Complicating the Defense

In the past couple of weeks I've witnessed or participated in a small number of somewhat troubling conversations related to the question of why criminal defense lawyers do what they do, and why prosecutors do what they do.

In one such conversation, a law student was arguing that prosecutors and defenders are basically motivated by the same ideals of justice and fairness, but with different ideas of what those things mean. For prosecutors, it's fair and just to lock people up for very long periods or even kill them if they break society's rules. For defenders, it's fair and just to keep people out of jail and instead provide them with the means to resolve whatever problems they have in their lives that led them to break—or be accused of breaking—society's rules. The public defender involved in this conversation dismissed the argument categorically and vehemently, arguing instead that defenders and prosecutors have absolutely nothing in common, that they were essentially different animals w/entirely different motivations and goals. The PD's argument basically seemed to be that prosecutors are just very evil people w/no feelings.

In a second such conversation, a law student was arguing that she wanted to be a prosecutor because she wanted to help people and she thought she could do that better from inside the prosecutor's office than she could as a defender. The public defender in this conversation simply could not accept that possibility because, again, he seemed to be of the opinion that prosecutors are something very close to pure evil and incapable of redemption. From his perspective, the big sin of prosecutors is that they simply do not care at all for defendants; they don't see a person accused of a crime, they see a criminal, and that's really not a human being at all, so all they want is to put that person away and get another X in the “win” column. The defender kept repeating: “They don't care about them [the accused]! They just don't care!”

These conversations trouble me for a couple of reasons. First, it surprises and disappoints me to think that defenders have such simple and uncomplicated views of the prosecution. “They're just bad.” Really? Well, isn't that what they say about our clients? If defenders dismiss prosecutors as just evil lowlifes who don't care about other people, aren't we being just as inhumane and uncritical and ignorant as we accuse them of being? Second, I find it hard to believe that these public defenders started their careers with these opinions, which suggests that a few years of the job has turned them into ... well, how to say it? Rather bitter and twisted people? I hate to think that these are the views I will hold in a few years.

Don't get me wrong. I don't love prosecutors or think they are generally terrific people. However, I'm willing to give them a bit more benefit of the doubt. Everyone I've known who has been or is on his/her way to becoming a prosecutor is motivated by a desire to help people and to do something good for society. I generally disagree with their methods toward this goal, but that doesn't mean I think they are evil. I think they are wrong. They think I am wrong. We disagree. But it also seems that it's crucial to have good people on the side of the prosecution—people with good judgment, people who really care about the responsibilities they carry and who will work hard to make good charging decisions and to conduct their prosecutions ethically and fairly. And sure, I have seen that there are prosecutors who are none of these things—they really do act as if they have no concern for anything other than the “win” and they are willing to do all manner of unspeakable—and criminal—things to get it. But they can't all be like that ... can they?

Posted 06:28 AM | Comments (7) | TrackBack | crimlaw

DC LSIC: Orientation Notes, Day 3

1. You often get more discovery in civil cases than in criminal cases where your client could go away for a long time—or be killed.
2. Discovery is always “upon request.” If you don't ask, you don't get, and you can't whine.
3. Never underestimate the laziness of the U.S. Attorney's office—not the individuals, but as an entity.
4. Investigation is the best thing to do and can be the best part of your job. You find out about all the best restaurants that nobody knows about and you meet all kinds of great people you would never normally meet.
5. You must investigate everything. For example, Johnny St. Valentine Brown was a very very bad man who helped put thousands of people away for a very long time, but no one knew how bad he was until someone finally investigated his background.
6. When you read the rule, and you follow it, then you're good.
7. The truth may not set you free but hopefully it will set your client free, and if it not, Rule 16 will. [I can't find the D.C. rule online, but it's based on the Federal rule.]
8. Student attorneys are eager and sincere and full of energy. We come before the jaded court that has seen everything and we are like little puppies. The judge is not gonna want to shoot the puppy.
9. C-10, the misdemeanor arraignment court, does not smell great. It's in the basement, is poorly lit, and the sound quality sucks. Court proceedings are supposed to be public, but in C-10 they are conducted in such a way that it is basically impossible for the public to hear what is happening.
10. The D.C. Superior Court is a model of bureaucratic complication. There are at least half a dozen different clerk's offices scattered from basement to fourth floor throughout the building. Perhaps I will learn some rhyme or reason for it all in time.
11. The U.S. Attorney working in C-10 has a team of support staff to assist him or her. There is an entire area of the courtoom given over to the U.S. A's files and staff. It continues to surprise me that prosecutors have offices and staff in courthouses, then they go to courtrooms where everyone pretends the proceedings are “objective” or in some way neutral.

Posted 06:06 AM | Comments (1) | TrackBack | 3L lists