Wednesday, October 17, 2007

Part 1 - Why Are You a Criminal Defense Lawyer?


By: Tom Adler

I love lawyers - particularly criminal defense lawyers. Of course there are exceptions for certain individual lawyers but in the main I love them. They have a heightened perception of justice - what’s right or wrong - what’s fair - and they’re willing to put themselves in harm’s way, to take on a judge or a prosecutor in spite of the fact that everyone in the courthouse and occasionally even in the media wants their clients’ to be locked up or legally killed. Some of my colleagues have received anonymous death threats just for representing unpopular clients. They largely stand alone without the benefit of support that is available to lawyers in the large civil firms. I’ve often wondered why a lawyer chooses criminal law as their practice area. My own motivation was revealed to me in a conversation I had with Leslie Abrahamson during a CACJ Board meeting. I asked her why she thought we had become criminal defense lawyers and she looked at me like I was really stupid (in comparison to Leslie, most people are) and said, “For Chrissake - we’re Jewish”. Of course, she was right. Jews have historically been worked over by all kinds of regimes and anti-Semites and it’s almost like we have developed a justice gene that compels us to take on the causes of the oppressed. I was forced out of Austria at an early age by Hitler and most of my relatives were killed during the Holocaust.

So why do non-Jews throw themselves in harms way by becoming criminal defense lawyers? Although I have no proof, I suspect that if you delve into their psyche you’ll find some trauma in which they were unfairly treated. Maybe it was by a parent through physical or mental abuse - maybe by a teacher or a group of mean friends. It’s not really that important - somehow they just don’t like being messed with - thus their career in criminal defense.

But there is a problem with criminal defense lawyers as a group. A few months ago I learned that a scholarship had been named in my honor by CDBA. Since I was still alive, I was fortunately able to express my appreciation. I was also invited, as the first president of the organization, to a celebration of CDBA’s 26th anniversary. It was good to see so many people I hadn’t seen in a long time and share the conviviality of remembering battles won and some lost. But what I mainly felt was the same thing I felt after my presidency ended 24 years ago. There had been plenty of talk at meetings about cases individual attorney’s had won, stands the organization had taken against a variety of evils, awards received, how bad some judges were and lots and lots of display of ego - a subject of which I know a lot about - having indulged myself many times over the years. At the meeting, my name was mentioned several times and there was even a round of applause. I was again most appreciative. It’s a good idea to recognize lawyers for their accomplishments especially in criminal law which by its nature provides for so little positive feedback. But something was missing. I noticed the absence of what we used to term the “good old boys” of which I was a member a while back. These were the established well-respected lawyers who normally only appeared at meetings if there was something to be gained (such as when we hosted judges at the meeting and they could chat them up and attempt to curry their favor).

I also noted the absence of public defenders. I’m not sure why public defenders don’t attend however I’ve always felt that their caseloads forced them to concentrate solely on their individual clients with little interest in the big picture other than grousing about various injustices in the courthouse.

This brings me to the reason for this rant.

I’ve seen enough awards and received enough recognition myself to realize how important it is to the individual recipient. However, these awards are soon forgotten but society’s ills remain until someone does something about them. I think that the meeting that I attended was probably representative of most of the meetings. It was a time to enjoy the company of our colleagues, to make each other feel a common bond and to generally have a relaxing time. It was very much like the meetings that we had over 20 years ago. In my view, however, it’s not enough.

I have known many outstanding criminal defense lawyers who I think did excellent work. However, those whom I really liked and respected the most were the ones that saw beyond the immediate client and focused on the wrong that needed to be rectified. These lawyers worked for no particular fanfare and no need for recognition. They simply took it upon themselves to fix the problem. Steve Perrello, who recently passed away, is a good example. For his entire career he worked alone from his small home office where he fought the state prison system. He had little help, made very little money, asked for no recognition and just did what he thought needed to be done. In other words, he practiced law the way lawyers should - leaving something in the system better than when they started.

This principal of working for the overall good was hammered into my conscious mind years ago when the public defender called me and asked me to do something about a judge in North County who had kicked the public defenders out of his arraignment court and proceeded to jail people who appeared without the benefit of the PD’s counseling services. Why the public defender didn’t do anything about it, I don’t know. From my viewpoint, however, deep in my unconscious mind, I must have had scenes of Jews being carted off to concentration camps because I proceeded to file a class action writ of habeas corpus (I still don’t know if you can do that). I won in the trial court and the appellate court and the mean judge lost the next election because of the bad publicity. What a rush! Something I did actually made a difference systemically. I was hooked.

At the 26TH anniversary meeting I listened to the list of accomplishments of the organization. Frankly, at the risk of catching some flack, I was unimpressed just like I was unimpressed with the accomplishments after my 2 ½ year stint as the first president. Most of the accomplishments have been related to money issues re: contracts and some issues regarding the functioning of the courts. In no way do I mean to belittle this function of the organization. It’s important and it needs to be done. The question is, in this day and age (which is a lot different than 26 years ago), is that all that criminal defense attorneys should be focused on as a group?

Criminal defense lawyers, as a rule, are one issue actors. By that I mean that if their client is getting screwed over, they will fight like a mother bear protecting its cubs or if their fees are messed with by the courts, they will draw their swords. That mentality may have worked before but times have changed. It’s no longer enough.

How many of us are actively involved in the issues of global warming, health care, Iraq, corporate fraud and greed, healthcare, education, poverty, discrimination, capital punishment? But, you say, CDBA isn’t the right place for these issues. To this I reply, why not? Criminal defense lawyers are, in my view, perfectly suited to taking on the larger issues destroying our country. They’re trained, smart, tough and take on the government on a daily basis. Who do you trust more to do the right thing - A politician or a criminal defense lawyer?

As one of the original founders of the organization, and with a lot of white hair, I feel entitled to speak the utmost syllable of my convictions even if it may rankle some members. Let’s try a little less self-adulation and think larger. Wouldn’t San Diego be better off with a good anti-lobbying law? What a fun project for some smart lawyers. And there’s a lot more. All we need is for the good old boys and the public defenders to show up — and for the active members to see that they do. If needed, rename the organization. How about the San Diego Constitutional Law Society? This would broaden the areas of discussion and perhaps energize the group. I think CDBA is very lucky to have Mark Adams as its president this year. He sees the bigger picture and, in my view, will be very effective in leading the organization if he receives the backing of everyone, including the good old boys and the public defender.

These are serious times for our country and I don’t see too many people doing anything about the forces of evil. No one else is going to win these battles except warriors. And I think that’s us.

©2006 Tom Adler

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