The first item in the News Scan notes in brief terms something that's actually quite revealing: A cert petition ostensibly for death row inmate Micheal Ballard was filed by a Philidelphia attorney, Marc Bookman, without Ballard's knowledge and against his wishes. Indeed, Bookman is not Ballard's attorney at all and, so far as I have been able to find out, never was.
Question: How many million times have defense lawyers pounded the table that their entire raison d'etre is to serve the client in his fight against the power of the state? The need for such service, and unyielding fidelity to the client, justifies, so we have been lectured, even intentionally misleading behavior, so long as that behavior does not violate the canons of ethics or the law. It is not up to defense counsel to serve justice; that's the prosecutor's job. It's up to defense counsel to serve the desires of the client and let the system sort it out from there.
Given that, you would think that the usual suspects among the defense-oriented blogs would express at least some misgivings about Mr. Bookman's "I-don't-care-what-the-defendant-wants" stunt. I've looked at a few such blogs, and I can't find a word about it.
Q: Why not?
A: Because, contrary to The Standard Line, it's not about the client. It's about attitude, specifically the lawyer's attitude. The client is, however, a dearly beloved artifact and a great cover story.
What is the defense lawyer's attitude? I often wondered about that in my years as a federal prosecutor.
The attitude varies quite a bit. The ones I have seen are (non-exhaustive list): Good-hearted support for what is taken to be the "underdog;" opposition to the "racist system;" unresolved juvenile rebellion against authority; (related) smart alec sentiment left over from seventh grade; general contrariness; sympathy for those seen as never having had a chance; contempt for society and social conventions (this is why you see male criminal defense lawyers, but never any other kind, wearing pony tails); anger; warmed-over Marxism; hard- or soft-core anti-Americanism; libertarian suspicion of rules; and libertarian-on-steroids suspicion of anything the government does.
Of course there are more mundane attitudes. The attitude of a number of my former USAO colleagues who went on to white collar defense was to make a lot of money (something they have in common with zillions of other people). The flip side is the sort of underbelly of the defense bar -- those who didn't do so well in law school and make a living off court-appointed cases because food needs to get put on the table.
The reason I bring this up in the context of the fake Michael Ballard cert petition is to put a pin in the thundering self-righteousness of the ideological defense bar. They're a minority -- a small minority, I think -- but boy, are they loud. Those of you in prosecutors' offices see them all the time, and it's always the same thing: You are the enemy of the Constitution. You're also a thug, a Puritanical prig and a Klansman wannabe. You routinely indict innocent people, then extort guilty pleas by threatening unearthly sentences. The agents you call to the stand are "testiliars." And the judge, if he's not in on it exactly, turns a blind eye, either because he's morally indifferent or he doesn't want to be late to his golf game or both.
Facing all this, so the story goes, defense counsel's iron-willed fidelity to the client is the backbone of liberty.
Except, that is, when the representation is fabricated to advance, not the client -- there being none -- but the personal agenda of the lawyer. At that point, the desires of the defendant are not only not central, they simply disappear. It made not a particle of difference to the lawyer who filed the petition in his name what Michael Ballard actually wanted.
That's why it's so revealing that nary a dug-in defense blog is talking about the Ballard case. For those with a lot of thunder but not much introspection, it's best to remain quiet about what the Ballard "cert petition" actually shows.