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For the sub-class of people known as criminal defense attorneys, these are two unescapable questions. I'm still a baby lawyer, six months short of graduating and probably a year short of actually representing a person in court. What this means is that I've encountered this question not from a person looking to learn something about what's driven me to hang with accused criminals for years; rather, I'm asked this question at the front door. In job and internship interviews, the central inquiry typically finds its way into the conversation sometime after the opening pleasantries and sometime before they ask me why I spent my first summer working for a baseball team.

"How can you defend those people? How can you defend someone you know is guilty?"
Though these individual questions are often paired, and though the inquiring party typically thinks they mean the same thing, my first thought is to separate the two. Because in my mind, the two questions ask two very distinct things and demand two very distinct answers.

For the longest time, my answers to these questions have been stock-quality. Nothing was technically wrong with my answers, and they've usually been what the asker has wanted to hear. I've failed many times, though, to communicate the core concepts that drive me to defend the accused.

My situation is somewhat different from the average person on the criminal law track. My passion goes beyond the simple representation of people charges with crimes. Instead, I'm driven by a passion for the problem of inadequate indigent defense. Across much of the country, and especially in the deep South where I've spent most of my life, the problem of inequality within the justice system is largely endemic. Too often, these states defile decent notions of justice by fast-tracking the poor through the legal system without proper representation. It's a curious policy determination - decisions, made largely by ego-driven and self-important lawyer-types, which often fail to acknowledge the importance and necessity of quality representation. This leads to the obvious conclusion - these policy makers understand the importance of a good lawyer for every client; for the poor, though, they just don't care.

The result should be predictable for anyone who's paying attention. In states across the South, many court-appointed attorneys answer the "how?" question with a series of unsavory answers. How do they represent these people? If these people answered honestly, they'd tell you that they don't. Some, like Joe Frank Cannon of Texas lore, sleep through their cases, even as the district attorney argues that the defendant should be given the death penalty because his homosexuality would make prison something closer to a vacation than a punishment. Others show up to court drunk or high. Defendants in Texas have filed actual appeals to argue whether a sleeping lawyer was legally distinguishable from a lawyer trying a case under the influence of cocaine or hard whiskey. In other Texas appeals, the issue at hand was whether the defendant's attorney slept through any of the important parts of the case. When a man's life is on the line, it is difficult to envision a part of the the trial that might be deemed unimportant.

These examples come from capital cases, too, where the end result might include a man strapped to a gurney. The representation is often no better in run-of-the-mill cases, where court-appointed attorneys often meet their clients for only long enough to advise those clients to take whatever paltry deal the district attorney is offering that day. The attorneys are only a part of the problem. There's no denying that it takes a special kind of human torpor to sleep through proceedings that might mean death. The system itself empowers these listless attorneys through a woeful commitment to funding. In some states across the South, court-appointed attorneys are paid less per hour than a large corporate firm's paralegal. Worse still are the hour limits - many states limit the number of hours that an attorney can bill to the state. Imagine a lawyer given only 20 hours to investigate a case, interview witnesses, write his briefs, and otherwise prepare for trial. Now imagine that you are the defendant, and the state is seeking the death penalty in your case.

These systems promote poor lawyering and they lead to waste. Even the most skilled attorney could not prepare an adequate defense under the current constraints. This means that the expected performance from these attorneys is so low that it might incentivize attorneys to spend even less than their allotted hours on the case. An uncommitted laggard might reason, "If I'm going to lose anyway, and they are holding me to such a low standard, then what difference will an extra fifteen hours make?"

Lately things have been changing though the changes aren't happening quickly enough. More states and counties have established public defender's offices, a more expensive response that produces better results for indigent clients. These jurisdictions have finally discovered what others have not - that without the funding and support of the state to offer the defense some of the opportunities afforded to the prosecution (investigative services and expert witnesses, for two), an indigent person has little chance at trial. As civil rights attorney Bryan Stevenson once said, "In many places in America, it is better to be rich and guilty than poor and innocent."

The problems in indigent defense represent a real constitutional crisis. The guarantee of a fair trial includes, implicitly, the guarantee of counsel. In its holding in Gideon v. Wainwright, a unanimous Supreme Court held that states must provide counsel to those who cannot afford it. They left much power to the states to determine how they would provide that counsel, and took steps to destroy the right to adequate counsel in later rulings. To understand the problem, one must understand Strickland, a Supreme Court case that defined the obstacles faced by a person asserting an ineffective assistance of counsel claim. Without venturing into the murky legal details, I will just say that the Court established a barrier so high that even egregious examples will be deemed effective. Under Strickland, a lawyer who raised zero objections during an entire trial was found not ineffective. The same was true for an attorney who began his closing argument by noting, "In light of the overwhelming evidence against my client, I have been trying to find..."

So how do I represent those people? This question asks me to tell you why I disagree with the judgment of those states who have determined that upholding sixth amendment protections is not worth the effort. I previously quoted Bryan Stevenson, and I believe his words ring truer than most:

"I believe that each person is more than the worst thing they have ever done."
We are quick to slap labels onto people accused or convicted of crimes. Some are mundane and purely descriptive - thief, murderer, fraudster, drunk driver - while others are more troublesome - criminal or animal. Our collective mindset sees sees the criminal as a sub-class of human or in other words, a status. It's more aptly just a behavioral label. These are human beings who have made mistakes. In some cases, they are human beings who have made horrible mistakes and those people must bear responsibility. But there are reasons why people make mistakes. Many were afflicted with obscene levels of hope-destroying poverty. Many others were beaten or abused in their childhood. Most come from broken homes. A large percentage have some combination of these issues. It is an ugly reality that's often ignored by those who want to create a convenient criminal sub-class in their own minds. The idea that criminals might have been law-abiding citizens under different circumstances is scary because it provides for a collective blame mechanism. If we could have intervened, and we didn't, then we are in many ways blameworthy for the very crimes we condemn.

I defend "those people" for the same reason I defend the rights of the poor and disenfranchised in other ideological pursuits. Mostly it's because they are the systematically disenfranchised who society rarely cares about until their crimes bring them out of the shadows and into the light. While I'll also spend my time fighting for policies that help these individuals avoid a scenario where they ever need someone like me, I can't watch idly while some court-appointed attorney employs a snooze and lose strategy.

To me, the more interesting question is the second - how do you defend someone you know is guilty? As I mentioned before, I believe that most people who present this two-punch combo mean roughly the same thing with every question and that, unfortunately, confirms my suspicions about the realities of our "innocent until proven guilty" maxim. But these questions are fundamentally different. Not every one of "those people" did it. So how do you rationalize defending a person who you know "did it?"

The answer is at odds with much of the legal writing that I've studied on the topic. Many writers throw around the word "guilty" in a sense that I deem inappropriate. Richard Posner, one of the smarter federal judges on the appeals circuit even argued that under a more dedicated system of indigent defense, more "guilty" defendants might be found not guilty. Though I respect Posner's reasoning on economics and even statutory interpretation, I find the implications of his statement troubling.

The term guilty has a specific legal meaning. Even more so, the phrase "the jury finds the defendant guilty" has its own power. Implicit in our system are certain policy judgments. We believe that it is only appropriate to punish conduct when that conduct can be proved beyond a reasonable doubt in a fair, adversarial trial. There is a reason why the jury does not return a verdict of "He Did It!" Just doing it is not enough. A person must commit the act with the appropriate mindset. And unless the state can prove, through the medium of a fair trial, that the defendant possessed all of the relevant elements, there is no guilt, even if the person "did it." This system is in place for a number of reasons. Specifically, it's designed as a limit on the police power of the state and as a safeguard for those people who might be wrongfully accused. In a system such as ours, which relies so heavily on unreliable evidence and human judgment, these safeguards are more than necessary.

When someone asks me how I defend someone who I know is guilty, I argue that their scenario is largely impossible. Because without a fair trial that provides the defendant with a conscious, resource-backed, and motivated lawyer, there is no legal guilt. Without the commitment of the state to protecting the sixth amendment right to a fair trial, not even the jury findings of guilt hold any legitimate meaning. Without the effective indigent defender, neither side can engage in a process that rises to the levels of justice that our society believes it has. Unfortunately for too many, today's system is one designed so that the poor are marginalized from the beginning of their lives to the often tragic end.

Originally posted to Coby DuBose on Criminal Injustice, Race, and Poverty on Thu Dec 20, 2012 at 12:05 AM PST.

Also republished by Community Spotlight.

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Comment Preferences

  •  Tip Jar (110+ / 0-)

    "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

    by Grizzard on Thu Dec 20, 2012 at 12:05:44 AM PST

  •  Anyone could be... (7+ / 0-)

    ...worse than the worst thing he's ever done, just as easily.

    Anyway, very interesting diary.  

    Preparing for the Mayan doomsday prophecy by hastily trying to get in the good graces of snake-bird god Q’uq’umatz

    by dov12348 on Thu Dec 20, 2012 at 12:18:16 AM PST

    •  Probably true (21+ / 0-)

      But I draw an important distinction. Notice I didn't write that every man was "better" than the worst thing he has ever done. The quote stuck out to me because he notes that every man is more than the worst thing he has ever done. Implicit in that is probably what you wrote - a person could be even worse than that. But at the very least, he is more than his worst act. To me, this quote is about seeing the humanity in the accused criminal despite whatever action has brought him into your office. It's about an understanding that, even though it's easy to use labels that simplify him, this person is just as complex as anyone else.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 12:21:55 AM PST

      [ Parent ]

    •  how is that logically possible? n/t (6+ / 0-)

      "Okay, until next time. Keep sending me your questions, and I will make fun of you... I mean, answer them." - Strong Bad

      by AaronInSanDiego on Thu Dec 20, 2012 at 02:54:51 AM PST

      [ Parent ]

    •  That's not the point (2+ / 0-)
      Recommended by:
      Grizzard, mythatsme

      The quote is not "better than the worst thing he has ever done" but "more than the worst thing he has ever done."

      In the capital cases to which Bryan was referring in the quotation, at the conclusion of the guilt phase all the jury has heard about is the crime itself-- almost by definition the worst thing the defendant has ever done.  At the penalty phase, the question is not whether the person is guilty of murder, but whether he should be given the death penalty or life without parole.  Defense counsel has an obligation to present mitigation evidence of his family and background in order to make the jury understand that he is a human being, not some cartoonish Hannibal Lecter-like monster, i.e., to show that the defendant is more than the worst thing he has ever done and thus merits life, not death.

      •  Any given person in a capital case... (0+ / 0-)

        ...could be a monster as well.

        Ironically I'm for life without parole because I see that as worse than death.

        Of course defense counsel has their job to do.

        Preparing for the Mayan doomsday prophecy by hastily trying to get in the good graces of snake-bird god Q’uq’umatz

        by dov12348 on Thu Dec 20, 2012 at 11:37:30 AM PST

        [ Parent ]

    •  I have represented the worst (1+ / 0-)
      Recommended by:

      and have been very glad when I lost.  When you start out I think you try and see the best in people - but then you start to see the truth.

      Which is that many aren't better than their worst, they are defined by it.

      I have been a prosecutor in a Capital Murder case, I have defended the mentally ill in commitment hearings and in criminal court.

      I will say this: I slept better as a Prosecutor.  I have defended people I damn well  knew were guilty, and if it doesn't bother you to see them win you are a very lost person.   When you see a victim that will not get justice, it should strike you to your very core.  The last part of this diary is mostly nonsense - rationalizations that are mostly just an excuse not confront the reality.  Guilt exists as more than a legal definition.  There does exist a knowable truth in many cases, and when that truth is not reflected in the final judgement it should bother the hell out of you.

      Criminal law is hard.  In a very real way I don't think people who aren't criminal lawyers are really practicing law.  It is in criminal court that notions of justice and of good and evil are determined.  I always find it funny when some big firm lawyer starts talking about some big M&A deal as if it was so damn important.  I tried cases on daily basis that were more important than anything they did or will ever do.  Now I am myself back in the large firm environment (I began life in a large New York Firm) and my day is far easier than it was when I was in criminal court.  No more do I think about what justice means.  

      But the truth is that what I do on a daily basis now matters far less than when I was in criminal court.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Dec 20, 2012 at 09:03:24 PM PST

      [ Parent ]

  •  I had a friend about 20 years ago (32+ / 0-)

    He got his law degree and spent some time as a public defender. He said two things that stuck in my mind:

    1)    When you’re a public defender you find out that most criminals are really really stupid. They get caught by the police because they’re often not very good at thinking things through.
    2)    But anyone accused of a crime is presumed innocent until proved guilty. And everyone deserves the best possible representation in court (not just rich people).

    He pointed out that the police (and prosecutors) sometimes stretch or bend or break the rules, and in those cases, you may have a criminal (who did break the law) who is found not guilty because the police broke the law to catch him or her. Plus there are sometimes mitigating factors.

    Lawyers serve a purpose. They do good things, even if their client is found guilty.

    “If you misspell some words, it’s not plagiarism.” – Some Writer

    by Dbug on Thu Dec 20, 2012 at 01:50:06 AM PST

    •  at times, it is a rearguard action (7+ / 0-)

      for example where your client is found literally holding the smoking gun and you are working to either save him from the death penalty or perhaps make him eligible for parole at some point or lessen the charges against him.  The attorney's goal is to get the best possible outcome for his client

      •  One reason (0+ / 0-)

        I left the Prosecutor's office was due to the absurd punishment handed down in drug cases.  It really bothered me, and in the end I couldn't do it.

        You can do a lot of good as a defense attorney - I got people out who didn't belong in prison and I won the release of people in mental institutions largely because they were a nuisance.

        I would be lying, though, if I didn't say that one reason why Defense work in the main didn't bother me is because I could count on one have the number of cases that I thought I should have lost that I didn't lose.  

        The ones that I did win that I shouldn't bother me to this day.  I well remember looking into the eyes of a victim in one case: it is not a look I ever want to see again and not one I will ever forget.

        The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

        by fladem on Thu Dec 20, 2012 at 09:10:47 PM PST

        [ Parent ]

    •  This. (13+ / 0-)

      My husband is a criminal defense attorney, going on 23 years now.  This is what we tell people.  Everyone's rights are important, and the rights he is defending are yours.  

      The other thing I find amazing, is how many people comment on his career choice, yet I cannot tell you how many late night calls we get, Um, I've been arrested for (fill in the blank.. DUI, drugs, whatever),  what do I do???  

      •  My son now in high school (4+ / 0-)

        has expressed an interest in becoming a criminal defense attorney one day. I understand his motivation to a certain extent, he possesses a strong sense of altruism and a sharp sense of logic. I'm not certain that he knows the realities of some of the other things that go with the profession. I'll be sure to bring up some of the points brought up here the next time we discuss the topic.

        •  It truly is a thankless job. (5+ / 0-)

          The dark side of humanity.  You need a strong personality to deal with people that will tell you where to go, what to do to yourself, threaten you, it's disgusting.  The pay is not horrible, but not great (we are union, PD, there is the private criminal defense, but honestly, most people stuck in the system don't have the money to pay, so private to me, is harder to do).

          There is always the one that you help, you know, get them into a program or help them improve their situation, but the vast majority are people that are repeat criminals and know no other way of life than the jail environment.  

    •  I grew up (5+ / 0-)

      with a guy who is now a sitting judge. When he was an attorney I asked him this same question. His answer was "everyone is entitled to a fair trial." I asked him how, if this person admitted to you he murdered a person, he could go into a courtroom and essentially lie to a jury and try to convince it that the person is innocent. His answer. "everyone is entitled to a fair trial. If the state did it's job then the person will be found guilty. If not, then the person should not be found guilty even though I know the person's guilty. This is what ensures that people receive fair trials."

      Kinda made sense......

      "If fighting for a more equal and equitable distribution of the wealth of this country is socialistic, I stand guilty of being a socialist." Walter Reuther

      by fugwb on Thu Dec 20, 2012 at 02:25:21 PM PST

      [ Parent ]

    •  They do good things, even if their client is found (1+ / 0-)
      Recommended by:

           Absolutely. I totally agree, because the reason I went back and finished college twenty years after dropping out was because I was so impressed and inspired by the performance of our local county attorney in two different trials I was a juror for. In one of them, there came a Perry Mason moment where most everyone in the courtroom, including the Bailiff, gasped- as we all simultaneously looked at the plaintiff and thought- "OMG she's lying!"
           Her lawyer knew it too, and everything seemed to hang in the air for a just a second while he sorted in his mind what to do now that it was crystal clear. She obviously had no clue at all that the entire room was onto her, and what the attorney did was perfect. Without batting an eye or missing a beat after that very first shock, he changed the subject and went off on something else for 45 minutes and then asked her the question from the other side. But she was just swift enough to get what he did, but not swift enough to know why, or see that he had given her a second chance to answer differently. It was no surprise, but a disappointment to him (as her lawyer) that she didn't follow his lead. And, he did it again, that day, same way. When she lied the third time, his case was over. From then on he quietly went through the motions, which was also appropriate, I thought, and well done. His position is a locally elected one, and he has served it well for years. The other trial I was on was quite different yet with most of the same local personnel involved, and although I never did go to law school in the end, the inspiration did carry me through undergrad anyway.
          So that happened to be the plaintiff who lied, but she had the county attorney because she was (falsely) charging a man with aggravated felonious sexual assault. He was lucky he had a very good court appointed lawyer to defend him, and if he hadn't, he ran the risk of serving a five-year suspended sentence (for something else) based on her false new charges. So although she killed her own case, I am very glad that there are people out there doing the dirty work to protect the sixth amendment for all our citizens...

      •  Not to be a stickler, but if I'm following your (1+ / 0-)
        Recommended by:

        story, she's a defendant, not a plaintiff.  The government is the plaintiff.  

        •  she was Not the defendant. She (with the County (0+ / 0-)

          attorney at her side) was accusing the defendant, her ex-boyfriend, of anally raping her.  
               The poor man who made the mistake of being her boyfriend for six weeks found himself to be the defendant in a fake rape case that she set up a scene for and almost got away with. She was "the plaintiff" bringing a [false] complaint against him.
               It originally looked like "OMG what did he do to her?" and she was counting on that. She was also counting on getting away with very little testimony because she was 'foreign' and 'didn't really understand English...'
               The first time she gave herself away a little bit was when the judge asked her if she "owned her house." The judge meant "do you own or rent?" but she answered snidely, "no, the bank does." It was such an American response that everybody looked twice, but it was written off as an off-hand joke she might have heard before until...
               Her own lawyer, had earlier explained to us what a "deposition" is. She apparently wasn't paying attention (when she made one in the lawyer's office or in court that day) because he said to us that it was more than a formality it was a legal document, the same as testimony in the actual courtroom but basically saving everyone time by going through the basics of the case under oath but on paper first. All the plaintiff had to do here was answer affirmatively, when the lawyer said, "Is this your signature on the deposition that we signed in my office on such and such a date?"
               It was not supposed to be a trick question- just the way things were usually done. But the look on her face was priceless. You could see her thinking: 'OMG, maybe I wasn't supposed to meet privately with the lawyer. He's trying to trick me! I think I'll just...lie about it! Yeah! that's the ticket!' and she brightened up and said 'innocently,' "No."
               Because everyone could see how she thought then, we realized (from looking at earlier testimony in a new light) that this was not even the first time, it was actually the second time she had tried to get this poor man in trouble, because she was a spiteful, evil bitch. He was no angel but he sure learned a life-lesson from her.
               There's not too many people I would go off on like that, but I saw the lengths that she went to just to be rotten because the two of them were busy being awful to each other at "home" since the time she got her claws into him at some bar and went home with him to stay. I say claws because she literally had fingernails that were about 3 inches long, highly laquered and curved like weapons. On that first Monday, when she entered the courtroom, we all thought she was the defendant, and learning that 'no, nothing may be what you prejudicially think it is so stop that,' was my first lesson in being a juror...
               Meanwhile, that was December of 1998, just exactly when a certain Big Dog was busy playing fast and loose with exactly what he said in a deposition- but he and all around him were lawyers and knew what depositions were then. I thought that that was wrong, and was trying then to tell everyone that sexual dalliances can lead to blackmail and difficult testimony. No one appeared to hear that until recently though...

    •  Criminal defense lawyers keep (2+ / 0-)
      Recommended by:
      grover, Dbug

      law enforcement honest.  

  •  I am reminded of the Scot tale of the lawyer (5+ / 0-)

    who defended the Devil after the Devil was captured while sleeping by the good townsfolk.   The attorney was so eloquent the jury released the Devil whereupon the crowd hanged the attorney; hence the term, "Devil's Advocate"

    As far as defense attorneys defending admittedly unsavory characters, the attorney is hired as an advocate (hired gun is a more objectionable term for the practice) and as an advocate, is committed to any strategy permitted under the rules of law which would yield the optimum results for his client (I also acknowledge that attorneys can believe in their client's innocence and become personally involved in the case but that is another discussion)

    Literally a defense attorney stands between his client and the arrayed forces of the state (to be dramatic).  However, within the boundaries of the law, there are some strategies which offend the personal sensibilities more than others and may actually backfire, for example, attacking the character of the witness or the victim in order to impeach their testimony.
    Speaking of backfiring, I half slept through (blame the narcolepsy) several true crime shows last night and noticed one where the defense was the victim killed himself by shooting himself in the head 3 times and another where the victim supposedly used a ligature to strangle herself.  Sometimes I have to wonder if some attorneys somewhere some times are not tempted to sabotage their clients due to the utter heinous nature of what they are accused (but the attorney is supposed to be above such emotions and inclinations)

    •  It would certainly violate state ethical rules (6+ / 0-)

      But in a criminal justice system where attorneys have slept with the wives of their clients and referred to their clients by the n-word (yes, this has happened and the attorney was not found be to ineffective on appeal) in front of the jury, it's probable that some attorneys sabotage their clients.

      Not all defendants get good advocates. Sadly, it's generally the poor who get these bad lawyers.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 02:25:48 AM PST

      [ Parent ]

      •  the axiom in law is "you get what you pay for" (4+ / 0-)

        or as it was expressed to me by a local attorney " you get the best justice you can afford"  Pro Bono and Public Defenders are usually overwhelmed simply by the caseload while the public is persuaded that plea bargaining allows criminals to escape punishment.

        In actuality the Innocence Project estimates as many as 10% of inmates are incarcerated for crimes they did not commit, while I note some DAs have a plea bargaining rate of 90-100% of all cases.  The cops simply cannot have that great a batting average when it comes to arresting the right person for a crime

    •  "any strategy permitted under the rules of law" (1+ / 0-)
      Recommended by:
      just want to comment
      the attorney... is committed to any strategy permitted under the rules of law which would yield the optimum results for his client
      That's why defense attorneys tell juries & judges things that they know are lies, with impunity. That's why we so often hear that a rape victim was "asking for it" due to the clothes she was wearing or the place she went or the company she kept, even when there is unquestioned evidence that she was forced against her will to have sex.

      Some defense attorneys, like the diary writer, are in it to ensure justice for even those most despised. That's a noble calling.

      This attitude of "any strategy permitted under the rules of law" is NOT about justice. I believe that it is this attitude, not defending unsavory characters, that gives defense attorney's such a poor reputation.

      So is the solution to change the rules of law to now allow such defenses? It's hard to see how any such rules could solve the problem. And besides, such rules are usually (for understandable reasons) about protecting the defendant, e.g. courts where the word "rape" cannot be used, but instead a victim can only say "he had sex with me".

      I wonder why defense attorneys cannot be held responsible for the reasonableness and appropriateness of the defenses that they mount. Without that, I don't see a solution to the poor reputation of defense attorneys, because their role will continue to be to do ANYTHING, however reprehensible, that gets their client the best result possible.

      •  That is not true (8+ / 0-)

        Lawyers are barred by the ethical canons from presenting false testimony to the court.  Lawyers are not permitted to lie.  This is the reason why lawyers sometimes are careful of the questions they ask their client.  If they solicit information that contravenes the defense story, the story must yield to the facts.  For example, if a client tells you he committed the murder, you cannot present a defense that tries to prove that the defendant was 100 miles away at the time of the murder.

        •  Ethical Canons (2+ / 0-)

          I have had the opportunity to read the standard attorneys' ethical code of  conduct.  One of the first statements says  "failure to adhere to the ethical code shall not give rise to a cause of action as the result of breach of conduct".  This sounds like a conclusion that only a court could could offer. The profession acts to protect all members at the expense of their clients and the general public in my humble, experienced opinion.

          •  malpractice is a tort claim (4+ / 0-)

            with its own rules, just as any tort claim, and is between the client and the lawyer. The bar standards include disciplinary rules, some rules you can't break and keep your license, some you can break and get a temporary suspension or a censure, others are aspirational, best practices, it can vary state to state.

            The same conduct may give rise to a disciplinary matter before the Bar and a malpractice claim.  But for the client to meet the malpractice tort rules of the state may mean they have to show more than a violation of an ethical rule, they have to show the violation caused injury to them, and prove the damages.

          •  It sounds like your "experience" is limited to (2+ / 0-)
            Recommended by:
            auron renouille, grover

            reading a generic ethical code.  

            That statement you refer to only means that a client cannot sue a lawyer for violating an ethical rule alone.  The lawyer can, of course, be subject to disciplinary action (including disbarment) and can be sued for malpractice if the violation of the code rose to that level.  

            It sounds like you have a lot of opinions, but not a lot of facts.

          •  But the statements of lawyers (0+ / 0-)

            are not evidence, and in the course of your career you will damn sure as hell make arguments that you don't believe in.

            Unless, that is, you are the only lawyer in human history whose clients are all innocent.

            The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

            by fladem on Thu Dec 20, 2012 at 09:16:56 PM PST

            [ Parent ]

        •  I wasn't talking about testimony (1+ / 0-)
          Recommended by:

          I was talking about the arguments lawyers make. I note that you didn't respond to my point about the outrageous things defense attorneys say about rape victims.

          For a personal example, a lawyer in a child custody case accused my wife of "religiously programming" a child who had been given into our care because she was his Sunday school teacher -- in an ordinary United Methodist church! And that we tried to bribe the kid away from his mother by offering money to her -- which the kid didn't know about, BTW. She was a friend and we were helping her in hard times.

          Fortunately, the judge ignored these claims. But we are white middle class people. Against the more despised members of our society, such claims seem to work.

          Now tell me what consequence lawyers face for doing these things. The possibility of the person they slandered suing them? Oh, please.

      •  "ensure justice for even those most despised." (4+ / 0-)

        And there are DAs out there who seem to think their job is to "put criminals behind bars", or "punish the guilty".  in fact, the job description is really, "to see that justice is done", and that includes the accused.  IANAL, but I know that much.  We should call any DA running for office, or, for example, my State rep, Stefani Carter  
        (, who is a former Assistant DA,, who brags about "putting criminals in prison", on such words and implied behavior in office.

        "Where is the justice?", we should ask.  Even the guilty deserve justice, not summary hanging.  You'd think this would be obvious and easy, but it's not.  Ask any Republican or other "tough on crime" officeholder r elected official.

        I'm part of the "bedwetting bunch of website Democrat base people (DKos)." - Rush Limbaugh, 10/16/2012 Torture is Wrong! We live near W so you don't have to. Send love.

        by tom 47 on Thu Dec 20, 2012 at 09:32:43 AM PST

        [ Parent ]

        •  Indeed (1+ / 0-)
          Recommended by:

          DAs are advocates of the state. Often, they forget that the accused is also a part of that state. A DA has a job to do. Too often, though, these individuals act in a way that is counter to real justice. They're co-opted by a culture of vengeance parading as justice.

          "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

          by Grizzard on Thu Dec 20, 2012 at 09:48:19 AM PST

          [ Parent ]

          •  Or, perhaps more simply, (0+ / 0-)

            they skip the "justice" part to go straight to the "punishment".  Process matters...

            I'm part of the "bedwetting bunch of website Democrat base people (DKos)." - Rush Limbaugh, 10/16/2012 Torture is Wrong! We live near W so you don't have to. Send love.

            by tom 47 on Thu Dec 20, 2012 at 10:38:03 AM PST

            [ Parent ]

    •  Actually, "Devil's Advocate" has different origin. (3+ / 0-)
      During the canonization process of the Roman Catholic Church, the Promoter of the Faith (Latin: promotor fidei), popularly known as the Devil's advocate (Latin: advocatus diaboli), was a canon lawyer appointed by Church authorities to argue against the canonization of a candidate.[1] It was this person’s job to take a skeptical view of the candidate's character, to look for holes in the evidence, to argue that any miracles attributed to the candidate were fraudulent, and so on...

      The office was established in 1587 during the reign of Pope Sixtus V and abolished by Pope John Paul II in 1983.[2] This reform changed the canonization process considerably, helping John Paul II to usher in an unprecedented number of elevations.

      "The true strength of our nation comes not from the might of our arms or the scale of our wealth, but from the enduring power of our ideals." - Barack Obama

      by HeyMikey on Thu Dec 20, 2012 at 08:22:22 AM PST

      [ Parent ]

  •  I hope you tell them.... (11+ / 0-)

    when asked, that EVERYBODY has a right to a defense by lawyer in this country, its guaranteed.
    Someone has to do it.  any adult that doesn't realize that must have slept through civics class.

    Happy just to be alive

    by exlrrp on Thu Dec 20, 2012 at 03:07:39 AM PST

  •  let's (8+ / 0-)

    set aside for the moment the inconvenient truths that Strickland is mealy-mouthed O'Connor shit, Posner is a big-mouth dim-bulb righbent hack, and that in the south it is more or less expected that attorneys of all shades and stripes shall drag their knuckles as they approach the bench.

    Let's go to where the answer is really hard.

    A very wise criminal-defense attorney once said to me:

    "People ask me: how can you defend these people, accused of such horrible crimes?

    "And I say: 'Every one of us, under the right circumstances, is capable of committing every one of these crimes.'"

    He's right.

    •  This pretty much exactly (9+ / 0-)

      When I speak of the criminal underclass that people like to create, I'm speaking of the mirage of moral distance people put between themselves and those who commit these crimes. That is not to say that there is no moral distance between them and the people who have committed a crime. It's just to say that in most cases, they overestimate the difference. They pretend that "those people" have a central defect that doesn't afflict them, and therefore they could never do something like that. This ignores the life-altering power of atmosphere and circumstance, as you've noted.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 05:27:36 AM PST

      [ Parent ]

    •  I personally (1+ / 0-)
      Recommended by:

      have never dragged my knuckles as I approached the bench, and don't expect any attorney I face to be a knuckle dragger.  Thank goodness the attorneys down here do actually have standards.

    •  Don't buy that for a second (0+ / 0-)

      I tried a case where the husband murder his wife and then cut the head off a two year old child.

      I do not believe any one of us is capable of killing a two year old with a knife.

      No, the defendant was not mentally ill.

      The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

      by fladem on Thu Dec 20, 2012 at 09:21:00 PM PST

      [ Parent ]

      •  Meh (0+ / 0-)

        It's incredibly hard to put yourself into the shoes of someone who was raped, beaten, chased around with a knife from the age of 5. Those are the people who commit horrid crimes the majority of the time.

        Those experiences fundamentally shape a person. I'm not saying that every person who goes through trauma ends up killing a kid. But most people who kill kids have gone through some extreme trauma.

        Also, I would argue that your compass is a bit off - is it possible for someone not mentally ill to cut the head off of a two year old? I'd argue not. What you mean, I guess, is that the defendant had no prior diagnosed mental illness.

        "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

        by Grizzard on Fri Dec 21, 2012 at 11:28:59 PM PST

        [ Parent ]

        •  He was seen (0+ / 0-)

          by 4 psychiatrists before trial. None said there was any sign of any mental illness.

          When asked why he killed the two year old these are his exact words:
          "Because she was going to grow up to be a cunt like her mother"

          As I said - I think the notion that any one of us could do something like that is wrong.

          There is evil in the world.

          The bitter truth of deep inequality has been disguised by an era of cheap imported goods and the anyone-can-make-it celebrity myth - Polly Toynbee

          by fladem on Sat Dec 22, 2012 at 09:38:16 AM PST

          [ Parent ]

  •  I always figured defending the guilty (5+ / 0-)

    was pretty much a hazard of the lawyering profession.

    It's the same basic deal as a doctor who treats the defensive wounds of an asshole who just killed his wife and kids.

    Everyone has part of their job they don't like.  With some jobs, the sucky part is worse than others.   In order to protect the actually innocent to the extent of the law, a defense lawyer is going to have to sometimes extend the law's protection to individuals who the lawyer, personally, would rather weren't walking around free.

    Good diary on all the reasons WHY it is the only ethical thing for a defense lawyer to do.

    •  I briefly worked as a go-fer at a federal (3+ / 0-)
      Recommended by:
      Grizzard, peregrine kate, fuzzyguy

      public defenders in my twenties, for about three years. We had many guilty clients. When people asked how I could work for an office defending criminals (right there an assumption of guilt, however merited), I replied that we were making sure they got a fair sentence for the crime.

      Here's one example. The attorneys were required to take on  clients on death row. (I will say proudly that during the time I was there out of eight death row cases, six were commuted.) One was particularly heinous, a man in his thirties who along with a nineteen year old murdered an old woman he'd known, who'd been kind to him. The younger man testified against him, stating he had been coerced into participating, and the older man was found guilty and given the death penalty. Sounds fair. Here are further details. The older man had an I.Q. of around 57, and the attorney said when they talked he could not remember the event; half the time he did not know he was in prison. Does he seem the master mind? The trial was held in the local high school gymnasium as many of the townspeople who wanted to attend. In closing statements, his attorney said he would have found him guilty, but had been assigned the case. This man committed a crime, and deserved to be found guilty. Did he deserve the death penalty?

      "You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty." Mohandas Gandhi

      by cv lurking gf on Thu Dec 20, 2012 at 08:40:17 AM PST

      [ Parent ]

      •  I'm guessing there's another aspect in play (3+ / 0-)

        By taking on this job, you get the opportunity to sometimes rescue the innocent and sometimes get a more fair sentence when the crime was either somewhat justifiable or the criminal in question had mitigating circumstances.

        A doctor, to remain sane, has to focus on the people they save, not the people they lose (or make worse through incorrect advice).

        Seems like lawyers would also have to have some of that "glass half full" attitude to continue to do a good job.

        •  Oh yeah (6+ / 0-)

          My professor, Dr. Dow, represents death row inmates. Most of his clients have been killed by the state. To stay sane, he has to consider preserving a man's life for an extra year as a win. Getting a man's sentence taken down to life is a major upset. Getting a man off of death row entirely is like a world championship.

          "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

          by Grizzard on Thu Dec 20, 2012 at 08:51:55 AM PST

          [ Parent ]

          •  That's why I am proud of those three years. (2+ / 0-)
            Recommended by:
            Grizzard, peregrine kate

            I worked with incredible attorneys. They had record success.

            Now, could someone help my friend who was convicted in Texas of robbing a fast-food restaurant with a gun? That's how I found out Texas has no public defender office, only a list of available attorneys, who do no work until they're paid, which is usually the court date. The witness changed the description of the ski-masked man two months after her initial interview, from a dark skinned man with tattoos on his neck, to a light skinned one without. Fifteen years. He'll be thirty-eight. Why do I feel such animosity toward Texas?

            "You must not lose faith in humanity. Humanity is an ocean; if a few drops of the ocean are dirty, the ocean does not become dirty." Mohandas Gandhi

            by cv lurking gf on Thu Dec 20, 2012 at 09:01:02 AM PST

            [ Parent ]

            •  We are investigating a case (3+ / 0-)

              of a man who was identified by name, 12 years later, by one victim of a burglary/murder (obviously this guy lived). The victim and the inmate had gone to high school together. He didn't finger our inmate until an investigator visited him multiple times 12 years after the fact. I'm in possession of a signed confession from a person who committed another murder a few years later, who is now in prison for life, claiming that he did it all.

              I have no idea if our inmate did it. But I know that 12 years is a lot of time for someone to identify someone he clearly knew at the time.

              "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

              by Grizzard on Thu Dec 20, 2012 at 09:08:41 AM PST

              [ Parent ]

              •  That these jailhouse snitch statements (1+ / 0-)
                Recommended by:
                cv lurking gf

                have legal weight, really bothers me. The person making the accusation is a convicted felon, and has a vested interest in telling the authorities that SOMEONE did it (to receive a reduced sentence or better treatment); pretty much the definition of untrustworthy information. Yet we take away men's freedom on little more.

                Visit Lacking All Conviction, your patch of grey on those too-sunny days.

                by eataTREE on Thu Dec 20, 2012 at 10:00:11 AM PST

                [ Parent ]

        •  Some of us duck the issue entirely (0+ / 0-)

          and go work for the government.  ;-)

  •  "Ask John Adams" n/t (2+ / 0-)
    Recommended by:
    old possum, jfromga

    “If you are irritated by every rub, how will your mirror be polished?” - Rumi

    by Jaxpagan on Thu Dec 20, 2012 at 06:40:37 AM PST

  •  I can tell you after 25 years of representing (31+ / 0-)

    men and women charged with serious crimes, you will end up losing a lot more sleep when you represent someone you truly believe to be innocent. Not because they deserve a better defense but because the system is so weighted toward finding a person guilty. And then denying relief to the innocent person who gets convicted. Having that person's life in your hands when they don't deserve to be convicted is a very worrisome thing. With the system skewed the way it is you are much more likely to watch an innocent person get punished than you are to watch a guilty one go free through your own brilliant lawyering.

    "Speak the TRUTH, even if your voice shakes."

    by stellaluna on Thu Dec 20, 2012 at 07:14:39 AM PST

    •  I've done innocence work (7+ / 0-)

      where it's obviously even more difficult to prove that someone's innocent. And it's both sad and scary the number of cases we have where I'm reasonably convinced that our inmate didn't do it.

      Granted, most of these individuals had horrid attorneys who didn't care. But I'm not certain a good attorney could have helped them given the way the system works, especially in a place like Texas.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 07:18:51 AM PST

      [ Parent ]

      •  The state's right to deprive someone (9+ / 0-)

        of life, liberty, or property is conditioned on the state following a prescribed process. The state has no right to deprive someone of life, liberty, or property without first according them the process they are due. An assistant district attorney once told me that if I really believed my client was innocent, then he strongly encouraged me to put the DA through his paces, and make him prove the case. That's the burden the DA has, and the DA is not entitled to any presumptions, while the defendant is entitled to the presumption of innocence. My job was to force the DA to stick to the process that was due the client.

        Due process is what it is all about. Or at least that is what it should be about in this country. The principles of due process have been subverted recently. As they say, 9-11 changed everything.

    •  That's why I decided early on (6+ / 0-)

      from the time I was a law clerk to practice civil litigation.

      I couldn't live with myself when my client's liberty was on the line.  At least with civil litigation, it's only money.

      Cake or DEATH? Oh, I'll have cake, please.

      by wmtriallawyer on Thu Dec 20, 2012 at 08:46:15 AM PST

      [ Parent ]

  •  I'm in law school... (18+ / 0-)

    and hoping to become a public defender as well.

    I actually have the same question for prosecutors and aspiring prosecutors... "How can you participate in ruining so many lives over so many not very serious crimes?  How can you actively participate in the greatest prison state the world has ever known?"

    •  Because prosecutors get kudos (4+ / 0-)

      For their conviction rates, not for their exercise of discretion; PDs don't get kudos at all.

      If you think you're too small to be effective, you've never been in the dark with a mosquito.

      by marykk on Thu Dec 20, 2012 at 08:22:39 AM PST

      [ Parent ]

      •  And prosecutors come on DKos to be told (1+ / 0-)
        Recommended by:
        auron renouille

        we're all horrible people who want to chuck people in jail for having a joint on them.  

        Don't believe everything you see on TV, ok?

        •  Acting like prosecutors only engage in (1+ / 0-)
          Recommended by:

          misconduct on television is exactly the kind of disingenuousness that has led to the pre-conceived notions of prosecutors mentioned in this thread.

          Yes, it's true that not every DA sucks. But it's also true that a lot of them do things the wrong way. And acting like this is a myth is pretty annoying.  

          "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

          by Grizzard on Thu Dec 20, 2012 at 09:11:21 PM PST

          [ Parent ]

        •  I did not say that (0+ / 0-)

          but I have been in a few courtrooms myself, 'k?  And I've watched lots of campaigns as well, and never once saw a candidate for AG, DA or SA run on "wisdom and discretion."  They run on their conviction rates and their promises to get tough on crime.  This makes it very difficult for a young lawyer to argue against a heavy handed approach.

          If you think you're too small to be effective, you've never been in the dark with a mosquito.

          by marykk on Fri Dec 21, 2012 at 03:59:34 AM PST

          [ Parent ]

    •  I've been a prosecutor and a public defender. (7+ / 0-)

      I left prosecution because I just couldn't stomach the constant parade of defendants who actually had to serve jail time for having a small amount of marijuana.  Stupid.  Stupid.  Stupid.  And I coulnd't be part of that system anymore.

      As a public defender I quickly learned that most of my clients were not that bright and usually committed the crimes.  Yes, they were guilty.  But prison isn't always the answer and it was my job to keep them out of jail, to the extent possible.

      Now, I do labor law.  I sleep fine at night and like fighting for the rights of workers.  

      The dark side of law is insurance defense and labor law on the management side.  

      That's where you truly sell your soul.

      My dogs think I'm smart and pretty.

      by martydd on Thu Dec 20, 2012 at 10:13:25 AM PST

      [ Parent ]

      •  Agreed (4+ / 0-)
        Recommended by:
        martydd, Lorikeet, Ice Blue, fuzzyguy

        I did some labor law (management side for large, large corps) during my summer associateship. Nothing soul killing for a summer. But the attorneys who practiced that area seemed to drown their sorrows in nice shoes. That told me all I needed to know.

        "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

        by Grizzard on Thu Dec 20, 2012 at 10:18:31 AM PST

        [ Parent ]

      •  interesting... (0+ / 0-)

        I would love to hear if you have any advice about pursuing a career as a public defender.

        I'm in my 2L year, have a nyc firm summer associate job lined up for this summer which I'm going to do because I can't turn down that summer paycheck.... but would love any advice that helps me not have to continue down that path.

        •  Here's my experience. (2+ / 0-)
          Recommended by:
          fuzzyguy, Joe Hills Ghost

          Some of your clients are very unpleasant people who are incapable of telling the truth.  Even to you.  You do the best you can for them, and try to keep them from perjuring themselves.

          Most of your clients are uneducated and poor.  They make bad choices.  Your job is to get them another chance, and not let their lives be ruined.  

          The occasional client has a defense, and yes the police make mistakes.  Sometimes they really are innocent.  It's up to you find the evidence and convince the prosecutor, or the court, to dismiss.   These are the tough cases, because it's too easy for the system to chew people up.

          You have to learn to desensitize yourself.  You have to not visibly express disgust when your sex offender client tells the court that his 10 year old daughter sedued him.  

          And you have to learn to work quickly and accept the fact that you will never have time to fully investigate or develop your clients case.  There's just too much work and not enough resources.  

          You never have time to adequately prepare.  On a given day, you might have six cases set for trial.  Most of them settle long before that, but the night before, you might not know which one you're actually going to try.  If any.

          You have to learn to wing it.  

          It's a very high pressure job.  Because, for your clients, the stakes can be pretty high.

          My dogs think I'm smart and pretty.

          by martydd on Thu Dec 20, 2012 at 12:15:56 PM PST

          [ Parent ]

          •  appreciated... (1+ / 0-)
            Recommended by:

            any advice on how to get a job?  Good areas? Competition is still from what I understand.

            •  Clouz22 (0+ / 0-)

              Email me at

              I have some excellent resources that I can share with you on all of the various options, their deadlines, what to expect, and everything else.

              I worked a biglaw summer associateship my 2L summer for many of the same reasons you're about to work yours. It was unfulfilling, and I thought my talents might be better placed elsewhere. I have some very good contacts in the world of public defense that I can put you in contact with.

              "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

              by Grizzard on Thu Dec 20, 2012 at 04:38:21 PM PST

              [ Parent ]

      •  Agreed - (0+ / 0-)

        I did criminal law for a legal clinic for a while before switching to union side labour law (Canadian eh?  that extra "u" in labour sets us a little apart along with the fact that our labour laws are a little more balanced - 'course the creeping craziness now hitting Michigan will sooner or later infect Ontario).   I sleep fine at night also.

        Time flies like an arrow. Fruit flies like a banana. Marx.

        by Childofexpats on Thu Dec 20, 2012 at 01:47:52 PM PST

        [ Parent ]

    •  To answer your question... (1+ / 0-)
      Recommended by:
      auron renouille

      you exercise prosecutorial discretion, first of all.  And second, you have a deep sense of empathy for people whose lives are ruined by heinous crime.  I think of a young man who loses his fiance to a drunk driver, or a family whose children are caught in the crosshairs of gun violence, or a woman whose life will forever be profoundly affected by a rape.  

      •  I know you're right.... (0+ / 0-)

        in lots of individual situations.  My question was half in gest.

        But I submit to you - America has 5% of the world's population, and 25% of the world's prisoners..... that's with every prosecutor exercising their vast discretion.

    •  You know, I'm not sure that's fair. (0+ / 0-)

      There are some deeply troubled District Attorneys.  Our county is one of them.  It's almost always because of our unfortunate tendency to make a county attorney a political office.

      But as for my court?  I regularly have prosecutors come up to me (a just-graduated baby defense attorney) and say "Hey, this guy wants to plead guilty but I'm not OK with it, I don't think the facts are right here, think you can do something here?" or "I need you to file/look into/help me with (x) because otherwise what will happen to her seems really unfair."

      Can I always get a good result?  Of course not.  Do some defendants get a raw deal?  Absolutely.  But, with the exception of a couple of people, the people who prosecute in my court are deeply aware of what they are doing and the goal of justice.  I have never felt, in this office, that I lacked recourse for a defendant whose circumstances didn't feel right to me.

      Having said that, google "Andrew Thomas" "Maricopa County" to see what can happen to people who go to the Dark Side (or, in Thomas's case, quite possibly started on the Dark Side).  Also, of course, none of us - defense attorneys, prosecutors, or judges - can fix unjust mandatory minimums.  I give many credit, they'll sometimes write some very creatively-worded indictments and pleas to avoid some very harsh outcomes; I still recall one colloquy where I had trouble keeping a straight face because of the bizarre outcome we - all of us - concocted to avoid an unfairly harsh outcome.  But sometimes you gotta call a spade a spade and just shrug helplessly at the hand the state legislature has dealt you.  Like it or not, we're all still public servants at the end of the day.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Thu Dec 20, 2012 at 09:07:32 PM PST

      [ Parent ]

      •  Thanks for the insight.... (0+ / 0-)

        I know there are lots of good ones - but see my above comment... our incarceration rates can't be explained away by the Andrew Thomas' of the world.

        •  That one is explained by the last part. (0+ / 0-)

          We have shitty policies on a lot of issues, unfortunately.  At the end of the day, all you've got is a bunch of people doing the best they can with it all.

          "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

          by auron renouille on Fri Dec 21, 2012 at 05:10:38 AM PST

          [ Parent ]

          •  so discretion can only do so much... (0+ / 0-)

            and we are left with my first question...

            "How can you participate in ruining so many lives over so many not very serious crimes?"

            To me, the "I'm just doing the best I can within the law I'm given" explanation wouldn't make me feel any better.  Like the police officer in Selma Alabama following the law to throw black protesters out of buildings -  I'm still an active participant.  

            I can understand how others reach different conclusions.  I just think it's worth asking, since it's asked about defense attorneys all the time.

  •  Even without that definition of "guilty" (2+ / 0-)
    Recommended by:
    mikejay611, peregrine kate

    I would maintain that it is literally impossible to KNOW that your client committed the crime of which s/he is accused.  Even if s/he confesses it to you.

    Unless you witnessed it, in which case ... you know, I don't actually know this one.  Is it legal for someone who witnessed the crime to represent the accused?

  •  It was a lot worse for black people in the 1800s. (4+ / 0-)

    Look in Teams of Rivals for the description of how the attorneys who specialized in defending people in Ohio and against the fugitive slave laws were vilified by their neighbors.  Folks who lived near the Kentucky/Ohio border were sued in federal courts for money damages based on them having helped slaves from Kentucky escape to Canada or elsewhere.

    Book on

    Salmon P. Chase in wikipedia

  •  Take a look at the exoneration registry (5+ / 0-)

    of  Michigan and Northwestern law schools.

    Look at the story of the kids convicted in the Central Park Jogger case! Look at the book "Pcking Cotton"-- and on and on about the wrongfully convicted!

    That's why I work in this field, in post-conviction.

    I must be dreaming...

    by murphy on Thu Dec 20, 2012 at 08:14:37 AM PST

    •  Post-conviction work is part exhilaration (7+ / 0-)

      part agony. I did a clinic under Dr. David Dow, who handles probably a majority of capital cases in Texas. He works directly on post-conviction stuff for death row inmates but also runs an innocence network for non-capital crimes. The one thing that it has taught me is the inherent humanity even in those who probably "did it."

      When you get a hand-written letter with pleas for help that include the phrase "respectfully yours" at the end, you stop thinking of criminals as animals. Or when the letter is so nuanced - your convicted murderer is trying to explain to you that his trial lawyer sucked, but he knows you are a lawyer so he wants to be respectful in how he words his complaint - that's when you start to realize that conceptualizations of "criminals" are mostly wrong. After spending years in prison, many of these people have incredible empathy. It makes sense given that they spend most of their day in reflection on their own lives and their own actions.

      I do recognize that there's a certain element of criminals that do not fit that bill, and they embody the animalistic elements that we seem to paint on all convicted people. Those folks deserve the best defense, too. But they are harder to "like," unlike many of the people I encounter.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 08:22:30 AM PST

      [ Parent ]

    •  "PICKING COTTON" (5+ / 0-)

      is the true story of a woman raped in her own home-- and she tried to make sure she remembered everything about her attacker.

      She was totally positive she id'd the right guy. She picked Ronald Cotton and she was absolutely sure.

      Until  DNA proved it wasn't him, and truly ID'd the actual perp.

      They are now best friends and go around giving talks to groups about how id witnesses can be wrong, and what they both went through.

      (He served several years in prison, btw, before the truth came out.)

      I must be dreaming...

      by murphy on Thu Dec 20, 2012 at 09:23:48 AM PST

      [ Parent ]

    •  Link to the Registry (0+ / 0-)

      It's currently at 1,040.

      If you know about one that isn't on it yet, please let them know !

      I must be dreaming...

      by murphy on Thu Dec 20, 2012 at 10:40:27 AM PST

      [ Parent ]

    •  Great book (1+ / 0-)
      Recommended by:

      (and movie) by Sarah Burns about the Central Park Five.  

  •  I worked in s small county jail (5+ / 0-)

    which was blessed with representation from wonderful public defenders.  As a mental health worker, I worked quite closely with them and can attest to their underpaid dedication.  The county could only afford a few full-time public defenders and relied on the legal community for its part-time staff.  Many an inmate would complain about wanting a "paid" lawyer and being stuck with just a public defender.  I would explain that their public defender had a great deal of experience in such matters, while "paid" lawyers would frequently be learning on the inmate's case.

    Hearing how dismal the matter is still throughout the country makes me grateful for what we have and you, Grizzard, have given me hope for future generations public defenders and their clients.

    •  My experience, which thus far is limited to (0+ / 0-)

      misdemeanors, is that a lot of paid misdemeanor criminal defense attorneys are about one step above people who skim credit cards at ATMs.  Not all.  But a lot.

      It's very dangerous to advise a defendant to go with a public defender because you're basically telling them not to hire a lawyer.  But I do stress to them that our public defenders have an enormous amount of experience with the sorts of misdemeanors that go to trial, we have basically a staff forensic specialist, etc.  Whereas a lot of the private lawyers (not all) will just jump right to a plea - the same plea they would have gotten had they plead guilty at their arraignment.  Good way for a lot of people to flush $3,500 down the drain.

      Still, there are good private criminal defense attorneys out there and there are cases, particularly if the client's case is inextricably intertwined with family or immigration law issues, where an outside attorney may contribute some special competencies.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Thu Dec 20, 2012 at 09:16:02 PM PST

      [ Parent ]

  •  "Because without a fair trial that provides (3+ / 0-)
    Recommended by:
    Grizzard, mikejay611, peregrine kate

    the defendant with a conscious, resource-backed, and motivated lawyer, there is no legal guilt."

    That statement resonates with me because without a sense of legal guilt, and therefore no sense of innocence either, what is the point of the law in the first place?

    God be with you, Occupiers. God IS with you.

    by Hohenzollern on Thu Dec 20, 2012 at 08:38:08 AM PST

  •  Nothing personal, (2+ / 0-)
    Recommended by:
    Grizzard, peregrine kate

    but I hope I never need your services. If I ever do need a defense attorney, I hope I get one as clear-eyed and diligent as you seem to be.

    Just out of curiosity, is your screen name your family name? If so, do you have relatives in a small town in North Carolina?

    Hige sceal þe heardra, heorte þe cenre, mod sceal þe mare, þe ure mægen lytlað

    by milkbone on Thu Dec 20, 2012 at 08:51:59 AM PST

    •  I do not (3+ / 0-)

      I am from South Carolina, but I have no known family in NC.

      My name is a tip of the hat to Lewis Grizzard, an often forgotten Georgia-born writer whose style (but not substance) I appreciate.

      Thanks for the kind words. I explained to my significant other that I want to do this work because if my son was charged with a serious crime, I would want someone like myself to work on his case. That's not to say that I'm especially smart or gifted; it's just that I give a shit when most do not. I hope to offer that to other parents (and obviously their kids).

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 09:15:56 AM PST

      [ Parent ]

  •  Notwithstanding the legal definition of guilt, (1+ / 0-)
    Recommended by:
    Dr Erich Bloodaxe RN

    Once someone commits the crime, they are guilty of the crime. You may or may not know they are guilty, in a factual sense, but that is immaterial.

    I prefer to look at in the sense that you are representing the constitution. Because only by representing a person who might be guilty, and by occasionally being able to enforce a constitutional right in favor of someone who might be factually guilty, can our rights remain intact for the rest of us.

  •  If they can't get an attorney for their case. . . (0+ / 0-)

    . . .they walk. It's as simple as that. Everyone deserves a trial and everyone deserves a defense.

    There'll will plenty of time for the hangin' (not meant literally).

  •  Fine diary. Thanks for such a clear explication (1+ / 0-)
    Recommended by:

    of your position. My hat is off to you for pursuing this work.

    One of my oldest and closest friends is a state appellate attorney. Such a tough job, because there are so few grounds for appeal--even when the initial trial was not well-conducted (for any number of reasons). And this is in a state with an adequate legal system. I can't imagine how much worse it would be where there are instances of gross misconduct as a matter of course.

    Some DKos series & groups worth your while: Black Kos, Native American Netroots, KosAbility, Monday Night Cancer Club. If you'd like to join the Motor City Kossacks, send me a Kosmail.

    by peregrine kate on Thu Dec 20, 2012 at 09:42:01 AM PST

  •  while I have no desire (1+ / 0-)
    Recommended by:

    to defend criminal cases, and no desire to ever prosecute them either, I understand the need, the absolute necessity of vigorous defense of even the most guilty person.  Because defense attorneys in our system do not merely defend the person.   They defend due process of law itself.  They defend the heart and soul of the entire judicial process.  Because if a prosecutor and the police can hide evidence, abuse process, mischarge on indictments, not prove their cases in court and convict a guilty person, they will sure as the sun rises in the east, do it to an innocent person.  If the law sets a standard for guilt, then someone must uphold those standards and see that they are met before anyone loses their freedom, their rights as a citizen to vote or any of the myriad other consequences that flow from a guilty verdict.   Justice for all, means all or it doesn't mean anything.

    If you see us on a slippery slope towards a militarized police state already, where we are not free to express our opinion, to gather to protest government action, where we are spied on in our communications and in our homes by high tech surveillance without warrant or cause for a warrant,  then you better hope that someone is out there defending the guilty, because they are the first best defense against that police state.

  •  When I read the Diary title, I thought you were... (1+ / 0-)
    Recommended by:

    referring to our elected representatives...

  •  I defend the accused. (7+ / 0-)

    The easy ones are the ones where they are guilty, and defendants typically just want to minimize their problems.   The difficult cases generally are the ones where the accused is actually innocent.  

    And if police and judges would do their job right every single time, there wouldn't be such a need for judges and juries.

    ...someday - the armies of bitterness will all be going the same way. And they'll all walk together, and there'll be a dead terror from it. --Steinbeck

    by Seldom Seen on Thu Dec 20, 2012 at 09:51:39 AM PST

    •  +1,000. (1+ / 0-)
      Recommended by:

      The guilty ones are simple - you tell them to plea before their problems get worse.  And good lord do frequent fliers know how to make their problems worse.  I've had a few defendants who might improve their lot in life a little if they were to lock themselves in a padded room.

      But I'll introduce one distinction - if I know that someone is innocent, if they produce, for instance, a stamped passport that conclusively demonstrates to me that they were in Outer Mongolia on the day that they were supposed to have stolen those rolls of toilet paper from Wal-Mart, I can go to the prosecutor and lay out all of my cards safely.  I have nothing to lose and can safely make a play for the early dismissal.  I got one of those this morning (after a rather annoying amount of legwork - I hate car insurance).

      But if I'm about, oh, 75% sure that they're not guilty, I have to be careful and play my hand a lot closer to the vest.  And then there's that nagging fear in the back of your mind that either a) they actually committed the crime but are just an extremely smooth operator or b) if I had only laid out ALL of my cards to the prosecutor, I could've gotten a better outcome.  Those decisions are hard to weigh in a few minute's time.

      "The first drawback of anger is that it destroys your inner peace; the second is that it distorts your view of reality. If you come to understand that anger is really unhelpful, you can begin to distance yourself from anger." - The Dalai Lama

      by auron renouille on Thu Dec 20, 2012 at 09:23:14 PM PST

      [ Parent ]

  •  Heh, my retirement party is today (9+ / 0-)

    after a quarter century in the Public Defender's office.  Good luck and God save you from innocent clients.

    "I said, 'Wait a minute, Chester, You know I'm a peaceful man.'" J. R. Robertson.

    by NearlyNormal on Thu Dec 20, 2012 at 10:04:17 AM PST

    •  Here's to you (2+ / 0-)
      Recommended by:
      NearlyNormal, Vetwife

      for your service.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 10:14:33 AM PST

      [ Parent ]

      •  Its an interesting way to make a living (4+ / 0-)
        Recommended by:
        Grizzard, susanala, Lorikeet, SoCalJayhawk

        You have to keep reminding the world that these are people you deal with.  I hope the pendulum swings back towards decent laws, but one of the things that the current administration has failed at, in my opinion, is advancing people to the judiciary that are not prosecutors.  We really have enough ex DA's in office.  We could use some people that have a more complete understanding of the Crim justice system than prosecutors.

        "I said, 'Wait a minute, Chester, You know I'm a peaceful man.'" J. R. Robertson.

        by NearlyNormal on Thu Dec 20, 2012 at 10:18:45 AM PST

        [ Parent ]

  •  Not easy (2+ / 0-)
    Recommended by:
    Lorikeet, lazybum

    My step-brother used to be a defense lawyer and was DAMNED good at it. And was proud of doing it because of how important it is in society. But it did eventually get to him and he moved on to more lucrative jobs. I don't think he ever regretted leaving defense law but I also don't think he regretted doing it and being good at it. Bottom line is even the guilty need a good defense or our society doesn't work well.

    I was once on a jury for a criminal case...a stabbing over a drug dispute. In the end the prosecution proved nothing and it was the defense that was so far fetched (to the point of impossibility) that I weighed the probability of the prosecution (reasonable) against the defense (physically impossible) and opted for a guilty verdict. I even was instrumental in convincing others on the jury to go for guilty.

    Two people held out. Their take was that if the defense messed up so badly that it convinced us of guilt then the legal process was flawed and they couldn't vote for was the job of the prosecution to convince us of guilt. I disagreed but understood so completely I was even able to articulate it to the rest of the jury when the holdouts couldn't. we ended up a hung jury. Talking to the prosecution afterwards it became clear that they had held back for a reasonable reason (they didn't want to put a relative of the accused and the victim in a tough spot) and that they had additional evidence that the guy was guilty but thought they didn't need it. We urged them to retry it and put the relative on the spot. Don't know what happened after, but there in a nutshell is as good a summary of our legal system, both the flaws and the advantages. In the end I think we did a good job as a jury and both lawyers kind of sucked (the judge was excellent!). Hopefully they both learned.

    FREEDOM ISN'T FREE: That's why we pay taxes. I Had A Thought

    by mole333 on Thu Dec 20, 2012 at 11:36:51 AM PST

  •  Thanks for this. (2+ / 0-)
    Recommended by:
    Grizzard, Vetwife

    I've been a criminal defense lawyer for more than 30 years, and a part time public defender for more than 10. I do the PD work because it's giving back.  I give the PD clients the same defense I give to people who pay me tons of money.

    I doubt that most lawyers, let alone most people who aren't involved in the criminal justice system, have any idea how very hard it is to represent indigent accused people. Especially when they are accused of heinous crimes. Especially when prosecutors are motivated to seek serious sanctions. The process of gaining the accused's confidence takes time. And effort. Because no matter how good the particular defense lawyer might be, s/he's a public defender and in the mind of the accused not a REAL lawyer. S/he might be railroading the accused. S/he might be a stooge for the prosecution. And how good can anything be that is free? Sadly, high caseloads mean that the time available to deal with these suspicions is short. So in many, many cases the attorney client relationship is extremely tense and strained. This makes the task, getting the best for the client, all the more difficult. All the more stressful. This is a pressure cooker. It explains the burnout rate. It explains why lawyers leave the public defender's office quickly. It explains a lot of other things: the divorce rate, alcoholism, drug addiction, mental health issues among my colleagues.

    I like to think that the men and women who provide indigent defense are modern day heroes. That they're the ones who make procedural due process actual. That they're the ones in the trenches fighting for actual justice. Sure, there are mistakes. And errors. And innocent people can be convicted. Of course. All the more reason imho why those who fight every day for the indigent accused are worthy of our support and praise.

    •  My hat is off to you guys (0+ / 0-)

      I could never do it if I knew they were guilty.  
      I have turned down jury duty for one reason only...I have  not come up on a case that I had not personally had some emotional ties to.   Kidnapping?   Murder....
      Rape.....I could not do it.....I tell the court straight up
      I would be biased.  Guilty...I am being honest and they are being smart.   Excused.

      We the People have to make a difference and the Change.....Just do it ! Be part of helping us build a veteran community online. United Veterans of America

      by Vetwife on Fri Dec 21, 2012 at 04:38:48 AM PST

      [ Parent ]

  •  Joe DuRocher was a longtime friend of mine (1+ / 0-)
    Recommended by:
    Joe Hills Ghost

    who served as Orange County (Fla) Public Defender for about 25 years, and as juvenile court judge before that. He passed away last year. He was a great man.

    When I was in my 20's (and our friendship had just begun) I asked him about defending the guilty. He was the first real lawyer I could ask those kinds of questions.

    I've remembered his answer ever since. He told me a good lawyer is defending the principle of justice as much as the person, that the defense effort is a means to an end (justice) and not the end (getting the criminal off). And that any lawyer who didn't give 100 percent to the guiltiest defendant was betraying the principle of justice in addition to her/his client.

    We both have known many lawyers since (but never Joe) who have betrayed the principle of justice.

  •  I have a house guest from DC who just came out (0+ / 0-)

    to appear in front of a judge in Denver on behalf of the shoe bomber and others including white supremacists being held at the supermax down in southern CO.

    I understand.

    I find these peoples crimes to be abhorrent, but I don't want them mistreated in my country.

    Lawyers can be a voice for what is good and human in people.

    How big is your personal carbon footprint?

    by ban nock on Thu Dec 20, 2012 at 02:49:30 PM PST

  •  What about clients who tell you, confidentially, (0+ / 0-)

    that, yes, indeed, they 'did it'?

    To me, those are the people folks are talking about when they ask, 'How can you defend someone who is guilty?'

    Obviously, the vast majority of us have no way to know if someone is actually guilty (Which I submit is a far different thing than 'being found guilty by a jury.  It can certainly be seen that many guilty people have been found not guilty by a jury, and equally so the reverse.) but a defense lawyer might.  You might not, but given the 'lawyer client privilege', they may very well simply decide to tell you (or the sleazy lawyer who doesn't care, and just wants billable hours or 'wins'.)

    Forget all of the people against whom 'the evidence is strong'.  Forget all of the people 'everybody knows' are guilty.  Focus just on the subset you know are guilty, because they're mentally competent, and told you they were guilty.

    This is the point in our 'justice' system that seems to me to hearken back directly to Roman courts, where guilt or innocence really didn't matter, just how good your advocate was.  And that seems like a miscarriage of justice, more than real justice.

    'legal guilt' is an artificial condition.  A person is guilty or not, whether or not they ever sit in front of a jury, whether they live their life never having been 'caught'.

  •  In some juristictions a "Public Defender's Office" (0+ / 0-)

    ..just makes the path to jail more efficient and smooths out the assembly-line court docket, but is little or no improvement over a court appointed attorney.

    The dire straits facing America are not due poor people having too much money

    by Anthony Page aka SecondComing on Thu Dec 20, 2012 at 04:57:19 PM PST

    •  I'm sure that's true in "some"jurisdictions (3+ / 0-)

      The numbers suggests in overwhelming fashion that, overall, defendants fare much better with public defender's offices over court-appointed attorneys.

      This is especially true when it comes to capital cases.

      Of course, it depends upon the (financial) commitment to the public defender's office and the way it is organized. Many of the recent PDOs have adopted holistic defense approaches, where they provide mental health support, social services, tutoring, policy work, and a lot of stuff in-between.

      "I believe that, as long as there is plenty, poverty is evil." ~Bobby Kennedy

      by Grizzard on Thu Dec 20, 2012 at 06:04:20 PM PST

      [ Parent ]

      •  There's simply no good answer (0+ / 0-)

        ..when it all comes down to public funds.

        The pendulum has swung pretty far toward punishment versus rehabilitation and I have seen public defenders meeting their "clients" in felony cases literally a minute or two before settling the case with a plea.

        Heaven forbid a person wants to have an actual trial. Get found guilty and the book the judge throws hits the defendant in the head and knocks his ass to prison..

        The dire straits facing America are not due poor people having too much money

        by Anthony Page aka SecondComing on Thu Dec 20, 2012 at 06:09:27 PM PST

        [ Parent ]

  •  Interesting diary. (0+ / 0-)

    You're far more likely to see me at the other counsel's table, but I respect what you do (or will do).

  •  under our adversarial legal system, (0+ / 0-)

    everyone, including the state, is entitled to a vigorous, zealous representative on their behalf. defense counsel's job is to force the state to prove its case, beyond a reasonable doubt. to question every piece of evidence produced by the state, every "expert" provided as a state witness, to see if it, and they, make sense.

    difficult to do that, when resources are scarce , raising the uncomfortable question, just how much justice is being served, in our nation's courtrooms? labs doing shoddy work, police lying, threatening witnesses, prosecutors failing to pass along possibly exculpatory evidence, faulty eye witness identification, have resulted, along with new DNA testing, in exonerating people who were found guilty by a jury.

    poor and innocent will get you 20 to life.

  •  Not guilty (0+ / 0-)

    I'm a 30 + year veteran of the legal wars.  I've been a prosecutor, defense counsel, done personal injury work from both sides, represented hundreds of happy and unhappy divorce and domestic clients, crusaded against domestic violence and for legal services for the poor, and am now on the bench.  Through the years I've gone from idealistic young lawyer who just wants justice to be served to winning is all that matters to give me the money (and a partnership) to tired, cynical country lawyer.  Now I'm back to idealistic, though no longer young.  The view from the bench can be both horrifying as you watch litigants and lawyers move through the process with single minded determination to win at all costs, even if justice may well be lost along the way.  It can be inspiring to watch passionate advocates clash without loosing sight of the rules of law to reach a jury that does come back with a verdict that is just in all senses of the word.  The longer I do this the more I love it. There are monsters of unethical behavior in the legal profession and there are saints.  The answer to the question of how can you represent that guy can be "because I love the law."

  •  Been a public defender for 10+ years (1+ / 0-)
    Recommended by:

    in a relatively progressive Southern city. When asked why I do it, I tell people not to be hokey but I feel like it's a calling. I've always rooted for the underdog and I've always HATED getting in trouble for my bad choices. As a public defender you meet people dealing with one of the shittiest situations of their lives and you help them get through it as best they can. It's not my job to determine who is lying to me and who isn't. I really don't care except insofar as really obvious, easily disproven lies make one's case more difficult to argue.
    Anyway best of luck to you and one word of advice--wherever you wind up please don't go in with the assumption that your fellow public defenders are burnt-out sellouts. Some are, but some are great lawyers and true believers who can actually teach you quite a bit. Keep an open mind, even in the South!

  •  More than the worst thing they got caught at /nt (0+ / 0-)
  •  How Do You Know? (1+ / 0-)
    Recommended by:

    I agree with you. We have a trial system precisely so that the public knows the person is guilty and so that the government has legitimacy to punish them.

    This goes back to a very fundamental question of philosophy, the philosophy of knowing (epistemology). When someone says they know the defendant is guilty they are basing that on a belief that generally does not come from knowing anything. They've heard reports in the media, which has gotten this information (generally) from the government. Have those people ever lied to you? Have they ever gotten it wrong?

    In order to establish guilt to the point where we can say it is permissible for the government to invade someone's privacy, take away their liberty, and potentially kill that person we have to have something that creates sufficient knowledge to justify the action. We use the court system for that because it requires one independent power within the government to convince a separate independent power of guilt based on evidence presented and rational argument subject to the refutation by a competent representative of the defendant. This establishes a certain level of knowledge, and therefore the basic legitimacy for the action.

    Without it, people would wonder whether the courts got it right. This would undermine the legitimacy of the courts, and thereby all government actions. And, obviously, it would lead to abuse of power.

    By this judicial process we are not defending the rights of the accused, except incidentally. We are defending the right of all people to a fair trial and we are defending the public's right to know that the power they've given their government isn't being abused. This is about your rights and my rights.

    Our system of justice grew up over a long period where people thought through these questions and developed an approach that overcomes the philosophical issue of knowing and the legitimacy question. But these are hard concepts that require careful thought about certain issues.

    This is one of the things that drives me crazy about the entire system of abuse established by the Bush Administration (and carried on by the Obama Administration) that I call the Bush dictatorship. For example, they decided not to recognize habeas corpus for a certain class of people. There goes democracy! That's why I created the Prosecuting Officials for Crimes framing page on dkosopedia, as a means to collect information about what is happening to our rights as a result of their failures.

    It's never possible to stop a government from abuse by force. They are always going to have might on their side. We can only stop it with awareness and rational argument. That takes away their power because ultimately even the most dictatorial government depends on a sufficient number of people to keep them in power. They are, in effect, propped up by the beliefs of the populace. The way to democracy is through establishing and protecting those beliefs.

    Thank you for bringing up the topic, which is essential to our understanding of liberal democracy.

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