You know you’ve been around a while when you get tapped to give the “Why We Do What We Do” speech. It would seem that once a criminal defense lawyer achieves the right mix of experience and age, he or she gets that figured out. Maybe. I don’t pretend to have it completely figured out yet, but I have been thinking about it lately.
I have a confession to make—I hate going into the jail. It’s not that I have some kind of irrational belief that if I go in I won’t be able to get out. It’s just that it is such a massive logistical pain in the butt. In Tarrant County, you can go from front door to face to face with your client in about 10 minutes, if all goes right. But rarely does all go right. I have sat for 45 minutes in a holdover waiting for a client who never comes. I’ve been sent to wrong floors. Your chances of falling into these black holes increase dramatically within an hour before and an hour after shift changes. You also have to worry about “feeding time” and the occasional lockdown. Anyway, you get the picture.
Once outside, you dutifully make your bill for your time, which will surely get cut. For me, the only predictable thing about the whole experience is that I’ll soon be repeating it.
Then there’s the issue of not just defending your clients, but defending your profession (a/k/a answering the “Have you ever represented someone you knew was guilty” question). Both my wife and I started out in civil law, but both of us were in criminal law inside of a year—I was a criminal defense lawyer, she was a prosecutor. It was a long time ago. We were at some kind of a family gathering and a relative (one of mine) approached us and first spoke to me:
So, are you still defending criminals?
Then he turned to my wife.
[Broad smile and twinkle in his eye] So tell me about some of your cases!
I then stood there and basically listened to an episode of Law and Order as he excitedly asked about every “criminal” she had sent up the river. Ultimately, he turned back to me and asked, “What do you think is going to happen to OJ?” “I hope he walks,” I said. He looked horrified. I guess I got the last laugh on that one.
Over time, my answer to the “Have you ever represented someone who you knew was guilty” question has gotten shorter and shorter, until now I just say “yes” or “no” depending on my mood.
I have friends who are doctors. Never heard one of them suspiciously asked, “Have you ever treated someone who you knew was sick?” In fact, it seems that none of my non-criminal-defense-lawyer friends ever gets confronted with this perceived moral liability.
So why do we do this again?
Last week I had a 19-year-old kid who, right now, is a total screw-up. He is one of those who I got a fantastic result for on an earlier case and within a year had three new misdemeanor cases—one of which was a stupid theft case. Of course, what he really has is a bad drug problem. I got his mom hooked up with an addiction specialist and he got a bed open at a treatment center. I had recommended to his mom that he stay in jail until treatment just so he couldn’t screw up anymore. Once the bed came open, I ran in to plead him (his cases were in no way triable) so he could get to treatment. Credit for time served on the non-theft cases, dismiss the theft case, right? Not much reason to hang a crime of moral turpitude around a 19-year-old kid’s neck, is there? Not so fast. The prosecutor insisted that he take a conviction on the theft case. I couldn’t do that. But he’s going to treatment! We can make it so he doesn’t have to do this again! Too bad. The office policy is a conviction for a theft case and, as I was informed, “My policies are more important than your client.”
I once saw John Hardin—a great lawyer and human being—give the “Why We Do What We Do” speech and his ultimate conclusion was simple: “We do what we do because we are who we are.” To this day, that’s the best answer I’ve ever heard. In any event it’s the only one that explains why the thought of an arbitrary policy being more important than a 19-year-old kid’s future made me want to vomit. We took a deferred.