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Wednesday, October 24, 2007

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.

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