I would like to thank publicly our SBOT President, Buck Files, for making a demonstrative effort to include ALL lawyers in policymaking decisions for the Bar.
As TCDLA President, I join with all TCDLA members in taking pride seeing the names of its members listed prominently on the rosters of SBOT committees. The filling of these positions by our SBOT President has finally given criminal defense lawyers a seat at the big “table.” I am thankful for this demonstration of respect for criminal defense lawyers. Thank you, President Files.
In response to inquiries on our Young Lawyers/Law Student listserve, this article is written.
Graduating from law school when all state post-graduate schools were 4 dollars a credit hour and 40 dollars an hour for out-of-state students perhaps shades one’s understanding. Today, post-graduates may be burdened with school loans the size of a home mortgage—without the home. Regardless, when a person passes the bar and takes a job with a district attorney’s office, they are charged by law “not to convict, but to see that justice is done. They shall not suppress facts or secrete witnesses capable of establishing the innocence of the accused.” CCP Art 2.01.
Think, if you will, of those perversions of justice called “Jail Dockets.” Here, those who find themselves charged with various misdemeanors are gathered to be coerced, by circumstance, to take “timed served” offers. Even more illustrative are those “today only offers”: The defense lawyer is hard pressed to illustrate to the client that more time to investigate may serve to demonstrate their innocence, or at least, whether they may be culpable of a lesser offense. Both these examples of perversions of justice are initiated, with impunity, by those who are bound by law to seek justice, not merely convictions. Willingly initiating these practices, to “move the docket,” may be the excuse to justify the actions, but honestly, it is merely an illustration of blindly following an easy way to keep a paycheck. Under such circumstances clients coerced to make quality of life decisions rightfully lose respect for the justice system.
How is it that these practices are not seen as the legal example of “the Emperor’s New Clothes”? There is not a shred of justice in these practices. Yet as glaring as these injustices are, we hear not a word from those who make law. Instead, we, the stalwart defenders of our fundamental rights, are accountable when these practices backfire. As criminal defense lawyers forced to participate in this perfidy, we must nonetheless relay all offers to our clients. In spite of this, we do all we can to protect those who have entrusted their liberty and lives into our skills.
Moving the docket is only one of the inane reasons for these practices. Undoubtedly, the docket will move just as quickly with just a bit more effort and “thought” on the part of those charged by law to seek justice. Would not statements such as, “I will dismiss this because the complainant cannot be found,” or, “I will dismiss this because the video, which the officer wrote in his report stated he showed the accused committing the offense, cannot be found,” move the dockets just as quickly? Intellectual honesty, a bit of time and “thought,” on the part of those charged by law to seek justice, not conviction, will go a long way in re-establishing respect in our system.
To the young criminal defense lawyer: Do not compound these half-baked perversions by violating your Professional Responsibility. Ask the prosecutors if their offers were made because of “policy,” and if so how, ask how justice is served in this particular case. Note their responses in your file. Do not bring your client before the bench to reveal your communications with words such as, “Did I tell you that the DA’s offer was ‘x’ and that I thought with investigation the case might be dismissed or the charge could be ‘y.’” Did you get your client’s permission to put your discussions on the record, or did you simply say YOU wanted to put it on the record? All you need do is get your client to sign off on your drafted written waiver of the contents of your discussion. Then place the document in your file. We must give concerted thought on how to bring about meaningful change. Change will come by documentation not anecdotal recollection.
We are not unlike Kermit and his green color; it is not easy being a criminal defense lawyer, but we would rather not be anything else.
Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.
—Martin Luther King Jr.
Good verdicts to you all.
The Hat Lady