify the wrong guy.

What makes Anonymous a pillar of society is that if he was arrested and committed the crime, he would immediately plead guilty, even if a lawyer told him that the police made a mistake and due to that mistake he could go free instead of spending his life in prison for the harm he caused his victim.

Anonymous does make exceptions. Rape and Murder are crimes for which we criminal defense lawyers should be ashamed to take victories when the client is guilty. But when a client is guilty of getting into a 4,000 pound moving machine and driving drunk - getting people off is something to cheer:

Let me cite an example of a good criminal defense attorney I know. He was a cop who was an absolute wizard at racking up many airtight OVI (drunk driving) arrests. He retired, went to law school...and now has a practice that mainly defends drunk drivers. He is very good at it and makes a boatload of money. He has a good success rate defending his clients as well. I once charged one his clients with OVI and he got it reduced to a 100$ traffic fine for a non-OVI moving violation. This client was wasted and even blew a .10 BAC, but that is good legal talent at work. It was awesome to behold. If I am ever charged with OVI I know who to hire. But he is under no illusions about his clients' guilt if you talk with him "outside of school." If you are charged with OVI, this is the lawyer you want to hire. Not because he believes all the pious BS rhetoric about his "client being victimized by the state for no reason", but because even if he knows you were totally wasted behind the wheel, he has the legal skills to give you a great defense. If you pay him enough he will use those skills at your behest.

This is a perfectly honest and mercenary way to make a living, and it avoids the rationalizations.

Anonymous believes we rationalize, that we do our jobs by believing our clients are innocent and that the government is victimizing our clients. He is like that juror who says they "can be fair," but is really looking at the defendant during jury selection and saying "can I have the verdict form now?"

I appreciate people like Anonymous. There is no better way to educate people about the role of a criminal defense attorney, then to debate those who claim some understanding of what we do, when they have none.

Old, stale, transparent.

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.Share/Save/ rules Post to Twitter