In defense of the defense lawyer

Yours truly (L) with Terry Rose (R); photo by Leo Martin

In Wisconsin, possession of child pornography carries with it a three year mandatory minimum sentence.  In other words, when the statute applies, the judge must put you in prison for at least three years upon conviction for possessing a single image.  (Yes, the legislature usurped the much-hyped “judicial discretion” in sentencing.)  And actually, you don’t even have to “possess” the image or even have it on your computer’s hard-drive!  Merely seeing the image on the web could be enough to lock you up in the state pen.  It’s a good thing, therefore, that mere child nudity might not be enough to constitute child pornography.  If it was, then every mother with a picture of her kid taking a bubble bath would be guilty and sentenced to prison.  And every major cable network would be guilty of distributing child porn for showing the movie Pretty Baby, starring a 12-year-old Brook Shields who played a child prostitute and appeared naked in the film. 

In a recent criminal case in Kenosha, my fellow criminal defense attorney Terry Rose got a child porn case dismissed on those very grounds: the image allegedly possessed by the defendant did not constitute child pornography.  This upset some Kenosha residents who took to “social media” to condemn Terry and express their uninformed and dangerous opinions.  I’ll address their specific complaints below, while incorporating some basic lessons about our criminal justice system. 

To begin, “Samuel Peter Martin,” who was quite upset with the outcome Terry achieved for his client, wrote on The Facebook that “Terry Rose is a puke. You may be a good lawyer (in your purchased ad’s [sic]) but are NOT a good person. You bring zero value to a good and just society.” 

To the extent Samuel doesn't like lawyer advertising, I actually agree with him.  But his comment is a real head-scratcher.  First, Samuel seems to suggest that Terry is only good because Terry says so in his “purchased ads,” but he also complains that Terry was literally too good in the real-life courtroom where he got the case dismissed.  See the error in logic there?  These two criticisms are mutually exclusive. 

Second, Samuel’s main criticism is that Terry is “NOT a good person” for advocating for his client.  This ignorance must be condemned.  What does Samuel think Terry should have done?  Perhaps he’d have Terry argue something like this: “Your honor, the photo allegedly possessed by my client does not meet the legal definition of child pornography.  Nonetheless, ‘Samuel Peter Martin’ and the ‘social media’ mob might not approve of my client, so I think you should sentence her to the three year mandatory minimum sentence anyway.  Actually, double that.  Samuel and his cohorts would prefer six years.” 

Third, Samuel’s last comment about a “just society” also demonstrates his ignorance of the law.  In our society, we have an adversarial system of justice.  The prosecutor makes allegations against a citizen, and the defense lawyer’s job, in part, is to read the law and apply it to the facts of the case to protect the client from the government.  In this case, because our society criminalizes the possession of child porn — and, generally speaking, does not lock people up for their private speech or even their attraction to children — the judge (not Terry) dismissed the case.

In response to Samuel’s comment, “Andy Preble” didn’t have much to add, but, as people on “social media platforms” are inclined to do, he weighed in nonetheless.  He wrote, referring again to Terry Rose, “Agreed. . . . . zero ethics[.]” 

Andy’s use of the ellipses is even more baffling than Samuel’s use of the possessive “ad’s” — but now I fear I’m just nitpicking, so I’ll jump to the bigger problem with Andy’s post. 

It should be obvious to most people that a defense lawyer defending a client is the very definition of “ethics.”  It is the exact opposite of exhibiting “zero ethics.”  In fact, the preamble to the attorney ethics rules reads: “As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system.”  Terry did just that.  His client’s position was that the image possessed was no worse than that pumped into our homes by Time Warner Cable and AT&T U-Verse (see, once again, Pretty Baby), and is therefore not criminal.  The trial court judge agreed.  And I doubt Andy wants to dive deeper into the ethics rules, but for those who do, check out the numerous rules (here and here) requiring defense lawyers to do exactly what Terry did. 

Piling on top of Andy’s comment, “Gary J. Kunich” writes: “I get that people deserve a defense, but this sickens me.” 

Here, I think Gary might be giving himself too much credit.  I’m skeptical that he does, in fact, “get that people deserve a defense.”  If he did, I doubt he would be “sicken[ed]” by a person getting the defense he believes she deserves, and then having her case dismissed because she did not commit the crime.  Keep in mind, the judge did not dismiss this case on Fourth Amendment grounds — a basis that some people incorrectly think of as a “technicality.”  Rather, he dismissed it because the defendant did not posses child pornography.  The question, then, remains: What type of defense would Gary prefer that this defendant receive?  Should Terry have substituted Gary’s opinions for the actual law?  Much like Samuel’s comment, Gary’s is a head-scratcher.

Finally, “Cheyne Dunham” writes, with regard to Terry, “I hate that curly haired fuck[.]”  Now that’s a very personal and mean-spirited attack — in other words, exactly my type of humor!  Kudos to you, “Cheyne Dunham”! 

The lessons in all of this fragmented and poorly punctuated “social media” nonsense include these: Ask questions before you form an opinion; think first, write second; and look beyond your immediate, emotional reaction to consider the bigger picture. 

And the lesson for me is this: Yes, “social media” can be absurd, as it gives everyone a platform to express any opinion regardless of how uninformed it is; but on the other hand, I prefer knowing, rather than guessing, what and how my fellow citizens think.