Edmund Burke (1729–1797) wrote, “Those who don’t know history are destined to repeat it.” Burke was a British statesman and philosopher, and generally known as the philosophical founder of modern political conservatism. There are many spin-offs of his famous quote, but the premise behind them all is sound.
A young lawyer came up to me in the courthouse and said he read my article and wondered why Gideon was so important: “Everybody knows poor people have to have a lawyer.” Although his comment was shocking, it did cause me to reflect on how commonplace it has become to take the efforts of others as a “given.”
How did you become a criminal defense lawyer? Some of our number may answer, “I was forced into it because of tort reform.” Others may answer, “My civil firm had layoffs.” Still others may answer, “There was no other field in which I wanted to practice.” It makes no difference the reason because we are all in this together.
Our history as criminal defense lawyers is one of blood, sweat, and cursing. Do you know about the contribution of William Garrow, a British barrister? He started our adversarial court system. More important, he introduced the phrase “presumed innocent unless proven guilty,” insisting that accusers and their evidence be thoroughly tested in court. Do you know the history of John Adams’ defense of British soldiers? What about Gladys Root’s relentless defense of those accused of child sex crimes? Closer to home (and history), do you know about the court battle between Richard Haynes and Ernie Ernest? One of the characteristics these lawyers have in common is the uncompromising way they had in defending the accused (regardless of the character, or purse, of the accused). Every one of these defense lawyers found honor in standing as the trumpet for their client, regardless of the outcome of the lawsuit.
Every one of these criminal defense lawyers has paved a path for us to follow. A path that has fewer ruts because of what they did before us. Because of criminal defense lawyers like these, we have fewer “wheels” to invent.
Being a TCDLA member, you know that means more than just showing up for court. You know it means at times biting your tongue when the judge looks at you and asks if you have any authority “for that”—most often, “that” being your request for relief or information from the government/state that will help ensure a level playing field. When all you really want to blurt out is, “Judge, we are at the presumption of innocence phase and the burden is solely on the government/state to detail how giving the accused what is asked for is not in the interest of justice.” Alternatively, that other phrase that is thought but not spoken: “Judge, we want you to grant us the presumption of innocence advantage that you will tell the jury we have.”
Thus, as criminal defense lawyers, we come to court prepared with our arguments and authority seeking to have not only the letter of the law, but the spirit as well, serve our clients. We do this as criminal defense lawyers because we really believe that the presumption of innocence is not a legal fiction. Can you imagine how effective we would be if we did not believe in this fundamental principal of law and continuously argue this point?
Do you remember burning the midnight oil researching a point of law or an issue you were to argue? Do you further remember the frustration you felt when you found that all the law was against you? I do. I had Professor Hippard for criminal procedure, and he told the class when you find yourself in such a position, all you have left is to “whine, whimper and snarf—you may not get the relief, but make the record anyway.” Therefore, we as defense lawyers make the record, and lawyers not unlike J. David Niehaus are able to change the law. David Niehaus was the defense lawyer who argued the case in Batson v. Kentucky, 476 U.S. 79 (1986). Niehaus’ success would have been far more difficult if defense lawyers had not kept arguing the point.
Many county commissioners, and unfortunately some judges, ask the same question as that aforementioned young lawyer. They do not blink (or give a thank you) when the defense is borne by the defense attorney (especially financially), in the guise of “flat fees.” However, to give a short answer to that young lawyer—and I believe Abe Fortes said it best when he argued Clarence Gideon’s case before the Supreme Court—“Even Clarence Darrow knew he needed a lawyer when he was charged with jury tampering.”
As always, Good Verdicts to you all.
-The Hat Lady