A Few Ways to Look At Criminal Lawyers

(This post started with a few ideas, and then got all long and rambling, but I don’t have time to make it shorter. Sorry.)

A few years ago I had a toothache, and I made an emergency appointment with my dentist.

Her diagnosis was that the tooth’s pulp was infected around the nerve, and her treatment procedure required a lot of painstaking work using her carefully-honed skills: She started by performing a root canal procedure, which involved anesthetizing the nerves for that tooth, drilling into the tooth, scraping out the damaged and infected tissue, and sealing the hole. She then installed a temporary cap on the remaining portion of the tooth while she arranged to have a synthetic crown fabricated. When that was finished, she removed the temporary cap and cemented the crown in place to restore the damaged tooth to its approximate original shape, appearance, and function.

As a dentist, she has the equipment, the training, and the experience to do all that for me, and from her point of view, that work is what she sold me to earn my money. But that’s not why I went to her office. I didn’t just wake up and decide, “I’d like to get a root canal and restoration today.” When I called her office, what I wanted was for her to make the pain go away.

That’s a key distinction for anyone selling a product: You have to remind yourself to think not about the product you produce, but about the benefit your product produces for your customers. There’s a difference between what you’re trying to sell and what your customers are trying to buy.

During periods of rapid change, the gap between what a producer is selling and what consumers are buying can grow so large that it separates producers from consumers completely, and changes the market on a massive scale. Companies like Kodak and Fuji used to compete in the huge market for 35mm camera film, which people used for everything from professional photojournalism to snapshots of kids’ birthday parties. As it turns out, however, the film companies were selling film, but what their customers really wanted to buy was pictures. So when digital imaging got good enough and cheap enough, almost everybody switched to digital photography, and the whole film market crashed to a fraction of its former size.

Smaller examples are plentiful. For the most part, grocery stores sell the ingredients for preparing meals, and their customers buy ingredients they plan to use in meals, which works out to about the same thing. But when someone knows they won’t be able to devote a lot of time and effort to preparing a meal, they’re not just looking for basic ingredients any more. They’re looking for a way to save time. And the marketing materials for products like minute rice and microwave meals tend to emphasize that. They may be selling rice, but they know their customers are buying themselves some spare time.

Cooking food is also a way for people to show they care, and many foods are marketed not just as tasty morsels, but as tasty morsels that will show your family how much you love them. Or at least as tasty morsels that will make you feel you’re showing your family how much you love them.

That’s also a big selling point for a lot of children’s medicines. Pharmaceutical manufacturers may be selling dextromethorphan or guaifenesin or pseudoephedrine, but they prepare their marketing plans knowing that customers are buying the comforting feeling that they’re taking good care of their children. With some over-the-counter products, that feeling of taking care of their children may well be the only real benefit the product has to offer. (I’m looking at you, Vicks VapoRub!)

I suspect there are similar gaps between producer and consumer when it comes to selling criminal defense services. Over at Simple Justice Scott Greenfield posted this awesome-yet-horrible-yet-hilarious ad from Pennsylvania criminal defense lawyer Dan Muessig, who clearly has his own theories on what his clients are really buying from him:

http://youtu.be/5KfACTAOPa0

There’s already been plenty of talk about the ethics of the ad from Scott and others who know a lot more about legal ethics than I do, so I won’t re-hash any of that here. But what struck me about the ad was the fact that the people depicted as his clients are almost universally shown as being guilty. Not in the legal sense perhaps, but certainly in the colloquial sense that they actually did something bad.

Each client scene includes overlaid text such as, “Crimes Committed: Burglary, Home Invasion, Armed Robbery, Aggravated Assault.” There’s no equivocation here, the crimes are described as “committed,” not just “charged,” and in most of the scenes, the clients say “Thanks Dan!” while clearly in the process of committing further similar crimes. And he doesn’t describe his clients as “clients” or “defendants” or “the Citizen Accused.” He calls them, quite frankly, “criminals.”

I thought this was an interesting change of pace from a lot of lawyer advertising, which is usually heavy on standing up for you and protecting your rights while politely avoiding mentioning that many of their clients quite likely committed crimes. DUI/DWI lawyer advertising is especially tedious, depicting almost every client with some variation of “I only had a couple of drinks, but the police stopped me, and now they’re charging me with a DUI!” That seems like a sensible way to advertise for DUI clients, most of whom do not think of themselves as being criminals (the way a car thief or a drug dealer would), but as normal people who just got in a bit of trouble and need a lawyer to get out of it. And their lawyer is going to do some kind of legal thing — with motions and evidence, and maybe witnesses and testimony — but like me at the dentist, all they really want is for the pain to stop.

The fact is, though, their lawyer would be just as happy to take their case if they got totally wasted, hit six parked cars, damaged a pursuing police car, and blew 0.45 on the breathalyzer. For the third time. Because criminal lawyers solve legal problems, including legal problems that people bring on themselves through stupidity and evil acts.

Lawyers don’t usually talk publicly about those kinds of clients (I assume out of a combination of duty to the client and the desire to not make it easier for lawyer-haters to harass them), which led me to leave this comment:

I do have to admire how unapologetic the ad is. I once offended a criminal defense lawyer when I offhandedly described his job as something like “Helping criminals get away with crimes.” I understand why he objected to that characterization, because that’s not quite what he’s selling, but if I were the client (and I more or less did the crime), then that’s pretty much what I’d be looking to buy.

I was referring to the exchange I describe in this post, and re-iterating the point I made there, which was that it’s all very well for criminal defense lawyers to say they are defending people’s rights and holding the state to the burden of proving it’s case, but when it comes right down to it,

I’m pretty sure that if I’m charged with a crime, it’s my lawyer’s job to try to stop the state from convicting me even if I did it.

In his excellent response to that post, criminal defense blogger Gideon restated my point as,

Is “I’m defending the Constitution” merely the sugar-coating on “helping them get away with it”?

(Ultimately, he decided that in most cases, criminal defense lawyers don’t help criminals get away with anything, a conclusion I basically agree with.)

However, Gideon’s restatement of my point wasn’t really what I had in mind. I don’t think talk of “defending the Constitution” and “protecting people’s rights” is some kind of smoke screen or ruse, covering up for something more nefarious. What I’m claiming is that the lawyer/client relationship is another example of the producer/consumer gap: Lawyers and their clients have different views of the same activity. If the client really did something wrong, he’s probably hoping his lawyer will help him get away with it.

(That’s certainly true of my own criminal career, which consists entirely of violations, such as speeding tickets and parking at expired meters. There were a few instances where I had no idea if I did what the officer said, and there were one or two times where I thought I might not have been guilty of the exact thing I was ticketed for, but most of the time I was probably guilty of something. And in many of those cases, I went to court — once with a lawyer — to try to avoid the maximum possible consequences for my crimes. It mostly worked.)

As an aside, after I posted my comment, another commenter asked,

What would you be looking to buy if you hadn’t done the crime?

Obviously, if I’m innocent, then I’m not trying to get away with anything, because I didn’t do anything. I’d be an innocent man trying to avoid a conviction for crime I didn’t commit. But because the Innocent Man Wrongly Accused is such a staple of every courtroom drama ever written, I responded to the question with a tongue-in-cheek reference to the most famous lawyer in the world when it comes to defending only factually innocent clients:

Well then I wouldn’t be needing a lawyer to help me get away with a crime, now would I? I’d be An Innocent Man, Wrongly Accused of a Crime I Did Not Commit. Everyone knows you hire Perry Mason when that happens…

The commenter’s response just confused me:

I think he’s dead. Are you implying that now that he no longer needs employment, the DAs never charge the innocent?

Uh…no. First of all, Perry’s not dead, he’s fictional. (And available on DVD.) And as for the part about whether I’m implying that DAs never charge people for things they are innocent of….no, that’s not what I meant. I read too many criminal law blogs to believe that.

I’m bringing this up because Scott quoted my first comment above in a more recent post and then went on to ask questions similar to Gideon’s:

All of this raises a very real question, which is something good parody ought to do.  We can wrap ourselves in the glorious duty of defending the rights of all, protecting the Constitution, but is that just a subterfuge for what we really do?  Is that what the accused hire us to do?  Is that what criminals want us to do?

I think those are are very different questions, and my answer to all of them is that just because criminals want to get away with crimes doesn’t mean that “the glorious duty of defending the rights of all, protecting the Constitution” is a subterfuge. Both of those things can be true descriptions of the same activity.

(If you ask me what I do for a living, I’d say I write web applications in C# that run on Windows servers. But to my employer’s customers, I’m helping to provide a service that enables them to run parts of their business more efficiently. Both of those descriptions are accurate.)

I guess also that if I’m going to say things like “defense lawyers can help criminals get away with crimes” I should make it explicit that I don’t think there’s anything wrong with that. I think bad people sometimes get away with crimes because they have good lawyers, but that has to happen from time to time if we’re going to use a system of adversarial law to protect our rights. I sure don’t blame criminal lawyers for doing the job our society needs them to do.

My general impression of the criminal defense lawyer’s proper role is pretty much based on Ken Lammers’s summary of the criminal defense lawyer’s job:

Basically, whether you are trying to get a good deal or a verdict of not guilty (as few and far between as those are), as a defense attorney you almost invariably represent a client’s liberty interest against society’s long term interest in making him conform and the government’s use of power to either force conformity or seek vengeance.

Note that absolutely nothing in there depends on whether the client is factually guilty or innocent, or who is right and who is wrong, or whether the offending behavior should even be against the law. Lawyers work for the good of their clients, not for the good of society, even if — as in the Muessig video — the freed criminals go on to commit more crimes.

As The Blonde One says:

If a guilty client goes free, I don’t feel bad – I think that’s the way the system works, and the police and prosecutors should have done their job. Our system is imperfect – innocent people go to prison, guilty people go free[…]

Sure, it would be disturbing to know that the person you represented later killed someone. But I don’t think defense attorneys are responsible for every later act of their clients. If I represent a completely innocent person and after his acquittal he goes out and kills someone, either accidentally or purposely – am I somehow responsible for that death? No. Likewise, it’s not my Nobel Prize if he wins one either. I only deal with the crime charged, the single accusation – not my client’s whole life – good or bad.

That sounds about right to me. Because in addition to the view that lawyers have of their job, and the view that their clients have of their job, I have my own view.

Since I seem to be in the mood for quoting people who are a lot smarter about the law than I am, I’ll just use this excerpt from Justice Edward Douglass White in Coffin v. United States:

Ammianus Marcellinus relates an anecdote of the Emperor Julian which illustrates the enforcement of this principle in the Roman law. Numerius, the governor of Narbonensis, was on trial before the Emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Cæsar! if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?”

Without someone assigned to stand up for the accused, we would all be at the mercy of unscrupulous accusers.

And it’s not just the innocent who need protection. There are a lot of crimes you can commit without knowing it. Pretty much all of my traffic violations were like that: I didn’t realize I was speeding, I didn’t realize there was a No Left Turn sign, and so on. Everyone commits crimes like this — paperwork mistakes, various kinds of negligence, trusting the wrong people a little too much — and there’s not a lot we can do about it. Harvey Silverglate famously guessed that we all commit three felonies a day, and the punishments for some of them can be shockingly disproportionate.

That standing up for the accused sometimes frees the guilty is part of the price we pay for trying to create a system that is truly just. I may think that both O.J. Simpson and Casey Anthony got away with murder — and I suspect George Zimmerman got away with something — and some of them may have gone on to do other bad things, but to the extent that their lawyers helped them do that, I don’t blame them a bit.

So why bring it up at all?

Mostly because it amuses me. I am struck by the contrast between the people who become criminal lawyers and the kind of work that they do. Criminal lawyers are smart people who got good grades in college, did well on the LSATs and got into law school, and then spent three years in a very difficult curriculum. They are highly educated, highly motivated people with some very expensive training. And then they decide to spend the rest of their lives working for drug dealers, car thieves, prostitutes, embezzlers, tax cheats, rapists, and murderers.

(Some of them have made very interesting life choices. Mirriam was born in Kandahar, Afghanistan, came here to one of the richest countries in the world, got herself a law degree, and then decided she wanted to defend our criminals. Rick Horowitz was a successful IT professional who decided it would be a terrific idea to get a law degree so he could make a ton of money in the fast-growing and lucrative field of technology law. But somewhere along the way, he decided he’d rather spend his career defending kids accused of gang crimes.)

To me, Dan Muessig’s video was a funny subversion of that contrast, as he tries to establish some street cred to attract clients. He’s more direct about his branding in this Slate piece: