I am a huge fan of TED Talks. They explore a collage of ideas several times a year through presentations and film in various locations throughout the world. The talks range from the environmental impacts of oil spills through the Gulf of Mexico to the joy experienced through LEGOs. Some ideas are brilliant, while others leave a bit to be desired. Nonetheless, I enjoy any endeavor that encourages and rewards the sharing of new, innovative ideas.
A while ago, I saw one that moved me more than others. It was a talk given by Malcolm Gladwell who, at the time, enjoyed great public anticipation for his book, Blink. I am a fan of Malcolm, and I’ve taken the time to read The Tipping Point, Blink, and Outliers. I enjoy his depth of research as well as his analysis and presentation. In his TED talk, he discusses the influence of Howard Moskowitz on the soda and spaghetti sauce industries. Thankfully, TED posted the video.
So, how does this apply to a criminal defense practice? There is no perfect defense. There are only perfect defenses. Every client is different. Some matured in an abusive, unhealthy, and ugly environment filled with mental, emotional, and physical suffering, and others were nurtured in a loving home in suburban America. Presenting each person’s story requires a high level of customization. A simple heuristic does not do the average client justice, and they each require a high degree of understanding and study. Also consider the possibility of presenting a case to a jury (or panel in the military) where you must cause 3-12 people to identify with the soul who placed his life and livelihood in your hands. Again, the clients’ story must be molded to fit the nature of the venue.
Some of my colleagues (successful ones, I might add) employ the following formula:
Debunking Government Evidence + Destroying the Character of Government Witnesses = Defense
That is, they looked at the crime, the nature of the crime along with ways they can downplay and tear at the opposing party’s witnesses, and they formulate the bulk of their defense upon these impersonal factors. Notice what is missing? The Accused? Check. His/her family? Check. Abuse potentially suffered as a child/adolescent/young adult? Check. History of positive contributions to society? Again, check. The list is endless, and proper representation should involve dozens of facts and factors. Is it necessary (most of the time) to debunk government evidence? Sure. Is it sometimes necessary and desirable to focus on the character of government witnesses? Absolutely. However, those two factors are but a small part of the overall case.
The ingredients for that proper sauce are numerous and varied. Time is required to gather, prepare, and adequately simmer them together. As I see it, my clients (as well as anyone else’s clients) deserve a high level of care, interest, and preparation. Each is unique, with different tastes and needs. One thing is clear, we members of the criminal defense bar owe our clients time and understanding. Without it, we lose touch of what it really means to advocate for the life and livelihood of a fellow human. We must prepare to tell their story–their whole story.