We Make Our Living

This is a post that almost did not get written.

Sometime within the last week, I received a letter from the father of a former client. I’ll show it to you in a minute, with his permission and appropriately redacted, but let me first say that it could not have come at a better time. This past year, as Scott Greenfield mentioned in a post this morning, has not been a particularly “feel good” year for me. Scott didn’t get into particulars — after all his post was not about me; it was about Leo Mulvihill, Jr., who quite handily and deservedly won this year’s JDog Memorial Criminal Law Blawg Post — but it’s been an ugly year.

Some of you might wonder why so many of my posts mention Scott. Truth is, without him, I might not be here right now. Scott’s become a kind of de facto mentor, albeit from a distance, whose input has been much sought, much relied upon, and much appreciated over the last year. I have been — and continue to be — subjected to extra scrutiny, searches, and occasional accompanying rudeness by the Fresno County Sheriff’s Department on entering (some) local courthouses. ^[1]Although I should point out that many deputies have been quite kind to me. One even protected me from harm recently — about which more “anon.”

(But now that I just let the cat out of the bag by the use of the word “some,” I suspect it may go back to being “all.” The lieutenant who allegedly has ordered my searches is too vindictive to recognize that my actions over the last — what? approximately one decade? — of going to court, or into the jail, or the bowels of their stations, without being any kind of problem to them —  that’s just a part of who I am. My own fight with them is in the courts; not in their houses. Instead of recognizing this, because I spoke the truth, and got a little hyperbolic about it, I must occasionally, repeatedly, be subjected to “extra attention” — when they don’t forget. My activity was an exercise of constitutional right; theirs is an occasional violation of that same Constitution.)

In that last parenthetical, I feel the same disgust and motivation rising which has caused me to fight so hard to this point: the idea that they are doing what they are doing “for public safety,” or the more-often embraced “officer safety,” ^[2]Because “officer safety” really does trump “public safety,” as evidenced by the people who get hurt when officer safety is felt to be threatened. is a joke. If I were remotely the threat they pretend, they would not “forget” to search me. If I were remotely the threat they pretend, the damage would have already been done.

The fact is, I am not the kind of threat they pretend to fear. Never have been; almost certainly never will be.

And they know it.

That’s not to say that I’m no threat. I am. It’s just that the kind of threat I am is that of the advocate I was trained to be by Judge Jonathan Conklin, who — while still a federal prosecutor — was my criminal law professor, and who trained and encouraged me to become a criminal defense attorney when my original goal was technology law. Judge Conklin believed — though as noted, he was at that time a federal prosecutor — that accused persons were entitled to an effective defense, from a staunch and zealous advocate, and that is what he taught me to be. I am a lawful threat to the government, whose work is done almost exclusively in a court of law. ^[3]Some of my work is done outside the court, interacting with prosecutors and judges in settlement conferences, or with the police questioning my clients in the field.

But to write about that — slightly, minimally, though not completely — constitutes a distraction from what I meant to write about in this post. Unfortunately, there are multiple interesting points to be made here, some of which I wasn’t myself really aware of until I started writing. ^[4]That’s one of the reasons I blog: writing is a way of thinking, of figuring things out. I must move on. ^[5]I will not be able to get into all the “multiple interesting points to be made here” in this post. Maybe I’ll come back to them in future posts.

In the years since I became a lawyer I have learned, quite contrary to what I believed before becoming a lawyer, that our system is seriously broken. It is, in fact, so badly broken that my thoughts are frequently those recently expressed by Clark, over at Popehat:

Burn it to the ground.

Burn it to the ground.

Burn it to the ground.

Well, now you know why I get searched so much.

But, as I explained in my last post (“Justice Potter Stewart and the Chamber of Secrets”), what I really want is simply a return to the constitutional principles of limited government and extensive individual freedom that existed, and were codified by our Founders, when this country was birthed. I would much prefer that happened without a bloody revolution, although I have my doubts that it can. My preference for non-violence is one of the other reasons I blog: I would much prefer that I figure out a way to sway you — and other readers — to the point that you will vote out those who do not share this desire, and that you will vote in those who will.

Meanwhile, no day passes without me remembering the words of attorney Vincent Hallinan (1896-1992) — and few days pass without me quoting the words — when he said,

Lawyers make a good living off the misery of others and any lawyer not willing to go to jail for his client has no damned right being in the courtroom.

— Vincent Hallinan

I have not yet had occasion to be threatened in court with being jailed for my advocacy, although I have come close. So it is the first part of that quote that always sticks with me. It is the song that gets stuck in your head, like “It’s a Small World.” ^[6]Sorry. Over, and over, I hear “we make our living off the misery of others,” and I wish that it were not true.

Because I wish that it were not true, I push myself. I try to remind myself. My clients are people, a few of whom are actually absolutely innocent, while more than a few may have done some bad things. ^[7]Please, do I have to always interrupt myself to remind potential jurors that you don’t know which of my clients may have done some bad things? Even of those who have done bad things, most of those are merely people with dysfunctions, who make bad decisions, and have poor social skills, which gets them into bad situations, where they sometimes make more bad decisions. ^[8]Many — if not most — of those will learn their lessons, and never re-offend, though they will be forever saddled with a criminal record. Once in awhile, one of my clients is a truly bad person who deserves to be imprisoned, as part of our attempt to rehabilitate him, or her. ^[9]And again — AGAIN! — you Future Potential Juror, you do not know until you have listened, reviewed, and honestly fairly weighed the evidence, which of these clients of mine fits into which category.

Regardless of the cause — mistake on the part of the authorities who have arrested my client, mistake on the part of my clients who have transgressed against us, or serious personality problems that cause them to deliberately commit crimes — I make my living off the misery of others.

I never forget that. It haunts me. It drives me. It contributes to sleepless nights. I never feel up to the task of ameliorating the fact that I get paid because others suffer. ^[10]This, by the way, includes those who are victims of crime. I make my living off their misery, and the misery of those I represent who are accused of having caused their misery. This is why I try to defend my clients without causing further pain to those who believe my clients are the cause of their pain, whether they are wrong, or not. I am saddened that I have to charge for the work that I do. But I have no choice: the time it takes to do this work precludes earning money otherwise.

Perhaps that finally brings me to the letter which inspired this post.

As I said, it has been a rough year. You already know about the special love exhibited toward me by law enforcement. There have been other, minor, indignities with which I will not bother. And, more recently, somebody — possibly angered over a good result I obtained in a juvenile case — appeared as a more direct threat, such that I required a deputy to escort me to my car after court, and my office was, for awhile, on lockdown. ^[11]Thus footnote 1 above.

I cannot lie. I have, more than once, thought about just giving up. Maybe, I’ve day-dreamed, I could just practice another area of law — the tech law I originally aimed for, or intellectual property law to complement my interest in photography — or maybe, just maybe, I could try to make a go of it as a professional photographer. I mean, what am I doing anyway? The system is so skewed, and my clients so screwed, that I frequently feel as though I’m merely the salt in the wound: I make my living off their misery; before they are convicted, or jailed, or go to prison, I drain them of their money.

Or I drain their family and friends of theirs. ^[12]I am talking about how it feels to me here. Thankfully, I’ve never heard a family member complain to me, “You are doing nothing, while draining us of all our money.”

But then I get a letter — this letter, which a few minutes ago I said I would show you “in a minute.” ^[13]I’m sorry. I’m notoriously poor at time estimates. It’s one reason that, though I am not cheap, I do not charge enough for my services.

This letter is a reminder to me — and should demonstrate to you, as well — that criminal defense attorneys do serve a purpose, even when we “fail.” My client was accused of crimes. The family hired me to defend him. To help him. They gave me their hard-earned money.

Even if I had won, my client’s family would still be out thousands of dollars. Thousands. In that sense, even a win would be a loss, to my client’s family at least.

And he was ultimately convicted of those crimes.

There was not much I could do.

I made my living, but felt that I had given little to my client in return.

But then — okay, with the meandering prose I’m beginning to feel I’m channeling Jeff Gamso, particularly in his most recent thought-provoking peripatetic post — then this:

In the end, though it may be hard to value, or appreciate, and often appears non-productive, the intangible services we defense attorneys provide — though the money spent on them may rightly be counted as a loss in many, if not most, cases — when we do what we can to do our jobs, that money is not wasted. Nor are our services. There is a reason attorneys are frequently referred to as “counselor.” That is the service that we ultimately provide, when we do what we can to do our jobs. We are counselors.

And that is a job which is singularly ours. Though there are many within the criminal “justice” system who make their livings off the misery of others — criminal defense attorneys are not the only ones paid to work in it — it falls to us alone to actively work to improve the lives of those we serve.

It is for those lives that we must stand firm. It is for those lives that we must fight.

That is how we must make our living.