Snowden revisited

I've noted before that my life in court often reminds me of the "Snowden" reference in "Catch-22". This week provided another example.

I did a prelim for another gang shooting case. As in the one I did the week before, there were 3 defendants. Like the others, they too have nicknames, gang monikers the cops call them. I don't know how these kids get these names. Some of them are meant to make them feel tough - like "Diablo" or "Evil". Others are more descriptive - "Gordo" for instance. I once had a client named "Mousy" whose protruding ears made him look as if he was wearing a Mickey Mouse hat.

We'll call these 3 "Antsy" "Bitsy" and "Cutesy" just for this occasion.

Witness 1 gets on the stand. He was friends with the 3 defendants. He testifies that he drove them to a flyer party one night. Walking from the car, he saw a gun in Cutesy's waistband. At the gate, an argument ensued when searches were requested. Cutesy gave the gun to Bitsy who fired shots into the air, then gave the gun to Antsy who fired straighter, killing a young man standing behind the gate. (This was new evidence, since Witness 1 had neglected to mention Cutesy's presence when interviewed by police. He explained this easily: "I forgot".)

Witness 2 was behind the gate. He testified that Cutesy took the gun from his waistband, fired the shots in the air, and then shot his friend. He didn't recognize the other 2 defendants. (This came as a surprise to the DA and detective as well as all the defense lawyers, not to mention Antsy & Cutesy, because Witness 2 had never identified Cutesy before court.)

Witness 3 was also behind the gate. He saw Antsy shoot the victim (which was consistent with his previous statements).

During a recess, I smirked to the DA that her witnesses were not all that reliable, considering that they contradicted each other and their previous statements. She seemed curiously unconcerned. "It's a gang case," she giggled, "It doesn't matter who did the shooting. They're all guilty and they'll all get the same life without parole sentence."

Of course, she was right. The old rules about discrepancies in eyewitness testimony diminishing the strength of a case are out the window in gang cases for two powerful reasons. First, jurors are so prejudiced about gangs (for substantial societal reasons, I admit) and are likely to overlook little problems like lack of reliable evidence. Second, the sentencing scheme has been toughened in gang cases so that issues like who did the shooting make little difference in the length of time to be served.

So, the defense lawyer's skills and knowledge of the law and traditional rules of evidence are futile. Like Yossarian, I can band-aid the nicks and cuts while my client bleeds to death.

FAQ's

A FAQ from clients to their lawyers: “Do you believe I’m innocent?”

My mind races. Here’s what I want to say.

“It isn’t a matter of belief. I’m neither an athiest nor a fanatic. I’m an agnostic - not enough proof either way. But whatever, I’m here to represent you regardless of what I believe. My job is to evaluate the evidence against you, gather evidence for you, make the best arguments for yours and against theirs."

That doesn’t satisfy too many defendants facing jail or prison. What they want to hear is that you are committed to their side no matter the evidence, that you have a strong faith in their innocence no matter the facts against them.

Defendants have no faith. They are cynics - their only core belief is that the system is bent against them and the right lawyer can bend it in their favor. If it breaks, that's okay, too.

The problem is insoluble and quite sad, really. Faith is a plus, maybe even a necessity for some of life's issues - like love and God - but not others - like the ones lawyers have to struggle with.

And probably not in formulating a foreign policy, either.

I can’t help applying my legal experience to the debate over Iraq. Lawyers are taught to argue effectively by using a more or less rigid form of logic that includes concepts like evidence, inferences, and burden of proof. We are taught to approach problems by examining facts, framing issues, and stating rationales for conclusions.

Over the years, I’ve learned to distinguish plausible arguments from bad ones. When I hear Bush and his supporters argue that opposition to the current policy should be ignored unless accompanied by an alternative policy, I can’t help imagining how this argument would apply in a courtroom.

I imagine a D.A. arguing that although all of the evidence supporting his case has crumbled, his witnesses impeached, his evidence rebutted, the judge should still rule in his favor unless the defendant can prove his innocence by showing who really is guilty.

I hear the argument that although every rationale for the invasion and occupation of Iraq proved false, the policy should be continued because the consequences of withdrawing might be disastrous.

It reminds me of the old joke about the lawyer for a son who killed his parents arguing for mercy because his client is an orphan.

Jurors are instructed that a witness who has lied or been proven wrong in one part of his testimony should be distrusted in others.

Imagine a DA arguing that although all the evidence on which he based his assertion of the defendant’s guilt in his opening statement proved to be false, the judge should still convict the defendant because the consequences might be disastrous.

In fact, this argument is one that DA’s do make. Convict this gang member despite the lack of evidence of guilt in this particular case in order to “send a message” to the community and to deter others from gang crime.

Don’t get me wrong. The Law doesn’t have all the answers to life’s problems. And lawyers aren’t necessarily better than others in solving them. But I find it interesting that many of the proponents of the above arguments are not lawyers, Bush and McCain among them.