PD Blues

I went out to one of the public defender branches to give a brief talk to the lawyers during their lunch hour. It was going to be similar to talks I’ve given other times about trying homicide cases that I call "Squeezing the Lemon."

But while dining on the tuna sandwich before my talk, I was told that the greater problem wasn’t trying murder cases, but rather a reluctance to go to trial on any case, even misdemeanors.

So my talk turned into a pep talk, a task akin to creating enthusiasm in World War I troops to go over the top and face the withering machine gun fire because "it’s fun."

This issue of defense lawyers being "gun shy" about trials is not a new one. Contrary to legend, most defense lawyers are afraid of trials and avoid them. (In fact, it’s also common among civil lawyers, mostly for financial reasons. Settling cases is far more cost effective than the time, expense, and risk of actually going to trial.)

But for public defenders it is an occupational disease that can be fatal. I know, because I was infected by it and went through miserable times fighting the ravages. Cold sweats, mental constipation, nightmares (the most common night terror: in front of the jury and you forgot your notes, your tie, or your pants - that wakes you up in a hurry).

Defending a criminal trial is a test of character, a crucible, a coming-of-age ritual for any who survive it. It forces you to face the chilling fear of failure you’ve felt at every stage since childhood - in school, sports, socially.

You fear you will be exposed for the fraud you always feared you were. Everyone will now know that your claimed confidence, your intellect, your wit, your appeal, were all poses. Underneath, you were and are and always will be ... a loser.

The only way to overcome this disease is, I blush to steal a line from Nike: just do it. You have to steel yourself against all the arguments contra:

The duty to do what is in the best interest of the client means urging acceptance of "the deal" ... the judge will hate you and punish your client for forcing a trial when "the deal" was so sweet... Yada, Yada.

But public defenders have an advantage over other lawyers — you are assigned many more cases, thus have more chances to pick the ones that you want to take to trial.

In the beginning, I lost almost all my trials because I pled out my "winners" — took the good deals, and tried only the "losers" — the cases where the offers were no real bargain because the case for guilt was solid.

That was discouraging. Some lawyers would come back from court time after time with wins. I thought I really stunk. Then I found out that the "winners" were cherry picking cases — trying cases the DA knew were weak just to pad stats and boost their egos.

Others would exaggerate the difficulty of the cases they tried in order to impress peers with their genius. "How’d he win that dog?"

The truth is that public defendering is like baseball. If you bat .300 for your career in the big leagues, you’ll be in the Hall of Fame. If you win as many as 3 of 10 cases as a public defender, you’ll be elected God – or disbarred because you must have cheated.

But every loss is really a win. A win for your next case, a win for you because of what you learned - about people and mostly about yourself.

I lost a trial once for a client who had a 10 page rap sheet full of crimes he’d pled guilty to. After the guilty verdict, the client thanked me. This was rare even when I won, but after a guilty on all counts verdict it was stunning. The client explained: "I copped out every time before. But this time, you fought for me. That made me feel good. Thanks."

So, there’s that. Another valuable lesson. And the DA knew he’d been in a fight, too. The next time the offered deals got just a little bit better.

For a long time, I looked forward to each day. There was always going to be a new "war story" in the lunchroom. The PD Office was a bag of mixed nuts back then, eccentric characters who were good for laughs and life lessons.

They had a swagger that was encouraged by the combative generation of WWII vets who ran the office. Esprit de corps was insured by a paranoid temper of "us against them" and "them" was everybody else. When judges complained to our bosses about "obstructionism" because of refusal to go along with the program, our superiors usually listened politely, then smiled. More than once, I heard superiors complain: "Shit, I was going to move Al out of that judge’s court, but now that she complained about him, I gotta keep him there."

Though the first rule was to defend "individuals," not "causes," there was no great reluctance to use the power we wielded because of the sheer number of cases we had to force the system to do better for our clients. Clogging the courts with trials, putting some judges out of business by "blanket" challenges — we acted together to get our way.

Things gradually changed. The next generation of "managers" were rewarded for being part of the system. They cooperated with reforms, like "EDP"- early disposition programs, that benefitted clients and the system in the short term by apparently generous plea bargains if you settled your case early on.

The lessened strain on the system eventually hurt the rest of our clients because there was no leverage to force better deals. And eventually it hurt those who took the sweet deals because when they came back on their next case, they found they were on probation, had a prior conviction, which along with changes in sentencing laws, meant going to trial now was extremely risky, sometimes impossible. In many cases, even if the defendant was acquitted in the new case, he would be found in violation of probation and punished severely anyway.

Strikes laws handcuff public defenders. You pled a kid to 2 burglaries because the judge gave him probation. Now, he commits a minor felony: say, possession of drugs which would deserve probation. But his record now means his exposure is 25 to life. So when the DA offers to "strike a strike," its hard not to take the deal even though the client now gets 32 months in state prison instead of what the crime rates. Who wants to go to trial on a possession — a one day trial – where the client can get life?

The public defender culture is completely different than it was back in my day. Looking at the faces of the 20 or so lawyers I spoke to at lunch, I didn’t see much of the eccentric self-assurance that used to be the hallmark.

After I overcame my initial terror, I loved being a public defender. After about 10 years, it began to wear on me. When people asked me how I liked it, my standard line was: "I hate my job but I love my work." The distinction was important. A job is something you have to do to earn a living; "work" is your "profession."

The "job" requires swallowing the self-righteousness, hypocrisy, bureaucracy, the corrupt and dishonest system, shaving every day, driving in traffic, paperwork, routine.

The "work" is using your skill and experience to actually "help" some people, to make a difference in some lives, to argue persuasively things you think are right, to "keep the system honest," to speak truth to power, to stop the railroad or at least slow it down, to occasionally win.

The rare "thrill" comes when you win a jury trial (win means getting a better result than you were told to plead to before trial). You talk to the jurors afterward and they thank you for "the experience." The judge grudgingly smiles and compliments you for doing what he thought was impossible. Even the DA, your opponent, may gain respect and forge a lasting friendship that only bloodied combatants can share.

And maybe the biggest kick is the ride in the elevator to the office where you can walk down the hall and shout "NG," take the back pats and dump the file into a box.

Every lawyer I know likes to talk about their trials or other trials they heard or saw or were told about. Those are the vivid memories that keep them alive. Few of the clients who took deals make good stories.

The Big Gulp

Probably like other lawyers, I cannot watch any of the T.V. lawyer programs. "L.A. Law" irked me when I was a public defender because I couldn’t afford their suits or even their haircuts, much less the snazzy offices they worked & played around in.

Being in criminal law, the crime / law shows were worse torture. Even supposedly gritty ones like "N.Y.P.D. Blue" and "Homicide" rankled.

My loved ones banned me from movies on the subject after "The Verdict," when I gagged on my Big Gulp in so many scenes that I needed a Heimlich to survive.

So why did I rent "Fracture"? Anthony Hopkins & Ryan Gosling, two of my favorites outsmarting each other, that was the hook.

And I wasn’t disappointed by their scenes together — the brilliant, sly defendant vs. the young, slick D.A. Hopkins and Gosling were fine.

But the plot’s turns that depend on The Law had me laughing and gagging again. The suspense and the payoffs rely on two bits of legalisms that are completely bogus.

The judge throws out a signed confession because one of the officers in the room had been having a secret love affair with the victim, the wife of the guy who confesses that he shot her. I could swallow the melodramatic stretch of this unlikely event. That's not what bothered me. But the law is wrong. No judge would find such a confession to be coerced on that evidence. Nope, uh-uh. Never happen in any court in the U.S.

The second supposedly surprising legal twist is that after the brilliant defendant is acquitted of attempted murder of his now comatose wife, he signs papers that get her plugs pulled and she dies. He thinks double jeopardy will prevent his re-trial. Uh-uh. Wrong again.

This was the same plot blunder made by an Ashley Judd film a few years ago callled "Double Jeopardy". Ashley was convicted of killing her husband when he vanished from their boat and while in prison, she discovers that he is still alive. She is released and goes to find him, confronts him and kills him, getting away with it because as we all know, "you can’t be punished twice for the same crime." Nope. Sorry. Not true. Never has been true. The law would simply apologize for its first mistake and lock you up again.

Now, don’t get me wrong. I get it that shortcuts and contrived plot devices are sometimes necessary to make a story work. I don’t mind it if the inaccuracies are incidental to the main point. But when it is the Big Twisteroo or when the movie is intended as a commentary on "The Legal System," artistic licenses should be revoked.

In The News:

1. Governator Arnie vetoes a criminal procedure bill that would have required corroboration for jailhouse informants, taping of interrogations, and uniform identification routines. Police and "some" DA’s objected to the bill.

2. Matt Lauer’s hard hitting interrogation of Larry Craig reveals that he likes his wife and in not gay, bisexual, or liberal - that is, Craig, not Lauer. Lauer’s cross-examination technique makes Mike Wallace blush, requiring a transfusion. Matt asks hardball questions like: "Pardon me for asking, but weren’‘t those bloggers who outed you embarrassing to a real man like you?

3. PBS’s "Frontline" episode called "Cheney’s Law" exposes more about how our government works than any Poli. Sci. class in any college in America. Those of us old enough to remember the 70's call it "All The Vice-President’s Men."

It Ain't Me, Dude

Over the years, I’ve noticed that there are some songs that are pertinent to my experience as a criminal lawyer. Among the titles that I hummed while slaving in lockups and courthouses were "I Fought The Law (And The Law Won)" by Sonny Curtis and "Please Release Me" by Roger Miller, et. al.

Of course, "Johnny Cash at Folsom Prison" was an album that was full of profound observations about the dilemma of our clients. For example: "Cocaine Blues" [by T.J. Arnall (and many others) reads like a confession by one of my clients:

"Early one mornin' while makin' the rounds

I took a shot of cocaine and I shot my woman down

I went right home and I went to bed

I stuck that lovin' 44 beneath my head

Got up next mornin' and I grabbed that gun

took a shot of cocaine and away I run ..."

The last stanza could have been written as a commentary on my performance:

"...Into the courtroom my trial began

where I was handled by twelve honest men

Just before the jury started out

I saw the little judge commence to look about

In about five minutes in walked the man

holding the verdict in his right hand

The verdict read in the first degree

I hollered Lawdy Lawdy have a mercy on me

The judge he smiled as he picked up his pen

99 years in the Folsom pen

99 years underneath that ground

I can't forget the day I shot that bad bitch down..."

Of course, no modern songwriter’s lyrics are more on the nose when it comes to my generation’s experience about almost everything than Dylan and he might well have been watching some of my early pathetic attempts at defending petty criminals when he wrote "The Drifter’s Escape."

"Oh, help me in my weakness," I heard the drifter say,
As they carried him from the courtroom And were taking him away.
"My trip hasn't been a pleasant one And my time it isn't long,
And I still do not know What it was that I've done wrong."
Well, the judge, he cast his robe aside, A tear came to his eye,
"You fail to understand," he said, "Why must you even try?"
Outside, the crowd was stirring, You could hear it from the door.
Inside, the judge was stepping down, While the jury cried for more.
"Oh, stop that cursed jury," Cried the attendant and the nurse,
"The trial was bad enough, But this is ten times worse."
Just then a bolt of lightning Struck the courthouse out of shape,
And while ev'rybody knelt to pray The drifter did escape"

And Dylan summed up my life when he wrote:

"... You say you're lookin' for someone,
Never weak but always strong,
To protect you an' defend you
Whether you are right or wrong,
Someone to open each and every door,
But it ain't me, babe,
No, no, no, it ain't me, babe,
It ain't me you're lookin' for, babe..." ["It Ain’t Me, Babe." Bob Dylan]

Woes is me

A friend who knows me well chuckles about the black cloud that accompanies my life like a pet tarantula.

I have been in a computer generated coma for 4 days this week.

My hard disk crashed suddenly in the resulting storm, destroying forever about 20 gigs of data: settings, photos, music, case files of every sort, and the hopes and dreams of the last two years of my life.

None is recoverable and so I have to start fresh, as a virgin moving to a new town.

I spent the last day trying to get back online and reconstruct bookmarks, remember usernames, passwords, sites ...

The precious gem of Time is frittering away...