For All My Public Defender Friends

Nine Ways To Prevent Job Burnout from Forbes.com. Apparently it has much more to do with diet and exercise than I ever knew. Somewhat interesting.

Can the Defense Ever Be Pro-Prosecution?

I had dinner with a bunch of criminal defense attorneys the other night. Some in private practice, some public defenders.

The subject arose of another criminal defense attorney, who wasn't present, who had recently been a crime victim. We'll call him "Vic," because that seems like a good law school hypothetical crime victim name.

Vic had decided to cooperate with the prosecution of his case. He had testified in the grand jury, he had clearly stated that he would testify at trial if necessary, and, the rumor went, he had discouraged the prosecutor from offering a favorable plea deal to the accused.

My fellow criminal defense attorneys declared Vic a hypocrite. This kind of bothered me, and I've been thinking about it for the past few days.

Before we go any further, I realize that this is my second post in a few weeks on the subject of hypocrisy. I guess I should explain that to me, a hypocrite is probably one of the worst things you can call someone. Everything else: a bitch, an asshole, a jerk, whatever, that's all in your presentation. You can have a bad day, you can be nice to some people but not to others. You can be a bitch but be right. But to be called a hypocrite is to have your motives, your words, and your actions called into question. And, I guess as a lawyer I feel that we stand behind our words, so to be called a hypocrite is to attack the very base of who we are.

So, when I hear someone called a hypocrite, it gives me pause. I want to think about it, analyze it, discuss it. Because it's not a term I throw around loosely.

And, further, because I know there will be some confused commenters that say I'm calling Vic a hypocrite, or that it's wrong for me to call Vic a hypocrite - I'm not. In fact, I'm questioning whether Vic is a hypocrite, so it's quite the opposite.

So, the argument from the other criminal defense lawyers went like this - Vic argues all day long to give people (his own clients) a second chance, asks the prosecutors and the court to go lightly on his own clients, to take his client's circumstances and backgrounds into account. So, therefore, he's a hypocrite when he argues for the opposite for the man who perpetrated a crime against him.

One guy imitated Vic, exaggerating, "Oh, your honor, my client killed his mother, please let him go. But give the maximum to the guy who stole from me."

Another said, "Oh, sure, he fights the good fight, but when it happens to him, it all goes out the window."

(If you haven't guessed, Vic wasn't all too popular to begin with. But some of that may have been well deserved. That's another post.)

So, I want to know, in particular from the other criminal defense lawyers out there - is it wrong for a criminal defense lawyer to want someone prosecuted?

I guess I've always seen the criminal justice system as an adversarial one, a yin and a yang. Every case has a prosecutor, who represents the government and the victim, and every case a defense attorney to represent the defendant. And, presuming of course that Vic isn't representing the defendant here (he's not!), I think it's perfectly within his right to advocate for a tough prosecution and leave the defense to fight for it's side.

And, further, following this line of logic, a defense attorney must always be on the side of the defense. But, what about when that's at odds with your own defense? In other words, let's say there are cross-complaints, e.g. your client is accused of assaulting another person, and that person is accused of assaulting your client. Don't you want to see a successful prosecution of that person, as it might help your client's case? What about when police are prosecuted, for brutality against your client, for example? Is the non-hypocrite defense attorney supposed to be pro-defense, which is the police, or pro-prosecution which is your client? What about when the complainant lied to have your client arrested - can you wish that the complainant be prosecuted for filing a false complaint, or is that hypocritical?

So, what do you think - can the principled defense attorney ever be pro-prosecution?

Let The Record Reflect...

Just when you think YOU'VE had a bad day in court, you get to read the transcript of a really bad day in court.

Court reporter to razor-wielding defendant: "I will beat the shit out of you." - By Bonnie Goldstein - Slate Magazine

Let this be a reminder to all of our clients - everything you say and do in the courtroom becomes part of the record.

And to court clerks, commentary like "he was depressed and a broken man the last time," probably don't help the situation when the man really is depressed and broken.

He probably looked "better" because this time he had a plan, and a weapon.

(Whereupon there is screaming.)

Doomed to Repeat It

So... remember last year, when tax day was approaching, and I couldn't find my W-2s? Do you think maybe I learned something from that?

Yes, I learned that I should have left them on the coffee table, where I throw the mail every day. Because then, at least, this comment I left on my own blog would be like a little breadcrumb, leading me in the right direction.

Also, last year I was apparently worried about finding my papers by March 20th. This year, because I'm a busy private law firm lawyer, it's April 9th and I'm going to be cutting it even closer.

Guess we know what I'm doing this weekend.

Conflict Avoidance Behavior

One of the many perks of representing wealthier clients is that they can afford expert evaluations.

They can go to doctors of all different specialties, who can diagnose their conditions and write glowing letters to the court.

In particular, they can go to psychiatrists and psychologists who can write about their condition (most often, depression) and how that led to their behavior. And how they're getting treatment now so it won't happen again. And how their condition would make it impossible for them to survive in jail. Sometimes it helps, mostly in those on-the-cusp cases.

In sex cases, the psychiatrist will do an evaluation and report to the court the likelihood that the client will commit future sex offenses. This can help the client, for example, be placed in a lower classification as a sex offender.

One thing that surprises me is how honest clients are with the psychiatrist. They know exactly why they're going there, they know that the report is being prepared for the court's review. But they'll admit their fantasies about children and all of the times that they acted but didn't get caught. I don't know why - maybe they're relieved to finally be able to spill the details to someone. Maybe the psychiatrists are just really good at getting people to talk (that is their job, after all). Maybe our clients aren't too bright, and it never occurs to them that it might be better to downplay their symptoms a little bit. I don't know.

But regardless, the reports are always interesting, although sometimes disturbing, to read.

The other thing that is disturbing is that every single male client, no matter what they were arrested for - whether it was a sex offense, drug offense, traffic offense, whatever - admits to the psychiatrist that they have had sex with a prostitute. Every single man. Young or old. Single, married, with children, doesn't matter.

All of the clients are each told a few times - at least once by us, at least once by the psychiatrist - that there is no doctor/patient privilege, that everything they say will end up in this report that we will see, the judge will see, the prosecutor will see, maybe even their future parole officers.

So, why, then, will they sit in my office, with their wife, and say, "So, how did that report come out? Is it good? Can I read it now?" As if they're just so proud of themselves. At first, I would pass it to them in a sealed envelope, and I would say something like "You don't have to read it now, during out appointment, you can just look it over when you get home." And, invariably, the client would take the envelope and pass it to his wife. And the wife would thumb through it until she finds the mention and gets all upset, right there in my office.

But I can learn from a bad situation. This last time, when the client asked, I said, "The report is fine. So that we don't take up time reviewing it during our meeting, I'll give it to you at the end of our meeting." I guess he had seen it in the file, which was on my desk, just in front of me. Then my client reached across my desk and took the envelope and handed it to his wife. What was I supposed to do? Fight him for it?

I decided to play it cool. I kept talking, keeping an eye on his wife as I went. I knew the first two pages were basic biographical information, a description of the allegations. I watched her out of the corner of my eye, as she flipped to the third page, to the worst, most graphic information. I saw the color drain from her face. I don't know how her husband didn't see this coming, but I knew I didn't need to sit there and watch it.

"I'm sorry, I have to take a phone call, I'll be back in a few minutes." And I stepped out.

I could immediately hear shouting. I stayed close - I figured if I heard anything break, I might need to step in and make sure it wasn't anything of mine. And I figured I could go back in when the arguing ended.

About 10 minutes later, it seemed kind of quiet, so I made my way in, nonchalantly saying "I'm sorry about that. Now the next thing we need to talk about is..." I tried not to look at his wife. But then she interrupted, saying, "We're going to need a few more minutes." I saw that her eyes were all red and teary.

So, ok, I said, "Sure, no problem, just come get me when you're ready" and stepped out. I went and hung out in another lawyer's office for about a half hour. He joked, "Now you know why we don't do family law in the firm." Ain't that the truth, I can't imagine dealing with this drama every day. Finally the client and his wife came out. He saw me and said, "My wife says we have to go home, my wife said we'll reschedule to come back another day." Alrighty then.

I'm thinking my strategy for the next client is going to be to meet with the client in the conference room and "accidentally" leave the report in my office. Then I can "go grab it" to give to the client on their way out.

Now, if I could just find a way to wait until they're all the way in the elevator to hand it off...

Seriously, if I wanted to hear couples fight, I'd still be living with my parents.

On Judgmentalism and Vegetarianism

To be clear, I thought the host was wrong to say "oh well, I cooked with meat, but it's ok because he's an overweight vegetarian." And I think anyone has the right to eat (or not eat) whatever they choose. But, when you make a point of changing everyone else's meal to meet your wishes or needs, I think it's fair to assume you might open yourself up to their questions or concerns. And I think that it might be better to be open to answering questions that to have people make false assumptions about you or your motives.

I just thought it would have been more fair for the host to ask why the guest was vegetarian than to assume he was a hypocrite because of his weight. I thought she was wrong to assume he was a hypocrite. I don't see how that's judgmental of me.

Truly, I don't have any problem with anyone choosing to be a vegetarian. And I'll admit that I am bothered by the many vegetarians that I'm exposed to that are so preachy about their vegetarianism. Or, to be fair, maybe I only notice the preachy ones more because they are so outspoken. So, if there's a quiet go-with-the-flow vegetarian out there, good for you, eat what you want.

I guess it's hard for me to swallow (bad pun) because I was raised that if you are invited to someone's home for dinner, you do your best to eat what is put in front of you, short of maybe life-threatening allergies. I think asking your dinner host to change the entree to make it vegetarian (thereby effecting someone else and maybe many other people) is different from choosing a vegetarian entree in a restaurant or choosing not to buy meat at the supermarket (effecting only yourself). And I think it's different from asking that they leave the honey off the top of a dessert too. (Without knowing the recipe, I imagine that the honey could be left off only your dish and everyone else can enjoy their honey. If not, one could always skip dessert, it would be less awkward than sitting through the main course while everyone else eats.) I guess it's better to ask ahead than to show up for dinner and not eating anything but the salad (depending on what, if any, side dishes are offered), but maybe the way I raised has something to do with it. As a child, I politely swallowed many a brussel sprout, despite my wishes.

Which, I guess, vegetarians would argue, is different. I understand that, to some, there is a difference between my "dislike" of brussel sprouts and a vegetarian's "decision" not to eat meat. I don't know if I agree with the comparison of a vegetarian house guest to a Jew/Muslim who requests a Kosher/Halal meal. I guess, for me at least, that might I keep coming back to why the vegetarian is a vegetarian. I mean, in 7th grade I was a "vegetarian" but I certainly I don't think I was in any position to say "By the way, Mom, let grandma know she needs to cook a special vegetarian dinner for me." I could maybe eat an extra serving of salad and skipped the entree. But I certainly don't think my vegetarianism was the same as a Jew's request for a Kosher meal.

My post began because I was questioning the host's behavior, I thought she was wrong to be judgmental of the vegetarian. But I guess by admitting that I do sometimes wonder what is behind a vegetarian's decision, whether it's a fad for them like it was for me, or whether they have some commitment to it, I exposed myself as judgmental - if you think having questions is the same as being judgmental. Finally, then, I was judged by the vegetarians who left comments. So, I guess judgment is something that is going around.

On Vegetarianism

On the subject of hypocrites, here is today's question: Are vegetarians hypocrites?

First, the preface, which is probably pretty obvious if you're a long time Blonde Justice reader: I eat meat. Plenty of it. And I enjoy it.

I think that I tried a little stint as a vegetarian, maybe in junior high, I'm not too sure why. My first guess is that my friends were doing it, but I can't really remember if that was true. Anyway, it lasted maybe a month, at the most. I remember the night it ended: I went out for Chinese food with my parents - I can remember which restaurant, what booth we sat in - and I ordered my favorite, lemon chicken. Before the waitress could even walk away, my father asked me, "I guess you're not a vegetarian anymore?" Um, no, I guess not.

In a way, I thin I've always kind of associated being a vegetarian with this kind of junior high phase. And obviously, it isn't for everyone, but it was for me, and many of my friends. So was writing really terrible poetry. And, so, just to admit my biases, I think that for me, when someone tells me they're a vegetarian, I have just a quick passing thought of, "What are we, in junior high?"

Ok, so how did this question of vegetarians and hypocrites arise? Last weekend, a friend of mine had a little dinner party. One of the guests was a vegetarian (actually, I think he's vegan, but whatever). No, he was not in junior high, he was a grown man. This vegetarian also happened to be, under any medical definition, morbidly obese. After dinner, as we were cleaning up, the host remarked to me, "I didn't realize until it was too late, but I used chicken stock when I was cooking. I guess it doesn't matter. I don't know how he can say he's a vegetarian and be that overweight."

To tackle the issue of whether vegetarians are hypocrites, I think we first need to grasp why a particular person is a vegetarian. A few reasons that come to mind, although I'm sure that there are many more, are:

• The most common, the "I love animals" reason.
  
• Health reasons. These vegetarians believe that there are health benefits to avoiding meats or certain meats.
• Environmental reasons. These vegetarians believe that land could provide for more people if it was growing vegetables or grains for human consumption rather than being used for animal grazing. Also maybe because cattle let off greenhouse gases too, I think.
  

So, let's assume, just for sake of argument those are the only 3 reasons for being a vegetarian.

Now, let's say you see a vegetarian wearing a leather jacket. Is he a hypocrite? It really depends on what his reason is. If he's an "I love animals" vegetarian, than yes, he's either a hypocrite or sorely misinformed about where leather comes from. But if he's a "health reasons" vegetarian, there is probably no conflict.

I'd need to do more research to decide whether an "environmental" vegetarian can or should wear leather - I would assume grazing cattle that have a future in leather are just as bad for the environment, but I guess I could see the flip side - Native Americans used all part of the animal - ate the meat, used the hides - and they are/were better for the environment than we are. But the truth is, the modern slaughter houses probably aren't providing hides to the tanner, unless maybe the "environmental" vegetarian lives on some kind of eco-commune, and they raised an animal in some eco-friendly way, and killed the animal for the sake of the group, but he didn't eat it (because he's an "environmental" vegetarian), but he got the jacket. But by that description he could have eaten this animal too, so this isn't making any sense, but whatever, now you see how my imagination works.

Ok, next up, a vegetarian who doesn't recycle. Is this hypocritical? Again, we go to the reason. If he is a vegetarian because he's worried about his cholesterol or something, who cares if he doesn't recycle. If he's an "I love animals," he probably should recycle because what's good for the earth is good for all animals, but I can see how that is a little more remote possibly. But if he's an "environmental" vegetarian, sure, he's a hypocrite.

Ok, finally, is an extremely overweight vegetarian a hypocrite? Sure, if he's claiming that he gave up meat to improve his health but his whole diet consists of pizza and cake, he's either a hypocrite or pretty uninformed in the ways of healthy eating. And we're not even talking about pizza with whole-wheat dough. But I think you can be an "I love animals" vegetarian or an "environmental" vegetarian, and acting strictly within those themes, still be plenty fat.

So, no, I don't think an overweight vegetarian is necessarily a hypocrite, but he might be one. It might not hurt to take a minute to ask your vegetarian house guest why he is a vegetarian, unless you feel like you would just be indulging his junior high attention-seeking-behavior.