Thursday, June 16, 2011

The criminal defense lawyer

On a few occasions I’ve been asked: “How can you defend someone that you know is guilty?”  Sometimes the questioner is thoughtful and genuinely inquisitive, in which case I’m more than happy to give a serious and thorough explanation.  (For starters, I’m not arrogant enough to believe that I can know what really happened or who is really guilty.)  Other times the person is simply condemning me and my profession, and really isn’t asking a question at all.  These instances call for more creative answers, e.g., “I like putting ax murderers back on the street.”  But reprinted below—with permission, of course—is a slightly edited version of a list-serve post by a fiery drunk-driving defense lawyer, Michele Tjader.  Her eloquently expressed rant captures, in many ways, the essence of the criminal defense lawyer’s role in our democracy.

Dear List Members:

OK.  I am getting really sick of this.  The last few trials that I have done [have] involved the prosecutor whining at me because [the case] shouldn’t go to trial, or I should stipulate to things, [or] I’m being “difficult,” etc.  In all cases, I have either had good facts that were winnable, or I made offers to settle that were rejected.   Just today, I had a case set for trial . . .  Terrible case . . . so I offered to plead to a refusal and a reckless.  No dice.  They said it was against their office policy.  I told them it was against my office policy to be a shitty lawyer and plead out cases where my client isn’t getting anything [in return]. 

Today, the ADA called and wanted to know if I’d agree to the analyst testifying by phone.  I giggled and said of course not.  Then he started whining at me.  If I liked whining, I’d have had more children.  He then said he was going to file a motion anyway.  I said fine, I’d object and the judge could decide.  So then he calls me right before 5:00 and asks me to stipulate to the test result coming in without the analyst.  I asked him if he’d been hit hard on the head between our last conversation and this one.  He finally said the trial would have to come off [of the court’s calendar] because he couldn’t get his analyst [to appear for trial].  Then he got pissy about me “not working with” him.  I told him that given I don’t receive a paycheck from the State . . . I think it’s fair to say that we don’t actually work together.

Did I miss a memo somewhere?  Did our ethical and constitutional obligations change at some point?  Why is there this incredible perception among judges and prosecutors that somehow only I’m expected to [bend] over, grab my ankles and get [screwed] from behind? . . . I mean, is everyone [on the defense list-serve] getting this crap?  When I’m accused of being obstructionist, I usually want to say “hell yes.”  I mean, isn’t that why I’m here?  We have allowed this attitude to go virtually unchecked because we’ve changed all too often from truly fighting cases to hoping for scraps that fall from the table. 

I’ve got panties older than this ADA I was dealing with today and he started to lecture me on my damn job.  I had been very nice to him up to this point[.]  Well, my definition of nice means I didn’t call him an ignorant little [expletive].  His definition of nice may be a bit [different].  But when he told me that he wanted to have the refusal hearing tomorrow and make me make [two] separate trips because I wasn’t being cooperative, I got mad.  I pointed out that the case was set for jury trial, not a refusal hearing and that given he lacked the legal authority to schedule matters for the judge, I wouldn’t be there.  Then he told me we were having a status conference at 8:30 to pick a new trial date and I could appear by phone.  I told him fine, but he had to call my cell because I’d still be in bed.  I hung up. 

If I’m asked one more time whether I’m going to stipulate to anything, I’m going to hurt someone.  I totally [understand] playing nice when you’re going to get something [in return], but otherwise, screw it. . . . Sorry, now I’m done.  I’ve had half a gin and tonic.  I’m starting to feel better.   Plus, I . . . get to sleep in.

-- Michele Tjader

Only half a gin and tonic? 

In any case, I like her attitude.  Although we defense lawyers each have a different style, we all need to remember that we’re there to fight the government and defend our client, period.  No further explanations, justifications, or excuses are necessary.      


  1. I have been searching out some of your stories and i can state that this one pretty nicely stuff. I have enjoyed your post, which nicely written on interesting story. Thanks for sharing such a great stuff with us. I hope more to come.

  2. This is a paraphrase, but as close as I can remember the defense lawyer's best response is:

    "There are people who will lie, cheat and commit all sorts of other crimes. My job is to defend my clients against those people."

  3. It is always a big question for any criminal defense lawyer and practice career every lawyer face this situation. All Lawyers follow the only rule is my job is to defend my client.