Wednesday, February 22, 2017

Response to Joe Patrice's post on criminal defense lawyers

As SDFLA blog readers know, I do not use this forum as a place to discuss my cases.  I use this blog as a place to cover news in this District and other court news that I find interesting.  Every now and then there is an exception, and this is one of those times. 

Joe Patrice at Above The Law had this post where he compared me and other criminal defense lawyers to the Trump administration’s attack on the media as fake news.  In a case that I am handling, the prosecution has come up with various theories which we do not believe have any support in the facts.  One such theory was that my client was paying for the defense of an indicted defendant.  Even though this is demonstrably false and even though the prosecutor never asked us if this was true, the prosecution filed a motion setting out this false theory.  I described the motion (and the prosecution in general) as based on “alternative facts.”

Based on this quote, Patrice then compared me and criminal defense lawyers to Trump’s attack on the media as “fake news”:

Today we grieve in solidarity with the victims of Sweden while the official organs of American government ask that we kindly get over our hangups and just accept the simulation they prefer. It’s how we do things around here now.
Which is not dissimilar to the role criminal defense attorneys routinely play. When you think about it, asking reasonable people to accept all sorts of ludicrous alternative theories in the spirit of creating that shadow of a doubt is a time-honored tradition. … Because defense attorneys are definitely respecting the tricks and tactics of the administration.

But he’s got the analogy backwards. Our Founders created a system with a robust bill of rights so that the media and lawyers could act as a check on the executive branch. Criminal defense lawyers are the cornerstone of our criminal justice system, just as a free press is the cornerstone of our democracy.  The media must be permitted to call out the executive branch when it is less than fully transparent and accurate.  So too must the criminal defense lawyer call out the executive when it fails to prove its allegations. 

Patrice's thinking -- that criminal defense lawyers are out there using tricks to subvert the truth -- has led to all sorts of problems in our system: innocent people being forced to plead guilty, prosecutors holding back evidence (see, e.g., Ted Stevens), and so on.  One study says that 10,000 innocent people are convicted each year.  

Forcing the government to back up what it says with actual proof instead of baseless statements isn’t a “trick” or “tactic.”  This isn’t a defense lawyer “flipping th[e] script” as Patrice describes it.  It is exactly the script that our Constitution dictates and one that I and other criminal defense lawyers are proud to carry out.


Anonymous said...

There is nothing with another party covering legal fees, so long as they are informed in writing, the client too, and everybody signs, that the lawyers duty is to his client. Period. This is particularly true with family members, or friends, even though they may also be a target.

Fuck Joe pa

Anonymous said...

Get 'em. Well done.

Anonymous said...

"The major explanations of adversary trial are that its purpose is truth finding; that it leads to fair decisions; that it protects the people from oppression or potential oppression by government; that, as a stalemate system, it is conducive to bargaining; and that finally it is a process designed to produce publicly acceptable conclusions which project substantive legal norms, whether or not those conclusions are grounded in true facts.
The most common view of the purpose of the adversary system is that in matters relating to human, as opposed to scientific, affairs it is the best truth-finding system we can devise. This view is based
on claims that "truth is best discovered by powerful statements on both sides of a question."The simplest formulation of this view assumes that the principal issue of an adversary trial is to discover "what happened," that is, historical fact, and that a competitive contest over what happened is the best way to accomplish this goal. This view is easy to debunk as an unequivocal explanation of an adversary criminal trial. Aside from trial lawyers and perhaps judges, both of whom have economic and ideological investments in the system, it is doubtful that many people think that an adversary contest is the best way to discover what actually happened. Neither scientists, engineers, historians nor scholars from any other discipline use bi-polar adversary trials to determine facts." Spring 1987
On the Theory of American Adversary Criminal Trial
Gary Goodpaster

Bob Becerra said...

I always find it interesting when someone singles out criminal defense lawyers for coming up "with ludicrous alternative theories" when civil defense lawyers do the exact same when trying to have a jury exonerate their corporate client of liability. The implication is that there is something untoward and unclean about the criminal defense lawyer, while the civil defense lawyer enjoys the toast of the town and politicians at the local country club.

Joe Patrice said...

As the author of the original post, I'd say this raises a lot of good points, and I mostly agree. That said, here's a little more color on what I was trying to say.

I don’t think the media analogy is apt, because the media’s role should be to promote truth while the defense role is to protect people from the awesome power of the government to punish. And to that end it’s not the obligation of the defense to prove what really happened — just that the government failed to prove what did. For that reason, I don't think serving as a watchdog against government overreach and being a "purveyor of doubt" are mutually exclusive. And I definitely don't think the latter is "bad" when it comes to criminal justice.

To use a famous (but perhaps unduly polarizing) example of the O.J. trial strategy, the team put most of its resources in undermining the credibility of the cops and DNA evidence. I don’t think that’s a bad thing really. It’s what the Constitution dictates. But it just seems to me that political figures, primarily on the right, are divorcing this strategy from the courtroom context and deploying the “don’t trust the witness” and “you can’t know what really happened that night” tropes to everything.

Finally, when I say “flipping the script” I meant that I assume prosecutors will generally try to cast defense lawyers as trafficking in “alternative facts” whenever the defense strategy is focused on building a “couldn’t it also have happened this way?” narrative. I'm a little worried that the baggage of the alternative facts trend in society at large could cause more jurors to be more skeptical of defense narratives, but maybe it'll help them lose the unswerving faith they might have in a narrative coming from the government. So that could be a positive outcome.

Anyway that's what I was trying to get at and using the backdrop of this case as a jumping off point. It's not that I'm anti-defense -- indeed I spent 7 years in white-collar defense and my portfolio at Above the Law is positively riddled with stories of prosecutorial misconduct -- it's just that I see parallels and an inappropriate hijacking of the process into a political space it was never intended to serve.

So that's my two cents on the subject.

Anonymous said...

I know it's only February but I think this guy Patrice already has sewn up the DB of the year award.

Anonymous said...

Did you try many cases? Why no more comments on atl?

Anonymous said...

DOM plagiarized kellyanne ... BAD!