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When the spotlight turns to the judge and lawyer who did not foresee a homicide coming

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Bill of Rights (Image from the public domain.)

With the help of an attorney, Mark Castillo successfully convinced judges in Montgomery County, Maryland — where our law firm sits and where I live — to deny his wife’s begging to the court to deny unsupervised visits between Mr. Castillo and their three children. Castillo called the police this past weekend to tell them he had killed all three children at the Baltimore Mariott Inner Harbor hotel where he had taken them.

In Maryland, as in so many other states, judges do not serve for life, as opposed to their federal court counterparts. District Court judges must be reappointed every ten years. Circuit Court judges — who generally handle more serious cases than District Court judges — must stand for reelection every fifteen years. With their positions not being lifetime seats, how could one expect every Maryland judge to avoid taking actions calculated to assure remaining on the bench through re-appointment and re-election? How will this Mark Castillo front page news not affect at least some judges’ future rulings about bond and visitation by those alleged to be powderkegs of violence even if such allegations are not backed up with sufficient facts and sufficiently credible testimony?

How does Mr. Castillo’s lawyer feel for having helped Mr. Castillo avoid having the court issue an order to only have supervised visits with his children? How would I feel if I were in Mr. Castillo’s family lawyer’s (as opposed to criminal defense lawyer’s) shoes?

First, I avoid family law like the plague, with two small exceptions that did not involve being called and harangued at all hours of the day and night by divorce court plaintiffs out for venomous blood against their exes, those exception cases being my past representation of divorced veterans fighting to keep their ex-spouses from sharing in their retirement pay (which involved raising critical Constitutional issues), and my representation of an Indian tribe’s interests in assuring an underage tribal member’s access to the tribe’s financial benefits during the course of his custody litigation (whereby this gave me the opportunity to serve Native Americans, whose rights are near and dear to my heart).

Second, the closest I could have come to being in the shoes of Mr. Castillo’s family lawyer would have been if I defended him in criminal court by advocating letting him out on pretrial bond. On an intellectual level, I can argue for hours how important it is to justice and to an honest criminal justice system for criminal defense lawyers to fight tooth and nail for their clients, even if the lawyer is convinced that the client is guilty as sin. On a gut level, I believe that too many judges run roughshod on the Constitution by keeping criminal defendants locked up pretrial — while presumed innocent — in the name of risk averseness without taking the defendant’s liberty interests in sufficient account.

Nevertheless, how would I feel if I were the lawyer who successfully convinced Mr. Castillo’s judges to allow him unsupervised visits with his children? Assuming Mr. Castillo committed the heinous acts that he allegedly admitted to the police, I probably would feel so terrible that I would seriously consider clearing my calendar for a few weeks and flying to as remote an area as possible (for instance, taking a canoe and tent into the Canadian wilderness) to make sense of this situation that cannot yet — if ever — be made sense of. Would I end up changing my law practice based on Mr. Castillo’s actions? Probably not. On an intellectual level, such heinous acts seem too infrequent, even though harmful acts (including such non-violent harm as verbally abusing the couple’s children as pawns in the breakup) on a lesser scale likely are very common in the divorce court scenario. On an emotional scale, I might, at least at first, more carefully screen my clients.

How would I feel if I were defending Mr. Castillo in his pending murder prosecution, for which he faces the possibility of a death penalty trial (who knows whether Mr. Castillo turned himself in hoping that he would get executed, to finish the attempted suicide that he botched?)? As I wrote last year, it is not enough intellectually to want to represent criminal defendants. If one’s heart is not into helping the client, the client suffers. As an early criminal defense teacher-trial practitioner (who, ironically and sadly, committed suicide less than two years later) admonished: "Love your client. Even if your client smells, love your client, and stick close to your client." Who else will? Idealism may help pave the way to successfully defending criminal defendants, but nothing beats connecting with and caring about them, and developing the skills and experience necessary to successfully fight for them. Although it was but a movie, Joe Pesci in the title role in My Cousin Vinny exemplifies that caring is more important than idealism when it comes to criminal defense; otherwise, he would not have won his cousin’s murder trial.

Does this mean that I would have no feelings for the victim of a crime that I know my client has committed (how often does a lawyer know for sure whether the client has committed the alleged crime?), and that I would not understand the motivation of those wanting to take my client off the streets? No. It does mean, though, that I have not yet identified any type of client or type of crime that I would not defend to the hilt, unless the defendant were alleged to have committed a crime against someone close to me, in which case I would be conflicted out of representing the defendant in the first place. Jon Katz.