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

DC LSIC: Orientation Notes, Day 2

Day two was not quite so packed w/pithy little bits of wisdom to share, but there were a few, including:

1. If you're never sort of tempted to breach ethical rules for your client you may be in the wrong line of work. You've got to want to win. You also have to never cross the line even when you're tempted.
2. Do not have sex w/your clients.
3. Jencks is a double-edged sword. You want to take statements and notes from adversarial (prosecution) witnesses, but not from your own.
4. In D.C., every person ever arrested for anything gets a PDID number (Police Department Identification) that that person for life. Lower numbers mean this person was first arrested longer ago. Note that PDID looks a little like P. Diddy. Is there some connection?

Oh, and apropos of nothing but fun: I had drinks w/a superhero last night and it was the most entertaining hour I've spent in some time! We talked about everything from summer experience to the horrors of job searching to love, lust, and its many permutations. Thanks, E. Spat! You are the rockingest!

p.s.: Thanks to everyone who left tips on the job searching. I will definitely be following up on those next week!

Posted 08:19 AM | Comments (1) | TrackBack | 3L crimlaw

DC LSIC Clinic: Orientation Notes, Day 1

I started orientation for the DC Law Students In Court clinic (criminal division) yesterday. Here are some of the things I learned:

1. D.C. Superior court sees about 12,000 misdemeanor cases each year.
2. The DSLIC clinic handles about 100 of those cases.
3. U.S. Attorneys rotate in and out of the misdemeanor docket so often times the prosecutor in your case will know less about misdemeanor law than you do. It's also not uncommon to get a case dismissed for failure to prosecute.
4. “You have to have a very negative outlook when you're doing this job—and be happy about it! Assume the worst, but hope for the best.”
5. “C-10” is the arraignment court. Someone should write a book called “C-10.”
6. “Supervised release” is the new public relations move of federal courts that D.C. has adopted to make people think we don't offer parole anymore. Supervised release is parole.
7. When you first meet your client in C-10, focus on getting him/her out of jail. It is never better for your client to stay in jail. “If you want to torpedo your attorney/client relationship on the first day you meet your client in jail, try telling him 'I think it's best for you to stay in here for now.'”
8. “Get used to the fact that judges are going to yell at you. It's expected. It's required. You get extra credit for that.” Sometimes judges yell at you because they're bored and the want to entertain themselves.
9. Everything we're telling you about the law has this court culture component—what judges do, how the prosecutor works. “It's a human experience; it depends upon the people.”
10. Be nice to everyone in the bureaucracy!

Posted 08:16 AM | Comments (5) | TrackBack | 3L lists

Dream Job Search

Check out this job opening to become an Assistant Federal Defender for the Federal Defenders of Montana. It sounds like a dream job to me! However, if they're advertising now, they want someone before this time next year, right? And an even bigger problem: Federal defenders don't hire people fresh out of law school, do they?

Help! Does anyone have thoughts on these questions?

More generally, I have to put together a public defender job search and I really don't know where to begin. Any thoughts on methods and strategies would be greatly appreciated.

Damn. There's probably nothing that scares a third-year law student more than not having a job! But hey, I don't graduate for nine more months—why would I be nervous about having no job at this point? Well, for those not familiar w/it, let me explain the “usual” path to your first law job: First, you work in a firm during your second summer (between your second and third years of law school), you do well there, and at the end of the summer you get an offer of employment beginning the following year after you've graduated and taken the bar exam.* If I had followed this path, I'd probably have a job offer right now. I started clinic orientation yesterday and spoke w/several of my peers who are in such a position—happy, carefree, with job offers securely in hand. They're looking forward to a final year of law school w/out a care in the world. Only if they failed some classes (nearly impossible to do) would they need to worry about getting a job after they graduate. As for me? As John Stewart is fond of saying, I got nuthin.

*By the way, this is directly related to whether the third year of law school is really worthwhile or necessary. The system basically works like this: Law school gives you some basics and puts you into massive debt. The system assumes (mostly correctly) you will go to work for a firm to pay off that debt, and firms assume (correctly) that you will know next to nothing about the actual practice of the law when you finish law school so they build in a several-year apprenticeship where they make new associates do all kinds of menial and mindnumbing crap as they learn how to actually become lawyers. But since these firm job offers come before the third year even begins, that final year looks an awful lot like just a mechanism to give law schools a lot more money and put law students a lot deeper into debt. That debt helps to perpetuate the system b/c it ensures that new graduates are indebted enough to put up w/the awful workloads and power games of the firms. Cool.

Posted 06:27 AM | Comments (5) | TrackBack | 3L

Trouble With Podcasting?

Ok. So I have to confess to spending far too much time creating, thinking about, and listening to podcasts recently. This means I've found some great ones, but I've also gotten a glimpse of the potential pitfalls of this new medium—at least for me.

The first pitfall is that podcasts can be addictive. For example, try listening to just one episode of the Weekly Radio Address and tell me you don't want to listen to another and another and another until you've heard them all. (For some reason I found the July 16 edition especially hilarious.) Bicyclemark's Audiocommunique is the same way for me; at the end of each show I've heard something that makes me want to listen to another to find out what came before. And one show leads to another, and another, and so on until you've got so many to choose from you could listen to nothing but podcasts, 24/7. (Click the image above for a snapshot of my current subscriptions in iTunes.)

So that leads to the second pitfall: In addition to being addictive, listening to podcasts takes a lot of time and it's kind of hard to do anything that takes much thought while you're listening. So podcasts are great for people who drive a lot or spend a lot of time walking or riding public transit, but otherwise, when do you listen? Creating podcasts can also be very time consuming—fun, certainly, but time-consuming. And now, thanks to Bicyclemark, I've discovered this “soundseeing” thing, so obviously I'm going to have to do some of that, too. But where to find the time?

The third pitfall is not really a pitfall, but just a potential blight on the future of podcasting; I'm talking about the commercialization of the medium. Specifically, I got nervous reading the comments on this post asking for speculation about what venture capitalists hope to get out of their investments in podcasting. The basic idea is that the VCs are betting they're going to start making money on selling music and entertainment that somehow competes with the “MSM” (Main Stream Media). I'm not so worried about that, except that it may mean that all the free music at the Podsafe Music Network will only be free so long as only a few people want to use it; as soon as Podshow thinks it can make some real money off of the music (once we're all used to relying on it to make our podcasts fun and cool), it will start charging. And that's fine, I guess. I mean, I'm sure the artists would like to get paid and they deserve some compensation and there are always other sources of free music and maybe we should all be making our own music anyway.... So whatever. I guess there's no free lunch, even in podcasting.

Posted 06:50 AM | Comments (3) | TrackBack | voices

D.C. Is Neither a State Nor A Not-State: Discuss

D.C. is not a state. Fine. Whatever. Except for two things: We have no vote in Congress and too many damned web forms do not list D.C. as a “state” where a person can live!

First, the serious issue: If you live in D.C., you don't have any real representation in Congress. This may not be well known outside of D.C., judging by the questions I've heard when people see that theD.C. license plate reads “taxation without representation.” Some say this is how it's supposed to be—people in the Capital City is not a in a state but in “neutral” territory where no one has a vote. Others say, fine, don't make us pay taxes then, if we have no say in how they're spent. But mostly I hear people saying: “Bullshit. If this is a democracy we should have real voting representation in Congress.” That's what the voices in my head say, too.

The less serious but more practically maddening issue with D.C. not being a state is that it means that sometimes you can't tell people where you live. This happens when you reach a drop-down menu on a web form asking you to choose the state where you live and D.C. is simply not on the list. This is only a serious deal when you're trying to give someone your shipping address for something you've purchased. Of course, this never happens at Amazon or whatever, but it's happened a couple of times to me recently w/other vendors, and just now w/a survey from Skype. I suspect there's some boilerplate drop-down list code floating around somewhere that lists all the 50 U.S. states but not the District or Puerto Rico or other U.S. territories.

It's true what they say around here: D.C. always gets the shaft.

Posted 11:23 AM | Comments (1) | TrackBack | general politics

Voices #14: Lawyers, Liars & Lovers of Life

The latest edition of Ambivalent Voices offers: More kudos to the Legal Underground Podcast (from which I've borrowed many tips and techniques for use in this podcast), when lawyers are neither lawyers nor attorneys, the Politics Minit w/Yubbledew™, upcoming interviews on Ambivalent Voices, and two new and different podcasts for you to check out.

This one's just me again (sorry), but many new voices should be added to the mix in the next few weeks.

UPDATE: Don't miss the Lawyer/Attorney “comic strip” courtesy of the Strip Generator. [via This Dark Qualm]

Posted 10:02 AM | Comments (2) | TrackBack | voices

Questioning 3L

You may have missed it, but last week the American Bar Association held its annual meeting in Chicago. Who knew? My Shingle noticed, but only to say that the conference didn't offer much for most lawyers. Maybe that's why most of us knew little about it.

But on the heels of that conference the AP ran a story asking: Is the third year of law school really necessary?

At many top law schools, the third year is famously relaxed, a halcyon interlude between rigorous introductory courses and the long hours that await graduates at law firm jobs. There is research and volunteer work, but also a lot of bar-hopping and little studying: 15 hours per week, according to one survey at 11 law schools, compared to 33 hours for first-year students.

But if it's an extended vacation, it's pricey: $30,000 or more at top private schools. And at many law schools, grads can't count on the six-figure salaries awaiting many at the most prestigious programs, so an extra year of debt is a big burden.

The two stories (the ABA Conference and the story about 3L) are linked because apparently the ABA recently updated its accreditation guidelines for law schools “to require more total minutes of instruction, but offering schools more flexibility in how that's structured.” Everyone seems to agree that the third year of law school is currently not very valuable for most students, but they disagree on whether that means it should be made more rigorous or disposed of altogether. As Evan Schaeffer noted, Professor Ann Althouse is firmly in the “make it more rigorous” camp:

It is amazing that one can hold oneself out as a lawyer after a mere three years of education.

Hm. Really? Because lawyers are like, um, brain surgeons or something? The good professor is certainly onto something in terms of most newly-minted lawyers being woefully unprepared to actually practice law, but that's certainly not for lack of time spent in law school! In a comment to the professor's post, “Kevin S.” sums up what I would say are the real issues here:

There is a lot of challenging material in the law. And one could spend a lifetime learning about it. But is one better suited to *practice* law after the third year as compared to the second? How much better (an important question, as one would certainly be more learned with 6 years than 3)? Is the marginal benefit to the public and the student worth an extra $30,000 (or quite a bit more considering opportunity costs)?

I would say the answer to those questions is “no,” “very little,” and “no.” Judging from this essay from Evan Schaeffer—a practicing attorney who's been there—I'm not the only one. There are clearly lots of people who are very invested in making the law seem more complex and difficult than it really is, and these are often the same people who tend to infantilize the public and speak in patronizing tones about how we must protect people from poorly trained lawyers and that the best way to do that is to regulate legal education—hence, the ABA's ridiculous accreditation requirements. For a small taste of just how ridiculous those requirements are, Dennis Kennedy writes:

Interestingly, I had a discussion with a non-lawyer the other day about the nature of legal education and found it difficult to explain the current state of legal education. Especially difficult to explain (probably because I don't understand it myself) is the accreditation process for new law schools, with its heavy emphasis on number of volumes in a school's law library. My friend kept shaking her head in disbelief.

Kennedy goes on to speculate about “whether law school has become impossibly over-academized.” Good question. Perhaps something of an answer can be found in the fact that too many law professors have close to zero experience actually practicing law. That being the case, it's no wonder we get constantly tested on “issue-spotting” and graduate w/out knowing how to file a motion in court. Our good professors are only teaching us what they know and, damn!, can they ever spot those issues!

But the ABA's accreditation requirements are a special peeve of mine because they are probably the single biggest impediment to getting rid of the third year, and of course, law schools will fight tooth and nail to make sure the ABA continues to require the third year because it means so much extra cash for law schools. This creates a self-reinforcing cycle there that's good for no one but the law schools, as far as I can see. The accreditation requirements' emphasis on number of books in the library or number of computer labs or whatever also tends to drive up costs for students who will then go out into the “real” world and often have to deal with older or nonexistent technology and sharply curtailed access to legal materials—a situation for which law school has not prepared them at all. Again, all of this is good for ... whom?

I'll be starting my 3rd year of law school in a couple of weeks and perhaps I will find that it's very valuable. Perhaps not. L-Cubed says he'd rather have his $40k back and I bet I will, too. What is certain is that the insanely high cost of a legal education does not serve the public good. Also certain is the fact that the current system of legal education assumes that newly-minted JD's will learn most of what they need to know for their daily work on the job, which means we pay absolutely astonishing amounts of money to get a credential so that we can then go on to a job where we can learn how to use our credential. Does this really make sense? Is this really the best way to ensure our country's legal system is fair and accessible to all citizens?

Candide, where are you?

Posted 09:40 AM | Comments (9) | TrackBack | 3L