So, I came to this conference last year and in one of the breakout sessions one of the lawyers in the audience started crying. After 12 hours or so straight of being told things like you need to be careful of this, you need to make sure you don't do this, you need to be on the lookout for this Supreme Court case, or this amendment, etc. etc. etc., and on and on, she felt overwhelmed and ineffective. "I feel so ineffective right now," she said through her tears.
So this talk is for those of you, who like her, feel that way. I'm here to say that you're not ineffective. The problem is not you.
Now, I'm going to say a couple of controversial things that probably the national committee would prefer that I not say and so this is probably the one time you'll hear from me and then you'll never see me again, so listen closely and take this heart.
Here's the first thing:
1) You're not ineffective. The problem is the judges, The problem is not you.
[Now, I know that that may not seem all that controversial, but here's the controversial part: we have terrible judges all over the place and therefore conferences like this are bullshit. Nothing you learn here about cases and this and that has any really value because the judges don't care. And they don't care because of who you represent, which I'll talk about more in a moment.
I'm here not because I'm interested in anything that anyone here actually has to say. I'm here because I wanted to get out of town for a few days and because thanks to a scoundrel named Richard Nixon (a Republican, of course) I need something called "ethics credit."
I say this because I think the National Federal Defender's organizations are wasting all of our time. Instead of putting on conferences like this where people essentially yell at us about how we need to be better lawyers, all of that money and effort would be better served by getting on news shows and grabbing any media person who will listen and say to them what we here all know to be true: WE NEED BETTER JUDGES! WE NEED BETTER JUDGES!!!]
2) And here's the second controversial thing, all of the law related stuff that you're going to learn here, the caselaw updates etc, it's all pointless. Fuck it. Fuck all of it. None of it ever works.
Now, let's assume this is true? Because we still have to represent our clients. Now what?
I'm going to tell you. Because believe it or not, this is meant to be a hopeful presentation. There is hope. So hang on.
But first, you might be wondering: who is this guy. Why should I listen to him?
So folks, I'm an old man. And a tired man. I used to be young and hopeful. But now look at me. I turn 50 next year. George Orwell said that by the time they turn 50, everybody has the face that they deserve. So you can see for yourselves. Fair warning. Clearly, I've deserved a lot of terrible stuff.
I've been a licensed attorney for 22 years and in that time, I've made my living but defending poor people charged with crimes. That's how I've made my living. I'm a federal defender now so finally, I have a little bit of money. Mostly, though, I haven't had money. I still have law school loans. I've been a lawyer for 22 years. I've been driving the same Toyota Corolla for 23.
And man, let me tell you: I have lost. My career has basically been a decades-long string of losses. I don't know if this is a lot or if it's not a lot. I'm not here to impress you, I'm just here to tell you the truth as I see it. I've tried probably 60 jury trials and I think I've lost about 45 of them. I've tried 5 murder cases and lost 4 of them, and I didn't even win that fifth one, I just hung it and got a lesser.
My career has been trial loss after trial loss, motion denial after motion denial, and I have never, not once, gotten any sort of meaningful relief from any appellate court anywhere. Appeals don't work. Nothing, and this is the point of this talk, nothing, no tactic or technique that relies on judges doing the right thing, works.
And this has been my reality across the full spectrum of the judiciary. I've practiced across three pretty disparate jurisdictions in m career: state court in Illinois, where judges are elected, state court in Texas, where judges are elected, and federal court, where judges are not elected, and across all three it's the same: I lose everything all the time.
Now, I know that this is not personal to me. It's not like when I left Illinois the state judges there called the federal judges in Texas and said: hey, this guy is a real prick. Make sure that he never wins anything ever. [Or made they did, in which case that's just one more reason for you to be grateful that you're not me.]
So why does this keep happening? The only common denominator, other than me, is my clients. Not the specific client, of course, but the type of client. All I've ever done id represent poor people. When I was in Illinois, the poor people were black. Now that I'm in Texas, the poor people are brown. Thew results are the same: you lose.
Now, I know that what's happening to my clients, or what's not happening, is a result of their status as poor people is because the mechanisms are there, and judges can in fact use them when they want to. It is in fact possible for a case to be dismissed. All you need is for your client to be president of the United States. It is in fact possible for a grand jury to refuse to indict. All you need is for your client to be a former director of the FBI.
But if your client is a Tarahumara tomato farmer, you're going to need to come up with a plan B.
And because we are good lawyers who really do want to help our clients we're going to make a plan that takes into account the reality of our situation, just as Hannibal did when he met the Romans at Cannae. Look at this graphic with me:
Now, by the time Hannibal met the Romans at Cannae in 216, he knew this one immutable and absolute fact: there was no stopping the Roman infantry. But that was the thing that he would be expected to do. War back then was pushing. You pushed your opponent back to win.
Hannibal's great insight was to accept the reality that his forces were never going to be able to push the Romans back. So instead, he adopted a plan that accepted that reality and incorporated it into his strategy. He let the Roman infantry advance, knowing that it would anyway, and then surrounded it. Some estimates put Roman losses as high as 80,000 men, one fifth of the adult male population of Rome(!), lost in one day. (Carthaginian losses were estimated to be about 8,000).
All right, so what does this have to do with us? I propose that, like Hannibal, you accept the reality of your situation and make your battle accordingly. There is no stopping the Roman infantry. You will get no help from the judge.
What does this mean?
First, stop worrying about preserving issues for appeal. Just forget about that. You have enough to worry about as you're trying to win the case in the trial court. Now, I know appellate lawyers hate it when I see this, but you know what? It's not my job to make your lives easier. I'm trying to help my client and in my experience, if there's any hope of justice happening in court, it will come from the jury.
The hope of relief on appeal is a false hope. Simple as that. So forget it. Let the appellate lawyers curse you out about your terrible record, but you'll know the truth: you fought in the way you felt best in the only form where victory was even remotely possible.
Second, plan for the worst. The motion to suppress will not be granted. Your client's criminal history will be coming in. As will the government's prejudicial photos, their expert's ass-opinions, all of it. Them jury instructions will not be favorable to you in any way. Just know that. You cannot stop the Roman infantry. Now what?
Now this other part, as for the rest, I don't know because I don't have your case. You're the trial lawyer, you decide.
All I know are two things plus one more thing. The most important thing.
One thing I know is that if you plan for the worst, you're much more likely to win. The other thing I know is that you're still probably not going to win and that's ok because it has to be.
And the most important thing I know is that as public defenders the most important thing that we stand up for is our client's dignity and win or lose, so long as we do that, we win. And no judge can can stop us from doing that.
Here's a moment:
After the jury was dismissed, the Defendant was cuffed by sheriff’s deputies and led into the jury box where the victim's mother was allowed to address him directly. The Defendant's attorney objected, arguing to the judge that it constituted cruel and unusual punishment. The attorney also asked the judge to allow him to stand beside his client during the ritual. Both requests were denied.
The victim’s mother took the opportunity to lecture the Defendant for almost thirty minutes, calling him “wicked, bad, immoral, sinful, foul, vile, corrupt, villainous, vicious, cruel, monstrous, depraved, malicious, putrid, venomous and a coward.”
The Defendant will be eligible for parole when he’s served half of his 55-year sentence.
So nothing about that case worked out. And, probably, the lawyer made a lot of mistakes that the esteemed lecturers art this conference would readily point out.
But the lawyer was there with his client. And my take to that lady who was in tears last year: if you're doing that, you're a public defender, and a good one.