Wednesday, July 17, 2013

Where are we going? And why are we in this handbasket?


It's like a never-ending onslaught of destroying people's rights lately! Did no one take civics class in high school?? What is wrong with people lately?! Recently, this little piece by Lawrence O'Donnell from MSNBC started circulating on Twitter. And I saw it. And it made my head almost explode. 

Luckily, there's a transcript available, so I can just excerpt parts of the transcript for us to review and for me to be angry about. Let's begin: 

Most defendants in America are guilty, or at least are found guilty in court.
Okay, there has got to be a better way to start any monologue.  I'll give him some credit for acknowledging that the majority of defendants are "found guilty in court." But something about this lead-in sentence really irks me. Probably because it's tossing the whole presumption of innocence out the window. He would have been better to start with stating that many defendants are found guilty in court or plead guilty, rather than just flat out asserting that "most defendants are guilty." 

Criminal defense lawyers expect their clients to be guilty. Criminal lawyers never pretend their clients are innocent when they're talking to their lawyer pals in the courthouse about what they're working on. And no lawyer would ever be so amateur as to ask another if his or her client is guilty or innocent. 

Oh, what's that? I'm sorry, I was really busy assuming all my clients are guilty w/o any reason for that assumption other than the fact that they're defendants. What were we talking about? 

Omfg, I don't know where he came up w/ this idea that we just all expect our clients to be guilty. In fact, I usually don't expect that. I don't expect anything one way or the other, until I start to actually review the evidence. And guess what? We don't have to "pretend" our clients are innocent when we're talking to our "lawyer pals" because it's actually not important one way or the other to most criminal defense lawyers whether the person is or isn't. The general public cares, of course, but criminal defense attorneys don't care. We want to make sure the process is fair, the state meets its burden, and that defendants aren't railroaded, regardless of their guilt or innocence. And bee-tee-dub, I never refer to them as my "lawyer pals." Also, we do ask each other if our clients are guilty or not. It's not an amateur move because, unlike Mr. O'Donnell, we don't automatically assume that all our clients are guilty!

When a lawyer wants to know how tough your case is, they always ask the same question: can you put your guy on the stand? And everyone understands what no means. No means your guy is guilty, very guilty, and putting him on the stand will prove that guilt beyond a reasonable doubt.

Seriously, has Mr. O'Donnell ever even talked to a criminal defense attorney before in his life? First off, that's not what we ask to find out how tough a case is. The question we ask when we want to know how tough a case is would be: "what's the evidence they have on your guy?" Because if they (being the State) have jackshit on your guy and it won't even get past a pretrial motion to dismiss for lack of probable cause, it doesn't matter if your guy can be on the stand or not--you'll never even get that far because the State has diddly squat. So, the question we ask is what evidence do they have, followed by how reliable/credible is the evidence? Whether the defendant will testify is completely irrelevant from the determination of whether a case is difficult or not. 

Second off, Mr. O'Donnell is a dumbass if he thinks that not putting a defendant on the stand to testify is because the defendant is guilty, very guilty. There are many reasons why a defendant may not be called to testify. A big one, and one that I see most often, is that the defendant has prior convictions and those prior convictions can be used by the prosecutor to impeach (or discredit) the defendant. Since we criminal defense lawyers want to mitigate the "bad" information that the jury has about our client, we don't want the client's prior record coming into evidence if it can be avoided. So, if possible, in that situation, we'll counsel the defendant not to testify, so that the prior convictions don't come in and the jury doesn't know that about the defendant. We don't want the jury to convict him on the basis of prior things he's done in the past--we want them to evaluate the facts in evidence fairly and not think that the defendant is a "bad guy" so he probably did it. That is one of the biggest reasons I've dealt with when deciding with my client whether or not to testify. Also, in case you've never been sitting on the witness stand and been cross-examined by an adverse attorney, it's scary. And it's nerve-wracking. And that's true even for attorneys who are testifying. I've had to call a prosecutor (the same one, actually) to testify a couple of times and each time, she's said that it's really stressful and makes her nervous. This is despite the fact that she knows what to expect because she cross examines people during trial, despite the fact that she knows me really well and despite the fact that we are actually really friendly with each other. It still freaked her out to have to testify. So, imagine you're someone who has no idea what to expect and you know that the prosecutor is trying to say you are guilty of a crime and you are going to possibly testify and be grilled by that same prosecutor. You don't know what they will ask you or what to expect. Are you really jumping at the bit to do that? Probably not. Some defendants don't want to testify--in fact, many of them don't because it's freaking scary! 

Third off, a defendant's choice to testify in no way, shape, or form implies that he's guilty. If you think that, please do everyone in America a favor and do not serve on a jury. 

...not putting your guy on the stand, especially in a case where he can get life in prison, means the defendant is the most powerful possible witness against the defendant. And that's why you keep him off the stand.

No. Wrong. See previous reasons listed re: why a defendant may not testify, including, ooooh, that weird notion that it's his or her Constitutional right

Lawyers know the jury instructions will order the jury to not consider the fact that the defendant didn't testify, but they know, the lawyers know that in a normal case jurors will hold it against the defendant. They will correctly in most cases interpret the defendant's silence in the courtroom as an indicator of guilt.
No, we don't all "know" this. In fact, most of us believe that the jury will hold the State to its burden, regardless of whether the defendant testifies. And the statement that a jury would "correctly" interpret the defendant not testifying as an indicator of guilt?? Excuse me while I go beat my head against the wall. Hey Fifth Amendment, it was cool while it lasted, but this isn't going to work out anymore.  WTF?! This whole thing is making me break out in hives! 

That's why the most impressive win criminal defense lawyers can ever get is when they get a not guilty for a guy who is so guilty he can't even testify in his own defense.

Hey, guess who's wrong again?! Mr. O'Donnell!!! You want to know what the most impressive win for a criminal defense attorney is? A criminal sexual conduct case; i.e. rape, sexual assault, and/or child molestation. Because those are highly emotional, highly complicated cases. Almost all of the trials I've had, the defendant hasn't testified. As a rule, I tend to counsel against the defendant testifying, so almost every time I've won a trial, regardless of the charge, it's been w/ a defendant who didn't testify. 

Also, once more and I'll say it verrrry sloooowly so Mr. O'Donnell can follow along: Just. Because. A. Defendant. Doesn't. Testify. 





You know, criminal defense lawyers, they like to keep their emotional distance from their clients, who are usually on their way to bad outcomes like prison sentences.

I just....I can't even with this.  Here, if you missed the other post I did about how we actually do care about our clients, you can find it here. I'm not going to repeat it all over again. I'm too busy smashing things in frustration.

Lawyers are the only white people I actually know who have intensely felt experience with the sadness and anger of justice denied in this country.

Right. Except for the white people who have been wrongfully convicted. But he's not talking about those white people. Of course, the justice system has disproportionately burdened non-whites, but it's not like white people are getting charged with crimes and then being handed a "Get Out Of Jail Free" card or that the Innocence Project has never worked to free a wrongfully convicted white person or that Todd Willingham wasn't very likely wrongfully convicted and executed for crimes he didn't commit. In his attempt to describe the unfairness that society has brought upon non-whites through the justice system, O'Donnell makes himself sound even more like an idiot that the rest of his schpiel. 

This thought process, this complete and utter shitting on the Constitutional rights we're all guaranteed, this idea that we don't have to grant "bad" people--people charged w/ crimes--the full panoply of rights and presumptions because we've decided we don't like those bad people...that's why we're all in trouble. Eventually, we'll erode these precious rights down to nothing and everything this country was founded on--all the things that people fought and died for--all those principles will be meaningless. Because we decided we were going to ignore the right to remain silent because only guilty people remain silent. 

And, for what it's worth, if I were ever arrested even if I did nothing wrong, I would 1) not consent to any searches; 2) not agree to talk to police; 3) immediately demand a lawyer to be present for any questioning; and 4) probably wouldn't testify. You know why??  BECAUSE I CAN. Because it's my right to do all of those things. And it's yours, too, despite what blowhards like Lawrence O'Donnell may think. 

1 comment:

  1. Nigel Declan2:14 PM

    Pundits seem to love going after criminal defense counsel after people they deem to be "guilty" get acquitted, knowing full well that most ethical attorneys can't and won't respond to such attacks. This lets them appear knowledgeable to their already-biased viewership with minimal fear of reprisal, since the viewers presumably don't read columns like this.