In the last couple of days, criminal defense blogs have been en fuego because of the recent article by Hartley, R.D., et. al., Do you get what you pay for? Type of counsel and its effect on criminal court outcomes, Journal of Criminal Justice (2010) highlighted by the American Bar Association. The basic conclusion of Hartley is that public defenders have just as much success in representing their clients as private practice defenders.
Naturally, both private practitioners and public defenders have their own takes on this issue. Two great analyses of this article are from Scott Greenfield and Mark Bennett, and I encourage you to read their opinions (please note that Mr. Bennett’s analysis is contained in 6 separate entries, starting with this one and ending with this exclamation). The most notable gripe from those in private practice is that Hartley heaps praise upon the closeness of public defenders with their prosecutorial counterparts as well as the judiciary. His definition of good defense work causes the most consternation, and this definition defies what most members of the defense bar believe to be zealous advocacy. Hartley lauds the existence of a courthouse “workgroup” that facilitates smooth case processing and administration of justice.
Workgroup? Justice? Where do I begin?
I’ll start here: As it applies to my clients, I don’t give a damn about justice. I care about my clients’ interests, their priorities, their lives, and their wellbeing. I will do what I believe is legally necessary preserve as much (or all) of those as possible. Justice is something a prosecutor tries to get by giving someone a criminal record and putting them in jail. In a vast majority of cases, I fail to see where justice furthers the interests of my client.
Justice is a wonderful word for politicians and others seeking to gain and maintain employment in the court/criminal justice system. Many politically correct pundits use the term like a nervous tick, and it usually accompanies the word “values.” Those with only a prosecutorial background talk about justice as though it is all that matters. Those of us who understand both sides of the system use the words advocacy, representation, zealous, and adversarial.
Justice is a matter of opinion, not principle.
As for the courthouse workgroup, if I am ever discovered as a member of some courthouse workgroup that seeks to efficiently dispose of criminal cases, please have me disbarred, or executed, or both. If I were to act this way, it means that I have some inoperable tumor pressing upon the logic portion of my brain. So, I probably only have a few months to live anyway, and I certainly do not need to be practicing law with such a debilitating growth in my head.
Our system is an adversarial one, and it has been since our constitution was signed. If the defense bar were to join a workgroup, we forfeit our duty of representing our client regardless of the team and evidence stacked against him/her. Being a part of a workgroup implies that I am in harmony with the other players in this game. I am not. If I alienate them, harm their cause, and cause discord and dissent, I’m probably doing what is necessary for my client. I have no desire to make the folks at the other counsel table happy. I only care about the person sitting at my counsel table.
When I proverbially bloody the nose of the prosecution, the last thing I’d ever do is provide them a tissue to stop the bleeding.
The Military View
As the Senior Defense Counsel at Fort Leonard Wood, I had a wonderful opportunity to train and mentor young defense counsel. I praised their efforts often and cared for their professional growth, but I also reprimanded them severely if I suspected they were concerned about the feelings or image of the prosecutors. Nothing caused me to breathe fire more than when I heard phrases such as “I thought it would be courteous to inform the prosecution that…” or “I didn’t want to cause a scene…”
Thankfully, the military system largely supports a defense counsel truly advocating for his/her client. Yet, the shadow of military rank and career progression often tempt young counsel to stray from their duty to their clients. Nothing is more sad than a counsel abandoning their post because of fear that some Colonel might try to harm their career.
Uniformed military defense counsel are, as a general rule, fine advocates and capable attorneys. The system is not without its faults, as with any bureaucratic organization. At the same time, there are some amazing advantages–one in particular.
The military has a rule that is distinct from any other US criminal justice system. If a servicemember faces punitive action, they are entitled to representation by a military defense attorney–regardless of income. The client has the choice of whether to hire a civilian defense attorney at their own expense. Here’s the kicker: when they hire a civilian attorney, they do not lose their assigned military counsel! Therefore, for those able to afford a civilian attorney, the client has the power of assembling a defense team, not just hiring one person to defend them. Literally two for the price of one.
So, the article written by Hartley does not account for the various nuances of the military system. After all, it is hard to argue that only one attorney is better than a team of at least two.
Additionally, military attorneys do not make a career out of criminal defense. They typically arrive in a defense job after a few years of experience, of which some might include time as a prosecutor. After a couple of years as a defense counsel, they are moved to another job in the Army firm–most likely away from the courtroom. By the time they might be considered “seasoned trial attorneys,” they are removed from courtroom duties and assigned as supervisors and administrators. If an accused wants a lawyer with more than two years of trial experience, they must look to the private civilian bar.
The employment source of the attorney matters little in my eyes. Rather, their stance on representation does. We have a choice. We can join a workgroup and quickly and seamlessly dispose of cases and clients, or we can advocate for our clients regardless of the hardship or hard feelings it creates. What will it be: the harder right, or the easier wrong?