Realities of Criminal Defense — Updated

UPDATE
Please take a moment and read Scott’s and Rick’s posts. I severely abridged their posts to the point of ruin­ing their mean­ings, and I apol­o­gize about that.
This post has been mod­i­fied in response to Rick’s com­ment below.

Yes­ter­day brought another inter­est­ing post from Scott Greenfield’s Sim­ple Jus­tice. He had been made aware of a blog by a new law school grad­u­ate with hopes of enter­ing the world of crim­i­nal defense. The author mono­logued about the moral dilemma a defense attor­ney has when rep­re­sent­ing a “guilty-as-charged” client. Her ulti­mate answer to it was that a defense attor­ney has a duty to tell her client’s story in order to achieve a fair outcome.

Scott, lodged in a les­son about the dan­gers of blog­ging (Loose blog posts Sink egos, or some­thing of the sort), explained that there is no moral dilemma. A defense attor­ney is there to beat the pros­e­cu­tion and win free­dom for his client. It is, after all, an adver­sar­ial sys­tem. (Dis­claimer: This is my sum­mary. Read his com­ment.)

That was yes­ter­day.

Today I found that Rick Horowitz wrote in response to these posts. One of Rick’s points is that a fun­da­men­tal prin­ci­ple of Amer­i­can Jus­tice is that a defen­dant is pre­sumed inno­cent until the pros­e­cu­tion has proved beyond a rea­son­able doubt that the defen­dant is guilty. There should never be a moral dilemma, since a defense attor­ney is merely main­tain­ing the exist­ing, fun­da­men­tal, pre­sump­tion until if — despite his best efforts — the pros­e­cu­tion wins and proves beyond a rea­son­able doubt that the pre­sump­tion was incor­rect. The pre­sump­tion was never improper, but it may turn out to be inac­cu­rate. (Dis­claimer: This is my sum­mary. Read his post.)

Both Scott and Rick point out that telling a client’s story is not inte­gral to the job of a defense attor­ney. Rick even men­tions that the pre­sump­tion of inno­cence exists with­out the defen­dant say­ing any­thing at all and in some cases that may be the best route to defend­ing a client. In other cases, telling the client’s story may be part of the defense. My real con­cern was with myself; when I read the insti­gat­ing blog post, I felt myself nod­ding in agree­ment. “Why yes,” my uncon­scious mur­mured, “what else is a defense attor­ney to do?” I had asked Scott to give his expla­na­tion, both on twit­ter and in his com­ments, because I wasn’t clear exactly where the orig­i­nal author had gone wrong.

I think I finally fig­ured it out. While in Law School (which I am), tak­ing Crim­Law (which I did), the stu­dents read a mul­ti­tude of cases and opin­ions. I think it’s safe to say that almost every last one is an Appel­late Opin­ion. What is the big dif­fer­ence between Appel­late and Trial Court opin­ions? The facts.
We law stu­dents are exposed to crim­i­nal law with the facts laid out before us. We have a bird’s eye view on the crime, what hap­pened and who­dunit. This almost always plays out when the class dis­cusses the death penalty, and the point made when dis­cussing death penal­ties is that, when there’s noth­ing left to do in defense of the client, you tell his story in the hopes of dis­suad­ing the jury from hand­ing down the death penalty.

I know, I’m high­light­ing yet another dis­con­nect between law school and the prac­tice of law. Noth­ing novel or excit­ing. Just another rea­son for me to sigh heav­ily when I think of my stu­dent debt.

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  1. […] This post was men­tioned on Twit­ter by Moshe Glick­man, Edward Wiest. Edward Wiest said: RT @mglickman New post by me. Based on @scottgreenfield and @rickhorowitz posts on the sub­ject http://​bit​.ly/​77​l​Sc9 He gets it. […]

  2. Since your sum­maries of both Scott’s arti­cles and mine are highly inac­cu­rate, I first thank you for adding the links and, sec­ond, hope any read­ers you have will use them to read what we said.

    In my own post, among other mis­takes, your com­ment seems to state that I am wrong about what my job is and it appears you believe both that my job is to present “the client’s story” and that I will do this until, inevitably, I lose.

    Except, as I noted in my post, the law does not require that I “tell the client’s story.” The most it requires is that I show that the prosecution’s story is wrong. (I may not even have to do that much.)

    Another error in the sum­mary above is that I did not speak of one fun­da­men­tal of our sys­tem, but of two; both are equally impor­tant. This is not a huge mis­rep­re­sen­ta­tion; just because I talk about two, doesn’t mean you have to say I did. But since you also mis­rep­re­sented what I said about the point you did address, it makes me won­der how well you read the article.

    Finally, I’ve han­dled more appeals than tri­als. (When I was a stu­dent, I han­dled the appel­late work for a crim­i­nal law spe­cial­ist and did the oral argu­ment in the Fifth Appel­late Dis­trict Court in our state.) I find the com­ment you make about appel­late opin­ions incom­pre­hen­si­ble. What does “when there’s noth­ing left to plead” even mean?

    The job of a defense attor­ney does not change just because it is a death case. (I’ve been involved in two so far; one while still a stu­dent, where I suc­cess­fully per­formed my job of keep­ing out prej­u­di­cial evi­dence. Nei­ther case involved “telling the client’s story.”)

    Cer­tainly, if (IF, not WHEN) you lose the guilt phase of the death case then your job switches to telling the client’s story in an effort to con­vince the jury, which has now con­victed the client, not to hand down a death penalty. That story is not a story to counter the claim that he com­mit­ted the crime, though. It is to explain why, even though the client com­mit­ted the crime, he should not die.

    There will be times in defend­ing against guilt when “telling the client’s story” is the best way to show that the prosecution’s story is incor­rect. That does not change “the job” of the attor­ney. The job of the attor­ney remains this: to force the pros­e­cu­tion to prove, beyond a rea­son­able doubt, that the accused per­son is guilty as charged. If the attor­ney is suc­cess­ful at that, he will have per­formed his duties, even if he never tells the client’s story. Even IF (not, as you seem to indi­cate is inevitable, WHEN) he loses.

    • mglickman says:

      I knew I should have spent more time on the phrasing.

      I was try­ing my hard­est to say that your post turned the light switch on in my mind why I auto­mat­i­cally agreed with the whole “telling a story” as opposed instantly pick­ing up on the larger and more fun­da­men­tal parts of defense attorney’s job.

      What obvi­ously did not com­mu­ni­cate at all, but that I was try­ing to say, is that Crim Law (at least my expe­ri­ence in it) spends a lot of time dis­cussing the death penalty, and the idea of telling a story to con­vince the jury not to hand down a death sen­tence. That was what I was refer­ring to with the phrase “when there’s noth­ing to plead”. I should not have used a term-of-art in a throw­away phrase, sorry.
      I know I found it very easy to make the leap from con­vinc­ing a jury not to hand down the death penalty to a con­victed appel­lant to telling the story of a defen­dant to achieve a fair out­come. That was my point: the intel­lec­tual exer­cises we did in crim law primed my view of the defense sys­tem, to focus on equity over exculpation.

      I couldn’t have intended a more oppo­site mean­ing than what you read in my post, and I hope this com­ment (while prob­a­bly as poorly writ­ten as the orig­i­nal post) explains that.

  3. Ah! Well, as you appar­ently know, that makes more sense.

    Thanks for clar­i­fy­ing. And I’m glad my post turned on the light with­out gen­er­at­ing (I hope!) too much heat! :)

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Love of justice

This post is some­thing I have been think­ing on for a while, but Laura McWilliams prompted me to post it with her Love of the Law, part 2 post.

I went into law school with a gut feel­ing that I could never defend crim­i­nals, and that if I went into Crim­i­nal Law it would be as a prosecutor.

Then I was intro­duced, through the eyes of cases skimmed dur­ing class and through the per­spec­tive of the Crim­i­nal Defense attor­neys I “met” through twit­ter, to the Crim­i­nal Injus­tice sys­tem of our country.

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Scott Greenfield

Today is Scott Green­field Day.

I know it is because the blawgers I enjoy fol­low­ing have told me it is.

I have quoted Mr. Green­field exten­sively (or what counts as exten­sively for this blog) here, and it’s not a coincidence.

It’s also not a coin­ci­dence that he is one of the main rea­sons I have become so incred­i­bly inter­ested in crim­i­nal defense.

That will be all.

Berghuis v. Thompkins

The Supreme Court issued Berghuis v. Thomp­kins today. In it they held that a defen­dant must make an affir­ma­tive invo­ca­tion of his or her right to remain silent and to an attorney.

Thomp­kins, the defen­dant, was sub­ject to a 3 hour inter­ro­ga­tion in an 8 x 10 foot room. dur­ing the entire inter­view, Thomp­kins remained silent — exer­cis­ing his right to remain so. SCOTUS decided that remain­ing silent isn’t enough, a defen­dant must make a “sim­ple, unam­bigu­ous” state­ment such as “that he wanted to remain silent or that he did not want to talk with the police.” (page 10 of the major­ity opin­ion) and that fail­ing to make such a state­ment meant that he did not invoke his right. To remain silent. By remain­ing silent.

The court then decides that remain­ing silent for nearly 3 hours and finally giv­ing a mono­syl­labic response is “suf­fi­cient to show a course of con­duct indi­cat­ing waiver.” (page 14 of the major­ity opinion)

Among the ridicu­lous­ness of this deci­sion — and I believe it is ridicu­lous — the thing that strikes me the most is the way the court ana­lyzes the issues. The Miranda warn­ings exist to inform defen­dants of their rights, and the options open to them. They are asked whether they under­stand the rights, so the warn­ing is obvi­ously for the defen­dant. So why does the court (and I’m not lim­it­ing this to Berghuis, it applies equally to ear­lier cases such as Davis, which this opin­ion relied upon) assume that the defen­dant knows he must break his silence imme­di­ately after being told that he has the right to remain silent?! Change the #$!@#& word­ing of the warn­ing! Every­thing else in the opin­ion stems from that sim­ple idi­otic assump­tion. Waiver only comes up since the court found that Thomp­kins never invoked his right to remain silent.

I know I’m not adding any new or bril­liant analy­sis, but I had to get that off of my chest.

One man’s anal retentiveness is another man’s freedom

In my Mary­land Crim­i­nal Prac­tice class this evening, the pro­fes­sor men­tioned an unre­ported opin­ion of the MD Court of Spe­cial Appeals that was issued on Tues­day, May 24th.

Par­en­thet­i­cally, this is an incred­i­bly inter­est­ing and seem­ingly prac­ti­cal class that is taught by Judge Dana Levitz, a for­mer State’s Attor­ney and head of the trial divi­sion for Bal­ti­more County and for­mer Md. Cir­cuit Court judge who is now the judge who deals with the ini­tial incom­ing prayers for jury cases from the Bal­ti­more County Dis­trict Courts. I plan on devot­ing an entire post to Judge Levitz and his phi­los­o­phy regard­ing his cur­rent position.

The opin­ion, Clark, Dar­rell Mau­rice Jr. v. State, Docket 1393/08, was issued by Judge Davis. To (very briefly) sum­ma­rize, a first-degree bur­glary con­vic­tion which car­ried with it a 20 year prison sen­tence was vacated as a result of a slight, but incred­i­bly impor­tant, defect in Bal­ti­more County’s form first-degree bur­glary charge lan­guage.
The form lan­guage uses a short-form cita­tion to estab­lish the ele­ments of the crime, which I just learnt is per­fectly accept­able. How­ever, instead of cit­ing the statute within the charge, the cita­tion is recorded after the required con­clud­ing phrase of “against the peace, gov­ern­ment, and dig­nity of the State.”
The defense attor­ney moved to dis­miss the charg­ing doc­u­ment as defec­tive on this ground in pre­trial but the trial court refused, ask­ing how that could make any difference.

The Court of Spe­cial Appeals begged to differ.

Spec­u­la­tion as to how this will affect claims of inef­fec­tive assis­tance of coun­sel and whether this would or would not be counted as being charged in terms of dou­ble jeop­ardy were bandied about in class, but the most impor­tant thing Judge Levitz wanted us to get out of the case is how ripe with pos­si­bil­ity charg­ing doc­u­ments are for defense attorneys.

Like I said, this seems like a prac­ti­cal class.

Think of the children!

Sex offence is a treach­er­ous subject.

As a father, I am gripped by the slight nau­sea and imme­di­ate gut-reaction of want­ing to hurt some­one who hurts chil­dren. I’m okay with that. Child rapists are among the low­est of the low; that’s not some­thing I will change my mind about.

I feel sim­i­larly, if less vis­cer­ally, about a man who forces him­self on a woman — your stan­dard rapist.

If our laws were directed specif­i­cally at those mis­cre­ants, there wouldn’t be the (same) prob­lems we cur­rently have. Unfor­tu­nately, some­one, and I’m not sure who, decided that the only way to keep our chil­dren safe is to come down hard on sex offend­ers. Sex offend­ers has become syn­ony­mous with child rapists in the mind of the pub­lic, so any­thing done to and in pur­suit of sex offend­ers is fair game.

That by itself is wor­ry­ing, since even the low­est of the low have rights, but it just keeps get­ting worse.

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Sentencing anarchy

Sen­tenc­ing is hard.

I know, it’s an incred­i­bly dif­fi­cult line to toe; try­ing to bal­ance pub­lic safety, pub­lic opin­ion, vic­tims’ expec­ta­tions, deter­rence, reha­bil­i­ta­tion and equity. How much def­er­ence is due to any of those fac­tors? When politi­cians decide to get involved in the sen­tenc­ing, it mud­dies up the already murky pool.

There are some things, even among hard deci­sions, that should be no-brainers. If I were to ask you whether a con­victed crim­i­nal should get 5 or 15 years in prison, it’s not always an easy deci­sion to make. If I were to ask you if the leader of a vio­lent drug gang should receive a lighter or harsher sen­tence than a young woman who placed a 13-yr old boy’s hand on her “brasier-covered breast,” as Scott Green­field put it, that’s not such a hard decision.

One would think.

Yes, there is leg­is­la­tion that is in play. And yes, these are dif­fer­ent states. But this type of arbi­trary dis­par­ity occurs day in and day out.

I’m not offer­ing any solu­tions. I’m just point­ing out how bro­ken it is.

Hank Skinner

I sub­mit­ted my request at http://www.governor.state.tx. us/contact/

I am weigh­ing in on the impend­ing Hank Skin­ner exe­cu­tion. I believe it would be a shame to allow this to go for­ward for two main rea­sons.
The first rea­son is one of jus­tice. If there remains untested evi­dence that may excul­pate Mr. Skin­ner, not allow­ing it to be tested prior to his exe­cu­tion would cast a pall over all aspects of the crim­i­nal jus­tice sys­tem.
The sec­ond rea­son is one sim­ply of pub­lic rela­tions. Allow­ing a 30 day reprieve, solely for the pur­pose of test­ing the DNA, seems like such a minute ges­ture to com­bat the seri­ous pub­lic­ity issue that this has generated.

Please make the right choice, and help guide any oth­ers nec­es­sary in mak­ing that choice.

Moshe Glick­man

Abbot v. MD

Over a year ago, I helped a local attor­ney on a crim­i­nal appel­late case. I did some legal research and helped draft the argu­ments for the client’s appeal to the MD Court of Spe­cial Appeals.

In Octo­ber, I sat in the court­room after meet­ing the client and lis­tened to oral argu­ments on the case. I was still involved enough that I was mouthing answers to the court’s ques­tions from my seat against the wall.
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Thoughts on Maryland v. Shatzer

The Supreme Court recently ruled that there is a 14 day time limit to a defendant’s Miranda rights.
Scott Green­field has writ­ten about it, as has Orin Kerr.

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Wreaths over water

Scott Green­field over at Sim­ple Jus­tice posted today about the cus­tom of lay­ing wreaths on the graves of those who have made the ulti­mate sac­ri­fice for their coun­try, thanks to a pro­gram called Wreaths Across Amer­ica.
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