One of the greatest delusions in the world is the hope that the evils in this world are to be cured by legislation.
~Thomas B. Reed (1886)
To shield my clients – those accused of petty, serious or heinous crimes – from the government’s efforts to convict them, to punish them, and to incarcerate them; to do everything in my power, within the limitations imposed on me by law and ethics, to attack the credibility of the government’s witnesses, to expose the shoddiness of the government’s investigation, to cripple the government’s case. And in those cases where conviction is unavoidable, to be honest with my client, to work toward persuading the judge to impose probation, therapy, or house arrest, rather than incarceration, and, where incarceration is inevitable, to work toward minimizing the length of that incarceration.
The Making of a Criminal Defense Lawyer
When I went to work for the Middlesex County District Attorney’s Office in 1991, I was adamant that no criminal would escape justice, at least not on my watch. I was excited to do “right.” That was a long time ago. What I saw of the “justice” system unsettled me. I saw the poor, the emotionally troubled, the drug addicted and the disconnected brought before judges to answer for their alleged violations of law. These men and women were disrespected, scolded and, often, too harshly punished.
…be yourself—not your idea of what you think somebody else’s idea of yourself should be.
~Henry David Thoreau
But what unsettled me, bothered not at all the other assistant district attorneys. The assistant d.a.’s, mostly young and straight out of law school, were smug and fairly self-satisfied; well above those they prosecuted. In fact, they seemed to regard their fellow citizens as unworthy to take their next breath. These youngsters, with little to no life experience, described with glee the depravity of the accused as they pleaded with judges to send the accused to prison – a terrible place that none of these d.a.s had ever even visited or could survive. If the judge agreed, the citizen sometimes shook, his family might weep or even wail and the d.a. almost always smiled. I liked very few of my fellow employees.
Resistance to tyrants is obedience to God.
Of course, this attitude should not have come as a surprise to me; after all, what kind of a person is a position of a prosecutor likely to attract. But what really disappointed me was that many of the Massachusetts criminal defense lawyers – mostly court-appointed – did not appear to care either. They concerned themselves with filling out the necessary court documents to secure their payment – and miserable pay at that. There were, however, a select few defense lawyers who cared and cared deeply about their clients. They were committed to their clients, and wrapped themselves around them like invincible shields. To convict their clients, I felt I’d better be prepared for hand to hand combat.
Jurors should acquit even against the judge’s instructions… if exercising their judgment with discretion and honesty they have a clear conviction that the charge of the court is wrong.
Most of the defendants were not so lucky. Their criminal defense attorneys offered little resistance to convictions. In the unlikely event that the lawyer couldn’t convince his client to accept a nice tidy plea bargain, we’d have a trial. I can recall only one lawyer who impressed me – and he defeated me soundly. Looking back, that lawyer had owned the courtroom – the witness, the judge, and the outcome. I, the young, scrappy assistant district attorney, was never really in the game. That lawyer did me a great service; he taught me what could be accomplished by a criminal defense lawyer who wasn’t awed by judicial trappings or the weight of the accusations and had the audacity to take over the courtroom.
As I grew to appreciate the gap in representation, I felt a moral obligation to help the accused. I brokered generous plea bargains or dismissed the charges. If forced by a superior to try a defendant I didn’t believe had committed any crime, I tanked it. To my superiors, it was obvious that I “didn’t get it.” And, I didn’t. When they couldn’t corral me, they stuck me back in the appeals bureau. I eventually resigned.
The Sanctity of the Law
Do not speak to me about justice, young man. This is a court of law.
~Oliver Wendell Holmes
The United States is often described as a “nation of laws.” The concept that all citizens are subject to the same law, irrespective of wealth, celebrity, or position, is an appealing one. The law is a useful tool for helping us as a nation/community to manage our affairs and interactions. In a mature society, the law would be regarded as a guide, the application thereof subject to judgment. Today, the law is regarded not as a tool, but as sacrosanct scripture. The prevailing belief seems to be that unless each and every violation of law is investigated, exposed, prosecuted and punished, respect for the law is undermined and the structural integrity of the nation’s main pillar compromised. It is the obsession with upholding the sanctity of this “sacred cow” that justifies nonsensical prosecutorial pursuits, such as impeaching a president who, only in the most technical sense, committed the “crime” of perjury when, under oath, he attempted to cover-up an embarrassing extra-marital affair.
Bad laws are the worst sort of tyranny.
~Edmund Burke (1729-1797)
The law is no longer a tool for improving the interaction of members of the community. Instead, it’s now a weapon which the government wields against the citizenry. The law has grown so invasive, that it applies to situations never before contemplated and, as always, any infraction of the law is to be more severely punished than before. If we do not as a society reform our thinking and reliance on counterproductive regulations and punishment, we will each of us find that we can no longer undertake any activity without fear of running afoul of a myriad of laws.
An advocate, by the sacred duty which he owes his client, knows, in the discharge of that office, but one person in the world, that client and none other… Nay, separating even the duties of a patriot from those of an advocate, and casting them, if need be, to the wind, he must go on reckless of the consequences, if his fate it should unhappily be, to involve his country in confusion for his client’s protection.
~Lord Henry Brougham