Readers of my last post will sense a major dissatisfaction on my part when it comes to blogging about the Law.   I have to say that the responses to that post were are encouraging.  To the readers who posted those responses: thank you.  Were it not for those comments, I suspect I would, after all was said and done, consider everything simply said…and done.

Instead, I’ve spent some time thinking about how to move forward.

The ennui that I’ve been feeling over blogging here is not completely independent from what I’ve been experiencing in my practice generally.  But it’s particularly impacted me when it comes to writing because a significant aspect of what’s troubling me revolves around trying to make myself understood.

If I can’t make myself understood here, on the blog, in writing, where I have time to think things out, edit, rewrite, start over, and tweak until I think I’ve gotten it right…well, then something is wrong.  In spite of having been successful in pretty much everything I’ve ever tried, I’ve a tendency — trust me, a life-long tendency — to think this is my fault; that I’m not good enough.  Even when large numbers of others tell me I’m doing great, I’m prone to thinking it’s not enough.  If only I were better, worked harder, did something different, everything would come out okay.  But, here, now, I really don’t see it that way.

And that’s turning me into a different kind of lawyer, I think.  I feel myself becoming “harder”: less concerned with what others think.

In my world, that’s “Bizarro thinking.”  At least, I believe it should be Bizarro thinking.  After all, my number one job, my duty, usually involves changing people’s thinking.  Either I’m working to change the mind of a prosecutor, the mind of a judge, the mind of a juror, or I’m working to change the mind of my client.  Convincing people of things is part and parcel of what I do.  So being less concerned with what others think creates some cognitive dissonance, among other things.

While I was writing the above, for example, one of the comments that came in provided a perfect example of what distresses me most often.

Before I get into the details of that, though, let me say this:  this comment which distressed me is also one which encouraged me the most.  The author — whose blog I sometimes read, but whose name I don’t actually know — is a prosecutor.

Unsurprisingly, then, while he’s encouraging me — and please let us start off on this note, D.A. Confidential: while I was glad for all the comments left to “A Broken Fence,” I am most grateful for yours — he also notes:

I believe you need to keep writing.
That, even though when I read your posts I wonder why I bother writing myself because I feel like I’ve wandered into a section of people who mistrust me and doubt my motivations.
The legal community needs your input, your opinions, your insight.

I believe you need to keep writing.
That, even though my blood boils at some of your statements that I perceive to be unfair to good cops, decent prosecutors, honest judges.

Let me work backwards on this.

I’ve written quite a bit about bad cops.  Particularly here. The bad cops, bad prosecutors and bad judges of the world deserve every bit of vitriol I spew in their direction.  Probably more.  I’ve recently gone on record as saying that I believe the best response to most of the actions of bad cops, in particular, is for citizens to help clean up our streets by eliminating these cops.  In my opinion, if this were the late 1700s, Americans would not be the least bit confused about how to do that.

There is a danger in my talking this way — aside from the danger that some stupid cop might someday try to hurt me for it — because too often people just hear “cop” when I say “bad cop.”  When I talk about bad prosecutors, prosecutors who hide discovery, prosecutors who care more for convictions than justice, prosecutors who resist the use of DNA to get at the truth if the truth hurts their case, too often people just hear “prosecutors.”  And when I discuss judges who don’t follow the law, judges who function as prosecutors in black robes, judges who abdicate their gatekeeper role regarding questionable evidence from gang cops, judges who wouldn’t know impartiality if it was shoved up their — well, too often people just hear “judges.”

This misunderstanding is not my fault; I refuse to accept responsibility for it.  There are, as D.A. Confidential’s author notes later in that same comment, “good people on both sides.”  I have never doubted this.

That brings me to the next point, working backwards, as I said.  There is some truth to what the author of D.A. Confidential says about wandering into an area where people mistrust him and doubt his motivations.

That, too, is not something for which I can take responsibility, even though I am one of those who may mistrust and doubt prosecutors.

This morning, while waiting outside a courtroom, I was talking to another defense attorney — one who has decades of experience on me.  We were discussing the broken fence (the concept; not my article).  He pointed out that “things have changed.”  Too many people today — and he deliberately included defense attorneys in his list alongside prosecutors and cops and judges — treat the Law as a game.  “Attorneys today,” he noted, “seem more concerned with the win and are willing to twist and abuse the system to get it.”

Frankly, I don’t know how a defense attorney twists or abuses the system to obtain a win.  But that most likely gets us into a long discussion concerning the different responsibilities of defense attorneys vis-à-vis the handling of criminal cases.  That conversation will have to await another day.  For now, suffice it to say that ours is an adversarial system in which the job of the defense attorney is to try to force the State to prove its case.  We try to thwart the prosecution of a crime with the idea being that if, in spite of this, the case is proven beyond a reasonable doubt, then probably the right guy (or gal) was convicted.

But there has been a major sea change in the last few decades of American jurisprudence.  When the system our Founders created is properly functioning, it is quite difficult for the State to convict a person accused of a crime.  This is how it is supposed to be! Otherwise, we get what we have today: too many innocent people in prisons.  Too many men whose lives are stolen on the flimsiest of evidence.  Freeing innocent people 20 and 30 years after the fact — if at all — does not make up for that.  But over the last few decades, “victim’s rights” and other political considerations have resulted in a system that makes putting innocents away far too easy.

No small part of this has been trying to mitigate any part of the system which tips the scales of justice in favor of the accused.  Anything that somehow makes it easier to defend must be undone; conversely anything that makes it easier to prosecute must be supported.  Prosecutors who have lost touch with the point of their existence, those who think it’s all about the win and justice be damned, take advantage of this.  They refuse to provide discovery; they tell witnesses not to talk to the defense; they overcharge in order to encourage the accused not to risk trial: they simply cannot afford to accept any system that gives an accused a fighting chance; they cannot risk a loss.

So far have things gone and so often do defense attorneys see this that the author of D.A. Confidential has a point: we tend not to trust prosecutors.  Aside from that, the prosecutor represents the State.  It is our job to stand in the path of the State, to make their job difficult, to make them prove their case beyond a reasonable doubt.  And when we find a prosecutor who appears trustworthy, who appears willing to argue a case simply on its merits — no hiding the ball, no threats in the form of overcharging for those who insist on their innocence — the changes of the last few decades have taught us to be wary.

Not all prosecutors are deserving of this treatment, but no self-respecting defense attorney in today’s world can afford to assume the prosecutor isn’t just out for the win.  Most of the time, if a prosecutor loses, not much changes in the world; if a defense attorney loses, a human being suffers.

That this happens and that the world has changed in such a way as to make it too easy to happen does not mean that all prosecutors are bad.  Nor does initially mistrusting the prosecutor, or doubting his motivations, contradict that.  This is no longer a world where the United States Constitution holds sway.  Even where there are good prosecutors, the system has been corrupted in a way that can make things difficult for them to act as good prosecutors.

I can point to at least one deputy district attorney I know whom I consider to be braver, more principled and worthy of much greater respect than pretty much any other person I know.  I hope that person knows of whom I speak — I don’t know if that person is even a reader of this blog — because I will not name that person.  Part of what makes that person worthy of respect is exactly what the author of D.A. Confidential noted:  despite being on the opposite side of A Broken Fence from where I stand, that person, too, is “hoping, wanting, willing to mend it.”  That person’s bosses, however, won’t allow for that.  Deputy District Attorneys like that individual are instead punished for being like that.  I wonder, with a great deal of sadness, how much longer that person will be able to continue in the D.A.’s office.

And, in fact, there are more such good prosecutors, along with more than a few good cops and good judges.

There’s another reason I have trouble dealing with this.  I’m not usually writing about good cops, good prosecutors and good judges.  Those individuals have tough enough jobs without having to withstand the wrath that may befall them for receiving praise from a criminal defense attorney! I’m usually writing about the bad ones, or the flaws in our system — the Broken Fence — which makes my job difficult even where good cops, good prosecutors and good judges are involved.  And I get tired of having to point this out.  I get tired of having to say, time and again, that just because I rail a lot, write a lot, fight a lot over bad cops, bad prosecutors and bad judges, I am not saying that all cops, all prosecutors, or all judges are bad.

There’s not a lot of reason for me to be writing about the good guys, except when I need to contrast them with the bad guys.  But even I know — even when I’m railing, writing, fighting — that not all those involved are bad.  Conversely, that there are good cops, good prosecutors and even good judges is not reason to think all is right with the world.  The fence — the United States Constitution with its implied Rule of Law — is broken.

Today’s “justice” system is, indeed, populated by the Good as well as the Bad.  That doesn’t stop today’s warped system from being downright Ugly.