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The Rationale for Defense Lawyering Goes Overboard; Silence Reigns

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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.

6 Comments

Can you point me, Bill, to all the posts in which you discuss at length prosecutorial misconduct cases?

I am glad you confined your criticism to a small minority of defense attorneys. the vast majority of defense attorneys take their ethical duties very seriously.

I agree with Berman's point. How about some substantive discussion of Brady violations or flagrant closing argument due process abuses? Defense counsel table pounding is not just a matter of psychopathology or game-playing.

Doug and ronaldhaze --

I'm happy to see that you don't dispute a single word I say in noting that (1) defense lawyers justify their license to push the ethical envelope on the grounds of the imperative of keeping faith with the defendant, and (2) this defense lawyer acted to advance his own agenda and IN DERROGATION of keeping faith with the defendant.

I'd be curious, though, if you'd care to suggest any reason this is not a big story on defense blogs. After all, it's about a death penalty case, a Supreme Court case, and an issue at the very heart of defense lawyering

And that's where I'm going to keep it, BTW. Just as other authors on blogs choose the stories they cover, I do too. Clever (though predictable) as attempted pivots from the subject have become, I'm not going to bite. And it's not like the Internet has a shortage of posts about prosecutorial cheating, now is it?

(If a point be made of it, however, I just did a search and found that C&C has 17 entries mentioning the execrable, Brady-hiding Durham DA Mike Nifong. By contrast, I found but a single entry on SL&P that so much as contains the name of Paul Bergrin, the prominent New Jersey defense lawyer convicted of conspiring to murder a government witness).

Doug,

As I see it, the main difference is that you will generally not see a gaggle of prosecutors defending an obvious case of prosecutorial misconduct. Bill's Nifong example is the most obvious one.

However, even some of the most egregious misconduct by defense attorneys gets defended to the death by their colleagues. On your own blog, you only need to look through the comment sections regarding any posts associated with Lynne Stewart.

At best, your comment is a tu quoque.


Nailed it.

This fake cert petition by a prominent defense lawyer, and the defense-oriented blogs' radio silence about it, is actually a big deal. I've been trying to think of what it reminds me of, and it finally came to me.

It reminds me of what these self-same defense lawyers call the "thin blue line" -- the idea that the cops gather 'round one another in the face of an episode of misconduct, and essentially see no evil and say nothing.

Defense lawyers howl about this, and they have a point. While policing is often dirty and dangerous work, and camaraderie therefore essential, the officer's first duty remains to the law, period. Similarly, while I understand that defense lawyers want to stick together in the face of the Really Bad, Not Nice Government Leviathan, to simply pick lint off their sleeves while the defendant in a capital case gets betrayed so the LAWYER can Carry On The Crusade -- well, frankly, it stinks to high heaven. And it pulls back the curtain on a good deal of what exists in the defense psyche.

I do not disagree that many defend their own excessively and fail to criticize their own sufficiently --- while also attacking their main rivals excessively and failing to compliment their rivals sufficiently.

The cop analogy you raise Bill is an important one here because, as in that setting, one risks becoming (like Serpico) unable to keep doing one's chosen job if he/she gets known as the one who is inclined to be too vocal with self-criticisms. I myself have been often bashed by defense-side advocates for having the temerity to suggest the death penalty could be defensible and that DOJ sometimes makes some good points.

You yourself, Bill, made much of how remarkable it was that NAAUSA spoke up against Holder because you recognize the professional risks of taking one's own to task.

That all said, I agree that this is an interesting and important story. But for me it is another story about folks believing that any crusade (even an unlawful or unethical one) is justified "when a life is at stake." So for me this is a story more about death penalty opposition as opposed to unethical defense behavior.

I would be grateful if/when you see more on this story if you will keep me in the loop, as I agree it is one worth covering (as was the Nifong mess).

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