Sunday, February 10, 2008

on being a public defender: apparently we're all liars.

It's strange how much judges and prosecutors really believe that we lie, lie, lie all the time.  I often don't get involved in the "truth" or "what really happened" because no two people tell the story the same way.  This is how defense attorneys get to use the government's evidence to create their own defense without ever having to put on a witness.  It doesn't matter what I think really happened - if the evidence leads to the inference that there was a self-defense issue, then I get to argue that.  The flip side of that is, I have no interest in spinning falsehoods.  I don't need to create testimony or create evidence to create a false 'story.'  The government (usually in the form of the police department) gives me all the false evidence I need.
It really gets to me when participants in this very system seem to embrace and support the belief that defense attorneys are liars.  Often times when a prosecutor is confronted with a big booboo, the first response is to accuse the defense attorney of somehow craftily tricking the prosecutor into doing something.  It's strange.  Or when I file a notice of intent to introduce a particular defense, the prosecutor gets all *wink wink nudge nudge* "but you know he really did it." 
I can almost accept that prosecutors feel this way but when JUDGES articulate this, it disheartens me to the point of wanting to throw in the towel.  Why do I even show up for work every day?  If even JUDGES think I'm a flat out liar because I represent people who have been accused of crimes, if I'm guilty by association for representing clients who are assumed guilty because they wouldn't have been arrested if they hadn't done something wrong, why do I even need to get out of bed in the morning?
And when the government loses, it's always, "The government failed to prove each and every element" but when a defendant loses, it's, "Defense counsel hardly makes out the requirements of XYZ" or "Defense counsel's tenuous argument that ABC..."  I get called a bitch, I get all the adjectives, but the government never gets told that they are silly, ridiculous, and a colossal waste of time.  Furthermore, even if my argument is tenuous, can we please just leave out the bitchy adjectives as a way of acknowledging that IT IS MY JOB to challenge these issues?  That even if it's a loser of an argument, it doesn't mean that I should just fail to challenge evidence whatsoever?  I mean, it's like having a trial and not saying a word because I know I'll lose.
Last week I had an oral argument on a suppression issue.  The prosecutor alleged a certain set of facts that, for the most part, I agree with.  Where we differ is that I introduced an entire previous set of facts, that existed BEFORE this second agreed-upon set of facts, that strongly negates the prosecution's conclusion as to what the second set of facts means.  I discovered this first set of facts because I kept looking for a witness until the witness, in a very reluctant and hostile manner, told me what he observed.  Other objective individuals were able to verify different parts of this first set of facts, and I was so delighted to have discovered such great exculpatory material.  (although, sadly, if I can't ever get the witness in to testify, as is probably the case, then my client is in big trouble).
The government opposed my motion to suppress, mostly on the grounds that they deny the first set of facts existed because they say they looked into it and could not find any evidence this first set of facts existed.  The judge denied my motion and in the decision, the judge constantly referred to this first set of facts with words like "allegedly" and "defense counsel would have you believe that..."  The judge almost solely used the government's inability to discover my evidence (which is very strange, because it is technically THEIR evidence if they believe their own facts to be true) to deny my motion.  Basically, if the government says it never happened, then defense counsel is clearly fabricating this entire thing.  [Seriously, why would I MAKE UP facts?  I'll argue inferences but to create an entire scenario based on sheer imagination?  Why would I lie?  See above.]  I was so insulted that the judge, in no uncertain terms, called me a liar.  If the judge had denied my motion because there were not enough facts to support it, that's one thing.  But to characterize my argument the way the judge did...
I have a lot of words that come to mind in reaction to that decision, but the words I'll choose to use here are, "I'll see you at trial."


Anonymous said...

Thank you, you aren't alone, and the comforting thing about this post for meis, neither am I.

Anonymous said...

Yeah, that's one of the easiest ways to set me off, calling me a liar either directly or through implication.

Why is it that prosecutors are always presumed to be acting in good faith in the public interest, and we are presumed to be pond-scum for providing what the accused has a right to under the Constitution? Beats me, friends and colleagues.

Cardboard Cutout Lawyer said...

this drives me nuts. i keep secrets. its a privilege that we enjoy. i don't tell lies. why would i lie and make an already difficult situation immensely more difficult? these are people who seem to be totally incapable of accepting the fact that there might be two or more sides to a story. any version of the facts that deviates from their narrow sense of what happened is frequently branded as a lie. okay i'll shut up.

Seth Abramson said...

I have to disagree with you here, I don't think the judge actually thinks you're a liar, unless you've a history with that particular judge which he or she reads (wrongly, of course) as suggesting that.

I think judges know that they have to rule against defendants far more often than not, and that they don't have a good reason for it far more often than not, because the actual reason is often a) politics, and b) protecting their own jobs (or the jobs of various police officers). If they followed the case law, and statutes, and the Constitution, PDs and their clients would win 50% of the time or more, period.

Calling a PD a liar is simply the easiest way for a judge who's lost his/her moral scruples to overcome that thorny problem of having no basis in the law for deciding against a defendant.

My feeling is--if I can be totally presumptuous here--that you'll feel better about yourself, and your job, if you remember that very little of all the bullshit that comes your way is actually about you, and nearly all of it is about people more powerful than us PDs deciding that it's not such a big deal if [their] shit flows downhill.