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Trial battle and war are not elegant endeavors involving sipping Chardonnay and nibbling brie. It is all about winning

Nov 04, 2011 Trial battle and war are not elegant endeavors involving sipping Chardonnay and nibbling brie. It is all about winning

Some judges intentionally run roughshod over criminal defendants’ rights. Some do so without knowing it. Some prefer to preserve their rights, but let exceptions get in the way of that with administrative efficiency concerns to "move the case along" and sometimes with their horror over the alleged criminal activity.

I imagine that plenty of lawyers do not want to do criminal defense and other litigation work so as to avoid seeming to participate with the injustice of judges acting unjustly. I have pondered that many times. Easier than my declining to participate in the criminal justice system at all is for me to decline to seek to become qualified by a court to do death penalty defense, in the hopes that enough other lawyers will so refuse so as to result in fewer death penalty trials. Easier than my declining to participate at all is for me to decline to offer assistance to criminal defendants who wish to snitch or to help police do undercover purchases and sales of drugs, which attorney Tony Serra cogently urges criminal defense lawyers not to participate in. If enough qualified criminal defense lawyers refuse to participate in snitching, hopefully police and prosecutors will make less effort to create snitches by setting up people with their backs against the wall.

I have made peace with my decision to continue as a criminal defense lawyer because this is my primary battlefield for achieving justice, while I know that justice comes from pushing from both sides of the wall. Battlefields are not fair. Law school often is not fair, including the concept of basing almost the entire semester’s grade on one multi-hour exam. Many judges too often are not fair. Life is too often not fair. Nevertheless, as much as I urge a more level playing field for my clients, I know that victories can still be obtained on uneven battlefields, curveballs can be devastatingly boomeranged back to the curveball’s thrower, and the refusal of good lawyers to defend criminal defendants will not serve the criminal defendants.

A criminal defense lawyer can be effective inside the courthouse without appearing to kowtow to nor accept the injustices therein. A great example of that is my teacher and trial master Steve Rench, who applies the basic and effective lessons of the magic mirror. If a judge knows s/he has a poor reputation with lawyers, that presents all the more reason for the lawyer to empty the mind of any such thoughts, and to give the judge a clean slate that day. Oversimplistically, it is like trying to find the thorn in the lion’s sole and to pull it out, rather than trying to slay the lion.

It is not enough to have compassion and empathy for clients, judges, opponents, jurors and everyone else on the road to victory. The criminal defense lawyer needs persuasive fire in his or her belly, experience, ability, knowledge, smarts, intuition, good mental/physical/spiritual health, and preparation.

As to preparation and knowledge, it is time-consuming to read all the applicable governing appellate opinions that are issued for the jurisdictions where a lawyer practices, particularly for me in the last two weeks, with a more voluminous tide than usual of criminal appellate opinions where I practice. There is no other choice, though, to be effective for my clients. Therefore, I limit my pleasure reading during the week to read and analyze appellate opinions. One reason I started this blog and then a Twitter page (https://twitter.com/jonkatz5) was to inspire me to miss barely a day in reviewing new appellate opinions.

When a trial judge knows that the trial lawyer is well-educated on and fully understanding of the statutory and appellate law, the judge is more likely to consider and listen more closely to the lawyer’s legal arguments. Trial judges being generalists, the well-informed criminal defense lawyer often is going to be better informed than the trial judge about the applicable statutory law and caselaw. Unfortunately, a colleague told me about one retired judge who sometimes sits for misdemeanor cases, who apparently said that he does not take the time to read new appellate cases. I wonder how many other judges just do not take the time to read the caselaw that applies to their cases.

Plenty of appellate opinions come out that many trial judges do not like, including the Crawford/Melendez-Diaz/Bullcoming Supreme Court Sixth Amendment Confrontation Clause trio that helps criminal defendants obtain many more acquittals. Consequently, it is not enough for a criminal defense lawyer to be familiar with the key statutes and appellate opinions applying to his or her case, but to go into court fully absorbing and knowing those materials so as to counter the judge’s misunderstanding or misconstruction of those authorities as they apply to the defendant’s case.

The times are numerous when a judge has been ready to deny a motion or objection I have made, but to back down when I demonstrate how clearly the authorities support obtaining the relief I seek. The even greater skill is to win legal arguments without having an appellate opinion on all factual fours with the advocate’s trial. Being humans, even judges who seek disingenuously to reach their desired results by any means necessary do not want to look like fools to insist that 2+2=5 when presented with a Supreme Court opinion saying otherwise.

In that caselaw regard, a recent opinion from Maryland’s highest court makes clear that judges may not force criminal defendant’s to elect to testify or not before the rest of the defendant’s case in chief is complete. Stoddard v. Maryland, ___ Md. ___ (Nov. 3, 2011). Unfortunately, Stoddard found the trial judge’s actions to have been harmless error. However, I doubt many Maryland judges are going to force such an election when shown Stoddard, lest they get egg on their face for not following Stoddard and lest they face having to re-try the case after being reversed on appeal.

The foregoing considerations highlight hat criminal defense is not for those who don’t want to get their hands dirty, walk the halls of depressing-looking and -feeling jails to meet clients, and visit neighborhoods that the lawyer would otherwise not visit. Criminal defense is battle and often war, and battle and war are not elegant endeavors.  

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