IOWA CHAMPION

Do criminal defense attorneys need a heart?

Houston Criminal Defense Attorney Mark Bennett is responding to comments he made that most judges and prosecutors in his part of the country lack the "real world experience" that leads to empathy. At the end of Mark's post, he said that "empathy for everyone — accused, complainant, cops, judge, adversary — makes a better lawyer on either side of the courtroom".

The post has had me thinking all day because I've spent about equal time now as a prosecutor and a defense attorney.  I agree with Mark on most of what he says, especially that prosecutors and judges need to have empathy for everyone involved the cases they handle.  Empathy helps prosecutors find what they are obligated to seek...justice. The same goes for judges; if they are not in tune with both sides of a case, how can they reach a fair result.

Now, maybe I'm setting a double standard up here, but I disagree that what is good for the geese is good for the gander.  Empathy is not a good thing for a defense attorney to have, other than for your client.

As a defense attorney, I don't want to empathize with the "victims" of my client's crimes.  I'm not cold-hearted.  I just think it doesn't do my client any good to emotionally identify with the accuser or the police.  I'm not saying that you have to be ignorant of the fact someone may have suffered a loss, or that the cops witnessed some tragedy.  I'm not saying you turn into Captain A-hole when you cross examine the parent of someone who's been murdered.  I think empathizing with them, however, goes against the mindset of being a zealous advocate for our clients. Personally, it would make me lose some of the fire I have to defend my client.

I think a more important character trait for criminal defense attorneys to develop is integrity. Every person that you come into contact with should be treated with integrity. Everything that you do should be well thought out, and executed with integrity.  Everyone knows that your obligation is to fight for every concession and advantage you can gain in a criminal case. Don't pull any punches, but make sure you're not hitting below the belt. 

I'll give the accuser or the police sympathy, but not empathy...at least not until the case is over.

The ultimate defense lawyer

Jamie Spencer had a terrific post analyzing Western Justice's suggested strategy for law students to use on the upcoming ethics portion of the bar exam (the MPRE).  According to Western, you must first analyze the test questions and determine WWJD (What would Jesus do). You then get the correct answer by choosing the opposite course of action: "WWLD" (What would lawyer do).

The original post by Western was entertaining, but it was also a bit of a pot-shot at criminal defense attorneys on "moral" grounds. As Jamie's response points out, Jesus could be considered the most important criminal defense attorney in history:

"This is the basis of Christianity itself. Sinners (i.e. all of us) have an advocate with the Father. Confessing your sins to Jesus and repenting through him – not the Pharisees – that’s the path to eternal salvation.

Jesus is the ultimate defense attorney."

Thanks, Jamie. Now when I tell people that I'm doing God's work, I can back it up with Scripture!

Courthouse Special Election and my first week in review

Rush Nigut has a great post about the Polk County Courthouse  on his Iowa Business Law blog.  The courthouse referendum is April 29th.  I am hopeful that the residents of Polk County will realize that the time has come to replace the bulk of the 108 year old building's courtrooms with a new structure.

I spent most of today ripping out the flooring of our kitchen and main hallway.  Pry-bar, mallet, chisel, circular saw and lots of help from my father-in-law.  I watched North Dakota stomp all over Princeton in the NCAA Men's Hockey Midwest Regional while I was doing that.  I'm originally from North Dakota and even though I'm an NDSU grad and can't stand the Sioux for all other sports, I am a die-hard when it comes to their hockey program. Anyway, on to the other point I wanted to make with this post...

The reasons I started doing this blog were a mix of a desire on my part to slow down a little and think a bit more about the practice of law and the issues facing criminal defense attorneys and some marketing advice from my web-guy Jake (who has been very patient as I obsess about this). 

I am one of those people that sort of "wound up" in law school and I'm still not quite sure how I ended up as a criminal defense attorney.  Up to this point in my career I haven't really paid that much attention to the bigger picture in regards to criminal law; it has been a job, if I won the lottery it would all be a distant memory.  But I've started to feel differently lately, that this may be a calling for me, that I have the opportunity and ability to do some good things.  This blog is first expression of those thoughts, and while my idealism could have been trod upon fairly easily, I instead got a lot of encouragement from the legal blogosphere.

I want to send my thanks to Rush and some of the other people who have taken their time to point me in the right direction.  Scott Greenfield gave me a lot of good advice early on and has given me some exposure on his blog Simple Justice. Douglas Berman also helped me out this week on his blog Sentencing Law and Policy, an extremely informative site that is a must read for every criminal defense attorney. I also want to thank Gideon, Nicole Black, Ronald Coleman, and Kevin Underhill. They all have really professional, well written blogs and they are all examples of how legal blogs should be done.