Seriously.

Sometimes people will ask me how I became a criminal defense lawyer. I tell them the truth: I used to have a high-paying job. I got tired of it. Decided having (enough) money was just too much for me, so I decided to go to law school and become a lawyer instead.

When I went to law school, it was with very different ideas about what kind of lawyer I would be than the ones I….

Wait…how do I put this? I started to say “than the ones I had coming out.” The problem is that my ideas of what kind of lawyer I will be are still evolving, four years after I started my solo criminal defense law practice. I have no idea what kind of lawyer I’m going to be. On my best days, I think “a good one.” On many days, I wonder if I’ll ever be good enough. On not a few days, I wonder if I’ll just throw in the towel and try to go back to having a real life.

This much I worry about: will I become the kind of criminal defense lawyer who too carefully focuses on “picking” his “fight”?

Let’s go back to the ideas I had going into law school. No, let’s go back a little farther, because that’s what you really need to know in order to understand what happened to me.

From the late 1980s to the mid-1990s, I attended California State University, Fresno. Affectionately known as “Fresno State University” — a name deemed not appropriately “chic” by…well, those who prefer “California State University, Fresno” — it’s not exactly an Ivy League school. I studied a lot of things. I didn’t have a goal, other than to see what I could learn. I was interested in anthropology, psychology, history. I ultimately ended up somehow with more classes in philosophy.

I like to say that I studied philosophy “with an emphasis in cognitive science,” but officially, CSUF did not have such a degree; ultimately, I graduated with a degree in plain ol’ philosophy (with a lot of what CSUF called “independent study” credits wherein I studied cognitive science, which is what I was really interested in). How does a “person” spring out of what is best described as a grayish-white biological curd? Is it epiphenomenal? Or was Descartes right? Or will the evolution of science turn us all into reductionists?

Despite this obvious interest in people, I ended up working in the technology field for quite awhile after graduating. Ironically, it was the interest in cognitive science that did it. Back in the early 1990s, we were using a quaint little (by today’s standards) network called either “ARPAnet,” or “the internet,” which connected a growing number of universities, so that we could explore connectionist theories of how the brain worked, model brain processes. Many of us, along the way, got hooked on the side effects of “the internet”: email, IRC (Internet Relay Chat), and other means of communicating with people we might never meet. (Almost 20 years later, I still have a friend — Avi Golden of New York — in a slightly-parabolic orbit of friends, whom I’ve never met even though at periods of our lives we’ve communicated almost daily.)

When I graduated, I wanted to stay connected somehow. And right around that time, Mosaic, the “web browser” that would help popularize the Internet, came to be. “Ordinary” people could now get on the Internet; that is, you didn’t have to be involved in some kind of research and sign up for an account through the university. I won’t bore you with the details, but my prior experience with the Internet — and the absence of ads in the “Help Wanted” section of The Fresno Bee seeking Philosophers — made me a shoo-in with the first ISPs (Internet Service Providers) in the Fresno area.

Eventually that lead to a good-paying job as Director of Information Systems for the then-third-largest yellow page company in the United States, which just happened to have its home office in Fresno, where I met Jim Varon, in-house counsel.

The man whose words would later doom me to law school.

When I went to law school after a more-than-six-year hiatus from academic pursuits, I was re-exposed to a bunch of people supposedly pursuing (or so I thought) higher-level learning. Although I had anticipated becoming a “technology” lawyer, whatever that was, I was appalled at some of what I was hearing from the “Law & Order” crowd. I still remember the turning point; the day I knew I was going to be a criminal defense lawyer.

We were reading a case meant to teach “the legal meaning” of “willful,” as opposed to the ordinary everyday meaning of “willful,” which just happens to be fairly close to the same thing. As I recall now, the relevant facts involved a man convicted for “willful refusal to pay child support.” Only it wasn’t, the appellate court said, because he was homeless, didn’t have any money and — if I’m remembering it correctly — he might even have had some mental issues which precluded his ability to have “willfully” refused to pay.

One of my classmates was horrified. “I can’t believe they let him off on that technicality!,” she exclaimed.

Technicality.

From that moment on, I knew what I was going to be doing as an attorney.

I fight over technicalities, only I refer to them as “laws.” (Sometimes I fight against laws which are immoral and “technically” shouldn’t exist because they clash with more foundational principles of our Republic, but the explication of that requires another post.)

In the case of the homeless man, the “technicality” was that, as the law was written, the man was not guilty. Appellate courts do sometimes get it right. (You know what they say about blind squirrels.) As I put it that day, my classmate’s complaint was like whining about a judge dismissing the murder charge just because the murder victim walks into the courtroom.

Technicalities matter.

Too often, though, criminal defense lawyers ignore technicalities, especially if they happen to be “small.” Like the fact that in Madera County, defendants sometimes don’t receive notice of their hearings, which results in an FTA — a “failure to appear” — charge. And, at least in Madera County, a refusal to allow the case to be put back on calendar without payment of $100 dollars.

When I went in to put a new client’s case on calendar and was told about this, I asked a simple question: “What’s the legal basis for that?”

Guess what?

There isn’t one.

The clerk tried to say that a judge signed an order saying they could do this back in 2005. I asked to see the order, stating that I thought that order would be an illegal order.

Guess what?

There isn’t one.

Or, at least, after searching for an hour, they can’t find one. But, they assure me!, they have it somewhere. And my client isn’t getting on calendar — a warrant for his arrest will remain outstanding — until we pay the $100.

It would be easy to ignore the “technicality” of this requirement having no basis in law. It’s just a small thing, which has — since 2005 at least — brought in a bunch o’ money for the County of Madera. Apparently, no other criminal defense attorney ever thought it was worth asking, “Why?”

And we CDLs, we have to pick our fights. I mean, $100 — it’s not really that much, is it? Don’t poor people use $100 bills to light their cigarettes (for which they pay close to $100 per pack now)?

It’s just a small thing, like the requirement that the failure to pay child support be willful, or that a murder case actually have a dead victim.

For my part, I’ll be filing a writ to get my client’s case on calendar.

Comments

• January 22, 2011, Ernie Menard writes: Yeah, okay. What are you going to do when your writ is circular filed? A ruling can't be made on a document that never existed - you'll have nothing to appeal. Perhaps nothing that your client produces, such as this writ, can be docketed until the fee has been paid. I'm not being totally facetious as a similar situation but without the caveat of unpaid fees- the loss of filed motions - has happened to me on two occasions, in different courthouses, in different jurisdictions. Frankly, not having enough experience or knowledge I didn't know what to do about it. Anyhow, I hope you post about the drama that will surround the ruling about the writ.
• January 22, 2011, RickH writes: There is an existing case. There is an existing complaint. And there is a clerk refusing to allow the case to be put on calendar without the prior payment of a fee for which there is no legal basis. Maybe I will find out I'm wrong, but I think this provides a basis for a writ of mandamus and prohibition.
• January 22, 2011, Ernie Menard writes: Educate me. Does the writ have to be filed with the clerk's office?
• January 22, 2011, Lyle Jones writes: I agree--file the writ. It'll be interesting to know the result.
• January 22, 2011, RickH writes: You're welcome to schedule an appointment in my office for a consultation if you wish to be educated about something. My blog is a place I write my opinions regarding things I encounter. It is not a place for the giving of legal advice. Thanks for understanding.

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Well, I’ve been a “real lawyer” for awhile now.  Heck, I’ve even passed the point where I’m no longer called a “young lawyer” and can pay lower rates to join various associations.

But I still don’t understand.

Instead, I notice that I’m becoming more angry, more bitter and more inclined to come out swinging.  Does that mean I’m becoming more naive?  More idealistic?

I don’t think so.  I think I’m becoming more realistic.

When I talk about the disconnect between what is right and what is happening, I’m not being “idealistic.”

Scott Greenfield tells about John P. Galligan defending Nidal Hasan.  The attorney has received belated (do we really ever get any other kind?) discovery, information which has been in the hands of prosecutors for several months, and when he receives it, it comes with a gag order.  Another attorney — I followed the link to this story from the blog Galligan started — is threatened with jail for violating a rule forbidding the release of evidence.  This in spite of the fact that he did not release any evidence, but only mentioned that there was evidence which people were not allowed to see.

This problem is more obvious in cases like those just mentioned involving “terrorism.”  (Although it’s not clear to me yet that Hasan’s acts were terrorism; they could just as easily be some guy who happens to be Muslim who became unhinged after receiving orders to Iraq.)  But such things happen even more frequently in “regular” criminal prosecutions.

In 2008, an attorney’s office was searched by police looking for evidence against his client.  In 2009, the United States Supreme Court held that prisoners have no constitutional right to DNA evidence — even though “[p]rosecutors there [in Alaska] have conceded that such testing could categorically establish the guilt or innocence of [the prisoner]” — that might prove their innocence.  In 2010, Kathleen Cannon, a defense attorney in Vista, California, argued about the “continuing pattern of failure”  — the systemic problem of a failure — to turn over evidence that might be useful to the defense.

This is real and really wrong!

As recently as yesterday I was forced to invite a judge to find me in contempt after he said he was not going to allow me to make certain necessary statements on the record.  (I was objecting to a particular procedure I felt was illegal.)  That same day, I received a phone call from another attorney asking if I would represent his secretary after law enforcement officers seeking evidence against one of his clients came to his office, allegedly on the suggestion of a judge, to try to get the evidence from his files — sounds like the 2008 case mentioned above, doesn’t it?

This is real and really wrong!

Frederick Douglass once said:

Find out just what people will quietly submit to, and you have found out the exact measure of injustice and wrong which will be imposed on them, and these will continue till they are resisted with either words or blows. The limits of tyrants are prescribed by the endurance of those whom they oppress.

We, the People — and by that I don’t mean the fabled group prosecutors falsely claim to represent — are about at the end of just what we will quietly submit to.  And the last line, the last possibility to turn us back to our ideals, are the realistic defense attorneys who do not shrink from getting the courts to see this.

For if we fail, so, too, will our once-great nation.

That’s for real.

Comments

• March 3, 2010, Idealism, Realism & the Practice of Law By:Fresno Criminal Defense « In The News writes: [...] http://fresnocriminaldefense.com/practicing-law/idealism-realism-the-practice-of-law/#more-782 [...]

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